Mvb Financial Corp 8-K, filed Jan 2, 2025
Mvb Financial Corp (MVBF)
8-K
2025-01-02
For: 2024-12-30
View Original
Added on
April 06, 2026
About this 8-K
Mvb Financial Corp filed this 8-K on January 2, 2025, reporting on events of December 30, 2024.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
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Item 1.01. Entry into a Material Definitive Agreement.
On December 30, 2024 (the “Effective Date”), MVB Bank, Inc. (the “Bank” or “Seller”), a West Virginia banking corporation and wholly-owned subsidiary of MVB Financial Corp. (the “Company”), and Mountainseed Real Estate Services, LLC, a Georgia limited liability company (“Buyer”), entered into an Agreement for Purchase and Sale of Property (the “Sale Agreement”), which provides for the sale to the Buyer of four properties owned and operated as retail banking branches of the Bank (the “Properties”) for an aggregate purchase price of approximately $17.6 million, subject to customary adjustments at closing. The Sale Agreement has such other terms and conditions similar to other purchase and sale agreements covering similar subject matter and executed under similar circumstances and conditions.
Concurrent with the closing, Seller and FNLR MVBB LLC, a Delaware limited liability company and affiliate of Buyer (“Landlord”), entered into a master lease agreement (the “Master Lease Agreement”) for each of the Properties under which Seller, as tenant, will lease each of the Properties from Landlord. The initial lease term shall be fifteen (15) years, which may be extended, at the Bank’s option, for three (3) renewal terms of five (5) years each. The Master Lease Agreement shall constitute a triple net lease under which the Bank as tenant shall be responsible for base rent for each of the Properties, which during the initial term shall be, in the aggregate, $1.5 million per annum (“Base Rent”) plus additional operational charges. Base Rent shall increase by two percent (2%) per annum for each year during the initial term and any renewal term. The Bank will not close any branches or exit any markets as part of the sale-leaseback transaction. The Master Lease Agreement has such other terms and conditions similar to other lease agreements covering similar subject matter and executed under similar circumstances and conditions.
Also concurrent with the closing, the Company entered into a Guaranty of Lease (the “Guaranty”) in favor of the Landlord, providing for the guaranty of the Bank’s obligations under the Master Lease Agreement.
The sale-leaseback transaction is expected to result in a pre-tax gain of approximately $11.8 million. Aggregate first year rent expense under the Master Lease Agreement will be approximately $1.5 million pretax and will be partially offset by the elimination of the depreciation expense on the buildings and the investment of the proceeds.
The foregoing descriptions of the Sale Agreement, the Master Lease Agreement and Guaranty are qualified in their entirety by the agreements, which are filed as Exhibits 10.1, 10.2 and 10.3 respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet
Arrangement of a Registrant.
As referenced in Item 1.01 above, the Bank has agreed, effective upon the closing of the sale of the Properties, to lease each of the Properties on a long-term basis from Landlord. The disclosures set forth in Item 1.01 of this Current Report on Form 8-K regarding the Master Lease Agreement and the lease obligations of the Bank thereunder are incorporated by reference into this Item 2.03.
Forward Looking Statements
This Current Report contains certain forward-looking statements, within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that are intended to be covered by the protections provided under the Private Securities Litigation Reform Act of 1995. These forward-looking statements are based on current expectations about the future and subject to risks and uncertainties. Forward-looking statements include, without limitation, information concerning possible or assumed future results of operations of the Company and its subsidiaries. Forward-looking statements can be identified by the use of words such as “may,” “could,” “should,”, “would,” “will,” “plans,” “believes,” “estimates,” “expects,” “anticipates,” “intends,” “continues,” or the negative of those terms or similar expressions. Note that many factors could affect the future financial results of the Company and its subsidiaries, both individually and collectively, and could cause those results to differ materially from those expressed in forward-looking statements. Therefore, undue reliance should not be placed upon any forward-looking statements. Those factors include but are not limited to: market, economic, operational, liquidity, and credit risk; changes in market interest rates; inability to achieve anticipated synergies and successfully integrate recent mergers and acquisitions; inability to successfully execute business plans, including strategies related to investments in financial technology companies; competition; changes in economic, business, and political conditions; changes in demand for loan products and deposit flow; operational risks and risk management failures; and government regulation and supervision. Additional factors that may cause actual results to differ materially from those described in the forward-looking
statements can be found in the Company’ Annual Report on Form 10-K for the year ended December 31, 2023, as well as its other filings with the SEC, which are available on the SEC’s website at www.sec.gov. Except as required by law, the Company disclaims any obligation to update, revise, or correct any forward-looking statements.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
10.1 Agreement for Purchase and Sale of Property, dated as of December 30, 2024 by and between the Bank and
Buyer.
10.2 Master Lease Agreement, dated as of December 30, 2024 by and between the Bank and Landlord.
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
| MVB Financial Corp. | ||||||||
| By: | /s/ Donald T. Robinson | |||||||
| Donald T. Robinson President and Chief Financial Officer | ||||||||
Date: January 2, 2025
Execution Version AGREEMENT FOR PURCHASE AND SALE OF PROPERTY THIS AGREEMENT is made and entered into as of the Effective Date (as hereinafter defined), by and between MVB BANK, INC., a West Virginia banking corporation (“Seller” and “Leaseback Tenant”), and MOUNTAINSEED REAL ESTATE SERVICES, LLC, a Georgia limited liability company (“Buyer”). STATEMENT OF BACKGROUND A. Seller is the owner of each Property (as hereinafter defined). B. Buyer wishes to purchase, and Seller wishes to sell, the Property, upon the terms and conditions hereinafter set forth. STATEMENT OF AGREEMENT NOW, THEREFORE, in consideration of Ten Dollars ($10.00), in hand paid by Buyer to Seller, the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Seller, Seller and Buyer hereby agree as follows: 1. Definitions and Exhibits. 1.1 Definitions. For purposes of this Agreement, each of the following terms, when used herein with an initial capital letter, shall have the meaning ascribed to it as follows: “Agreement” shall mean this Agreement for Purchase and Sale of Property. “Business Day” shall mean a day other than a Saturday, Sunday or legal or bank holiday in either the State where any of the Land is located or of the Federal Government. “Closing” shall mean the closing and consummation of the purchase and sale of the Property pursuant to this Agreement. “Closing Date” shall mean the date on which the Closing occurs as provided in Section 9.1. “Deed” shall have that meaning set forth in Section 9.2.1.a. “Deposit” shall have that meaning set forth in Section 3.1. “Effective Date” shall mean December 30, 2024.
2 “Environmental Matter” shall mean any matter or circumstance related to (i) the disposal or release of solid, liquid or gaseous waste into the environment, (ii) the treatment, storage disposal or other handling of any Hazardous Substance, (iii) the placement of structures or materials into waters of the United States, (iv) above- ground or underground storage tanks used for the storage of petroleum, petroleum products, or Hazardous Substances, (v) the presence of any Hazardous Substance, including, but not limited to, asbestos, in any building, structure or workplace, which matter or circumstance exists at the Property on or before the Closing Date. “Environmental Reports” shall mean existing environmental site assessments, remediation reports, tank removal reports and other reports (including, but not limited to, any soils and groundwater assessments and reports) for each Property, which are readily available in Seller’s possession and control and are less than three (3) years old or the most recent such report in Seller’s files. “Escrow Agent” shall mean First American Title Insurance Company, 666 Third Avenue, 5th Floor, New York, New York 10017, Attn: Zivile Giuliani, Telephone: (212) 850-0634, Email: zgiuliani@firstam.com, pursuant to the terms and conditions of the Escrow Agreement and Section 3. “Fixtures” shall mean, collectively, all machinery, equipment and systems necessary for the operation of the Improvements that are “fixtures” pursuant to applicable law, including, but not limited to electrical, plumbing, heating, ventilation and air-conditioning equipment, and fire sprinklers and fire suppression equipment (but specifically excluding any such items that are not “fixtures” pursuant to applicable law, and any trade fixtures, including, but not limited to, the “Tenant Property” listed on EXHIBIT G attached hereto and made a part hereof). “General Assignment” shall mean the Assignment of Warranties and Other Intangible Property in the form attached hereto as EXHIBIT E. “Governmental Requirements” shall mean any and all laws, rules and regulations of federal, state and local governmental authorities having jurisdiction over the applicable Property. “Hazardous Substances” shall mean any and all hazardous or toxic substances or wastes or constituents as those terms are defined by any applicable Hazardous Substance Law and petroleum, petroleum products, asbestos or any asbestos- containing materials, the group of organic compounds known as polychlorinated biphenyls (PCBs), flammables, explosives, radioactive materials, and chemicals known to cause cancer. “Hazardous Substance Law” shall mean any and all federal, state or local laws, rules, regulations, ordinances, agency or judicial orders and decrees, and agency agreements now and hereafter enacted or promulgated or otherwise in effect, relating to the protection of the environment, including, without limitation, the
3 Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), the Hazardous Materials Transportation Act, 49 U.S.C. §6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C. §§1251 et seq., the Clean Air Act, 42 U.S.C. §§7401 et seq., the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq., and the Safe Drinking Water Act, 42 U.S.C. §§300f et seq., and all amendments, regulations, orders and decrees promulgated thereunder or pursuant thereto. “Improvements” shall collectively mean any buildings, structures and improvements located on the applicable Land. “Independent Consideration” shall have the meaning set forth in Section 3.3. “Inspection Date” shall mean the Inspection Date set forth in Section 7.3. “Intangible Personal Property” shall collectively mean, to the extent assignable, all intangible personal property, if any, owned by Seller and related exclusively to the applicable Real Property, including, without limitation: (i) any trade names associated with the Real Property other than MVB Bank or the names of any of Seller’s affiliated businesses; (ii) any plans and specifications and other architectural and engineering drawings for the Improvements; (iii) any Warranties; (iv) any Service Contracts and other contract rights related to the Property (but only to the extent Seller’s obligations thereunder are expressly assumed by Buyer pursuant to the General Assignment); and (v) any governmental permits, approvals and licenses (including any pending applications) necessary for the ownership of the Property, but excluding any licenses related to the conduct of Tenant’s business as a financial institution. “Land” shall mean, individually and collectively as the context may require, that certain real property or each of the real properties described in EXHIBIT A attached hereto and made a part hereof. “Leaseback Lease” shall have the meaning given such term in Section 5.6. “Mandatory Cure Items” shall mean any mortgage, deed of trust, lien, judgment or other monetary encumbrance of any nature encumbering the title to any of the Real Property and held by a person claiming through or under Seller. “Material Casualty” shall mean a casualty which (i) results in a cost of repair in excess of ten percent (10%) of the Purchase Price allocated to such Property as set forth on EXHIBIT A attached hereto in the estimate of a general contractor or architect reasonably selected by Seller and approved by Buyer; (ii) will take more than 6 months to repair (as reasonably estimated by a general contractor reasonably selected by Seller and approved by Buyer); (iii) results in Seller’s insurance
4 company failing to notify Buyer in writing that it acknowledges or will acknowledge prior to Closing Buyer as Seller’s assignee of the insurance proceeds; or (iv) is an uninsured or underinsured casualty. “Material Condemnation” shall mean a condemnation or threatened condemnation pursuant to which (i) any portion of the Property with a value equal to or greater than two percent (2%) of the Purchase Price allocated to such Property as set forth on EXHIBIT A attached hereto is taken or threatened to be taken; (ii) results or would result in the loss parking spaces serving the Real Property which would cause the Real Property to not have parking spaces sufficient to comply with applicable zoning (without taking into account any grandfathering in of the Real Property as a result of such condemnation); (iii) causes or would cause a material reduction in size of the Real Property or materially interferes with the use and operation of the Real Property; (iv) results or would result in the Property being in violation of any applicable Governmental Requirements; or (v) results or would result in access to the Property being materially impaired, as reasonably determined by Buyer. “OFAC” shall mean the Office of Foreign Assets Control, Department of the Treasury. “Permitted Title Exceptions” shall mean those matters affecting title to the applicable Land identified on EXHIBIT B attached hereto and by this reference made a part hereof. “Person” shall mean any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, institution, entity, party or government (whether national, Federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof). “Property” shall mean, individually and collectively as the context may require: (i) each of the Real Property; and (ii) all of Seller’s right, title and interest in and to the Intangible Personal Property with respect to each Real Property. “Proration Date” shall mean the effective date of the prorations provided in Section 4.2 hereof, which is 11:59 p.m. on the eve of the Closing Date. “Purchase Price” shall mean the purchase price for the Property described in Section 4 1. “Real Property” shall collectively mean, individually and collectively as the context may requires, each of the Land, together with:
5 (i) the Improvements on such Land; (ii) the Fixtures at such Land; (iii) all rights, benefits, privileges, easements, tenements, hereditaments, rights- of-way and other appurtenances thereon or in any way appertaining thereto, including all mineral rights, development rights, air and water rights; and (iv) all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining such Land. “Seller’s knowledge” or “to the knowledge of Seller” or words or phrases of similar import shall mean the current actual knowledge of the following individuals: Donald T. Robinson and Larry F. Mazza (the “Designated Individuals”). The Designated Individuals are the persons to whom information pertaining to the Seller’s representations and warranties set forth in this Agreement would reasonably be expected to be reported and who would generally be expected to have knowledge of the matters that are the subject of Seller’s representations and warranties herein. “Service Contracts” shall collectively mean contracts pertaining to the operation of the Property, including all management, leasing, service and maintenance agreements and equipment leases. “Survey” shall have that meaning set forth in Section 6. “Taxes” shall have that meaning set forth in Section 4.2. “Tenant Vacancy Condition” means that, subject only to the Leaseback Tenant’s continued occupancy under the Leaseback Lease, all existing leases and occupancy agreements affecting the Property have terminated by their terms, and all tenants, subtenants or occupants of the Property, whether permitted pursuant to this Agreement or resulting from a breach hereof, have (i) fully vacated the Property and removed all personal property and effects therefrom, and (ii) otherwise surrendered their respective premises in accordance with the terms and conditions set forth in any applicable leases or occupancy agreements. “Title Insurer” shall mean Escrow Agent. “Title Policy” shall have the meaning set forth in Section 7.4(b). “Warranties” shall have that meaning set forth in Section 8.1.r. 1.2 Exhibits; Schedules. All exhibits, schedules and other attachments hereto form an integral part of this Agreement, all of which are incorporated into this Agreement
6 as fully as if the contents thereof were set out in full herein at each point of reference thereto. EXHIBIT A Schedule of the Property; Property Legal Descriptions EXHIBIT B Permitted Title Exceptions EXHIBIT C List of Due Diligence Materials EXHIBIT D Terms of Escrow EXHIBIT E Assignment of Warranties and Other Intangible Property EXHIBIT F Affidavit of Non-Foreign Status EXHIBIT G Tenant Property EXHIBIT H KYC Application 2. Purchase and Sale. Subject to the provisions hereof, Seller agrees to sell, assign and convey to Buyer, and Buyer agrees to purchase the applicable Property from Seller. 3. Deposit. 3.1 Deposit. Within five (5) Business Days after the Effective Date, Buyer shall deposit with Escrow Agent the sum of $50,000.00 (the “Deposit”) as earnest money hereunder, which Deposit shall be allocated per Property as set forth on EXHIBIT A attached hereto. The Deposit, together with any interest or other income earned thereon (which shall be deemed part of the Deposit), shall be held and disbursed pursuant to this Agreement, including the terms of escrow on EXHIBIT D. 3.2 Disbursement. Whenever the Deposit or any applicable portion of the Deposit is by the terms hereof to be disbursed by Escrow Agent, Seller and Buyer agree promptly to execute and deliver such notices as necessary or, in the commercially reasonable opinion of Escrow Agent, appropriate to authorize Escrow Agent to make such disbursement. 3.3 Independent Consideration. One Hundred Dollars ($100.00) of the Deposit (“Independent Consideration”) shall be released by Escrow Agent to Seller within three (3) Business Days after receipt of the Deposit by Escrow Agent, which amount Seller and Buyer have bargained for and agreed to as independent and sufficient consideration for Seller’s execution and delivery of this Agreement. The Independent Consideration is non-refundable to Buyer under any and all circumstances, but applicable to the Purchase Price, and Seller shall retain the Independent Consideration upon any termination of this Agreement notwithstanding any other provision of this Agreement to the contrary. 4. Purchase Price and Prorations. 4.1 Purchase Price.
7 a. Purchase Price. The purchase price for the Property shall be $17,569,920.00 (the “Purchase Price”), which Purchase Price shall be allocated for each Property as set forth on EXHIBIT A attached hereto. b. Payment Mechanics. The Purchase Price, as adjusted by the prorations provided in Section 4.2 and as reduced by the Deposit (which, unless otherwise disbursed hereunder, shall be disbursed by Escrow Agent at the Closing to Seller as a portion of the Purchase Price) shall be paid by Buyer to Seller at the Closing in United States Dollars, by Federal Reserve System wire transfer or other immediately available funds acceptable to Seller. 4.2 Prorations. Items of expense relating to the Property that are typically prorated in real estate purchase and sale transactions (e.g., real property taxes and assessments, and utility charges) will be, as of Closing, paid directly by the Leaseback Tenant under the Leaseback Lease to the applicable taxing authority, service provider, utility provider or other third party (and not as a reimbursement to Buyer as landlord for expenses incurred), so such items of expense will not be prorated as of the Closing, as the terms of the Leaseback Lease will address the Leaseback Tenant’s payment of such expense items. 5. Title; Leaseback Lease. 5.1 Fee Simple Conveyance at Closing. Seller shall convey good, marketable and insurable fee simple title to the Land to Buyer free and clear of all liens and encumbrances, subject only to the Permitted Title Exceptions and any other matters of title to which Buyer shall expressly consent in writing pursuant hereto. 5.2 Review of Title Commitment. Buyer shall have until the Inspection Date by which to examine title to each of the Property, to obtain a title insurance commitment with respect to the applicable Property (the “Title Commitment”) from the Title Insurer, and to give written notice to Seller of any objections which Buyer may have with respect to each Property. a. Failure of Buyer to Object. If Buyer fails to give any notice to Seller by such date, Buyer shall be deemed to have waived such right to object to any title exceptions or defects set forth in the Title Commitment as of the expiration of the Inspection Date. b. Buyer Provides Objections. If Seller receives timely notice of Buyer’s objection to any title exceptions or defects, Seller will have no obligation to take any action to cure such title exceptions or defects (other the Mandatory Cure Items, which Seller must cure and satisfy in accordance with Section 5.4); provided that Seller will have the right and option to elect, within seven (7) days of Seller’s receipt of such written notice from Buyer, to cure or satisfy by the Closing, any such objection by Buyer (and, if Seller fails to provide a response to Buyer’s objections within such seven
8 (7) day period, Seller shall be deemed to have elected not to cure such exceptions or defects, other than Mandatory Cure Items). i. Seller Fails to Cure Objection. If Seller: (i) elects not to cure such objections; or (ii) elects to cure such objections (except that Seller must cure and satisfy the Mandatory Cure Items as required by Section 5.4) and such objection is not so timely and reasonably cured or satisfied or undertaken to be reasonably cured or satisfied by Seller, then Buyer shall, within seven (7) days thereafter, elect, by written notice given to Seller on or before such seventh (7th) day, either: 1. Terminate: to terminate this Agreement with respect to the applicable Property, in which case the applicable portion of the Deposit allocated to such Property, less the Independent Consideration, shall be returned to Buyer by Escrow Agent, and the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination, or 2. Waive: to waive its objections hereunder and proceed with the transaction pursuant to the remaining terms and conditions of this Agreement. 3. Failure to Elect: If Buyer fails to give Seller notice of its election by such time, it shall be deemed to have elected to waive its objections as provided in subparagraph (2) above. ii. Seller Cures Objection. If Seller does so reasonably cure or satisfy, or undertake to reasonably cure or satisfy, such objection, then this Agreement shall continue in full force and effect. iii. Waiver. Buyer shall have the right at any time prior to the termination of this Agreement to waive any objections that it may have made and, thereby, to preserve this Agreement in full force and effect. 5.3 Changes In Title. Buyer shall have the right to object to any change in title occurring after the effective date of the applicable Title Commitment and prior to the Closing, and if Seller elects to cure such objection and Seller cannot cure or satisfy any such objection (or any objection which Seller has previously undertaken to cure or satisfy) by the Closing or if Seller does not agree to cure such objection, Buyer may exercise the option set forth in clause 5.2(b)(i)(1) or 5.2(b)(i)(2) above. The foregoing election is intended to be in addition to Buyer’s remedies for Seller’s default hereunder, if such change in title constitutes a Seller default hereunder. 5.4 Mandatory Cure Items. Seller shall pay and cause to be released all Mandatory Cure Items at or before the Closing.
9 5.5 Time Periods. The Closing Date shall be automatically extended to allow all time periods in this Section 5 to run fully, provided, however in no event shall the Closing Date extend past December 31, 2024. 5.6 Leaseback Lease. Buyer will, concurrently with Closing, lease the Property back to Leaseback Tenant by execution and delivery of the lease in a form to be agreed upon by Seller, Buyer and Leaseback Tenant prior to the expiration of the Inspection Date, which Leaseback Lease shall provide for initial annual fixed rent for the Property (in the aggregate) of $1,537,368.00, and which obligations of Leaseback Tenant under the Leaseback Lease shall be guaranteed by MVB Financial Corp., a West Virginia corporation (the “Guarantor”) pursuant to form of guaranty to be attached to the Leaseback Lease (the “Lease Guaranty”). In the event that, despite using good faith efforts to negotiate the form of the Leaseback Lease and Lease Guaranty, the parties are unable to agree upon a form of Leaseback Lease and Lease Guaranty prior to the expiration of the Inspection Date, Buyer or Seller may terminate this Agreement by providing written notice to Seller on or prior to the expiration of the Inspection Date in accordance with Section 7.3 of this Agreement. 6. Survey. 6.1 Survey. Buyer may obtain a survey of each Property (the “Survey”). 6.2 Buyer Objections. Any matters shown on the applicable Survey and objected to by Buyer by the Inspection Date shall be additional title objections, as to which the obligations and rights of Buyer and Seller shall be the same as provided in Section 5 above. 7. Buyer’s Inspection. 7.1 Physical Inspection. a. Inspection Right. Buyer and its agents, employees, representatives and independent contractors may enter upon the Property for the purpose of making such surveys, soil tests, borings, percolation tests, inspections, examinations, and studies (collectively, “Inspections”) as are reasonably necessary to evaluate and study the Property as contemplated herein. Seller agrees that Buyer shall have until the Closing Date in which to conduct all such Inspections, but that Buyer’s right to terminate this Agreement based thereon shall be limited as provided in Section 7.3 and Section 7.4 below. b. Inspection Indemnity. Buyer shall: (a) be responsible for remedying any damage caused by Buyer in order to restore the Property to substantially the same condition as existed prior to such Inspections and (b) indemnify, defend and hold Seller harmless from any and all claims, liabilities, costs or expenses (“Claims”) arising out of such Inspections of and entries onto the Property,
10 including personal injury and property damage to the extent caused by Buyer, its agents, employees and consultants. c. Carveout to Inspection Indemnity. Notwithstanding the foregoing, in no event shall Buyer be liable to or be obligated to indemnify Seller under Section 7.1(b) for (i) the mere discovery of pre-existing conditions at the Property or (ii) the negligence or willful misconduct of Seller or any agents, employees, consultants or contractors thereof. 7.2 Document Inspection. Seller represents and warrants that it has delivered to Buyer true, correct and complete copies of each of the documents or materials listed on EXHIBIT C attached hereto to the extent in Seller’s possession or reasonable control. 7.3 Inspection Period. a. Inspection Date; Termination Right. Notwithstanding Buyer’s right of inspection contained in Section 7.1 above, Buyer shall have until the date that is thirty (30) days after the Effective Date (the “Inspection Date”) to terminate this Agreement with respect to any or all of the Property, by written notice to Seller, in its sole and absolute discretion. Buyer shall have the one time right to extend the Inspection Date by a period of up to ten (10) days by providing written notice to Seller prior to the expiration of the initial Inspection Date. b. Seller Cooperation. Seller agrees to cooperate reasonably with Buyer’s investigations. c. Exercise of Termination Right. If, on or before the Inspection Date, Buyer gives Seller written notice that Buyer has elected to terminate this Agreement pursuant to this Section 7.3, then this Agreement shall terminate solely with respect to the Property identified in Buyer’s termination notice with such termination to be effective as of the date such notice is given to Seller, in which event the applicable portion of the Deposit allocated to such terminated Property, less the Independent Consideration, shall be returned to Buyer, and the parties shall have no further rights or obligations hereunder with respect to such terminated Property, except for those which expressly survive any such termination. d. Waiver of Termination Right. If Buyer fails to give Seller written notice, not later than the Inspection Date, that Buyer has elected to terminate this Agreement with respect to any or all Property pursuant to this Section 7.3, then this Agreement shall remain in full force with respect to all Property and effect in accordance with its terms. 7.4 Conditions Precedent. In addition to other conditions in this Agreement, Buyer’s obligation to purchase each Property shall be contingent upon the following conditions precedent:
11 a. Adverse Conditions. There shall be no material adverse change in the condition of or affecting the Property not caused by Buyer between the time of Buyer’s inspection of the Property prior to the Inspection Date and the Closing Date, including, but not limited to: (i) environmental contamination; and (ii) loss of access; b. Title Insurance. The willingness of Title Insurer to issue, on the Closing Date, upon the sole condition of the payment of an amount no greater than its regularly scheduled premium, its extended coverage ALTA form owner’s policy of title insurance, with such available endorsements as Buyer may elect to obtain, insuring in the amount of the Purchase Price applicable to such Property that title to the Property is vested of record in Buyer on the Closing Date, subject only to the Permitted Title Exceptions (the “Title Policy”); and c. Representations and Warranties. Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date. d. KYC Requirement. Seller shall have truthfully and accurately completed and delivered to Buyer the “know your customer” application form attached hereto as EXHIBIT H (the “KYC Application”) no less than seven (7) days prior to the Closing, and Seller satisfactorily completes Buyer’s customary Know Your Customer background check, with Buyer acting reasonably. e. Compliance with Agreement. Seller must have materially performed all obligations and complied with all covenants required in this Agreement to be performed or complied with by it prior to or at Closing. f. Tenant Vacancy Condition. The Tenant Vacancy Condition shall be satisfied. 7.5 Failure of Conditions Precedent. If any of the conditions precedent set forth in Section 7.4 is not satisfied or waived in writing by Buyer, Buyer may, but shall not be obligated to, elect, at its option, by notice to Seller, either to: (a) terminate this Agreement with respect to any or all Property, in which event the applicable portion of the Deposit allocated to such terminated Property shall be returned to Buyer, and the parties hereto shall have no further rights or obligations hereunder, except for those which expressly survive such termination; or (b) close without regard to the failure of such condition. The foregoing election is not intended to be in derogation of, but shall be in addition to, Buyer’s remedies for Seller’s default hereunder, and does not negate, modify or amend the representations, warranties or post-closing covenants of Seller contained herein, which representations, warranties and post- closing covenants shall survive the Closing as herein provided.
12 8. Representations and Warranties. 8.1 Representations and Warranties. As of the date hereof and as of the Closing, Seller hereby represents and warrants to Buyer as follows: a. No Litigation. To Seller’s knowledge, there are not any pending or threatened disputes, violations, actions or proceedings by any person, entity or governmental agency against Seller with respect to the Property or against the Property (or any portion thereof). b. Organization and Authority. Seller: (i) is a banking corporation duly formed, validly existing and in good standing under the laws of West Virginia, and qualified to do business in each State in which the Property is located; (ii) has obtained all requisite authorizations and consents to enter into this Agreement with Buyer and to consummate the transactions contemplated hereby; and (iii) certifies that the individuals executing this Agreement and the documents executed in furtherance of this Agreement have the full right and authority to bind Seller under the terms and conditions stated herein. c. Title. Seller has good, insurable and marketable fee simple title to the Property, free and clear of all liens and encumbrances, other than the Permitted Title Exceptions and none of the Property will be subject to any assignment to, or any superior possessory rights in, any third party. d. Undisclosed Agreements and Liabilities. Other than as expressly set forth in this Agreement or otherwise disclosed in writing to Buyer pursuant to this Agreement, to Seller’s knowledge, there are no undisclosed liabilities or agreements affecting the Property or Seller, in its capacity as owner of the Property. e. Taxes and Assessments. i. No Special Assessments: To Seller’s knowledge the Property is not subject to or affected by any special assessment for public improvements or otherwise, whether or not presently a lien upon the Property. ii. No Commitments: Seller has made no commitment to any person or entity relating to the Property which would impose an obligation upon Seller or its successors to make any contributions or dedications of money or land, or to construct, install or maintain any improvements as part of the Property or upon separate lands. iii. No Special Fees or Contributions: To Seller’s knowledge, no governmental authority has imposed any requirement that Seller pay, directly or indirectly, or incur any expenses or obligations in connection with the development of the
13 Property or any portion thereof, other than any nondiscriminatory real property taxes assessed against the Property. iv. Separately Assessed: Each Property is separately assessed for real property tax assessment purposes. v. No Reassessment: Seller has received no notice of any contemplated or actual reassessment of the Property (other than typical annual reassessments pursuant to local law) or any portion thereof for general real estate tax purposes. vi. Taxes and Assessments Paid: All due and payable taxes, assessments, water charges and sewer charges affecting the Property have been paid. vii. Tax Appeals. There is no ongoing appeal with respect to taxes or special assessments on the Real Property for any year, and any consultants engaged with respect to taxes or special assessments on the Property have been paid in full. f. No Rights to Purchase. No Person, other than Buyer, has any right, agreement, commitment, option, right of first refusal or any other agreement, whether oral or written, with respect to the purchase, assignment or transfer of all or any portion of the Property. g. Environmental Matters. i. No Hazardous Substances: Hazardous Substances have not been used, generated, transported, treated, stored, released, discharged or disposed of in, onto, under or from the Property by Seller or, to Seller’s knowledge, by any predecessor-in-title or agent or contractor of Seller or by any other Person at any time other than di minimis amounts (i.e. cleaning products) or in accordance with Hazardous Substance Law. ii. No Violations: To Seller’s knowledge, the Property is not in violation of any Hazardous Substance Laws or any other Governmental Requirements. iii. No Claims or Actions: Seller has received no written nor to Seller’s knowledge oral notice or other communication of pending or threatened claims or investigations against Seller, the Property or any occupant of the Property related to alleged or actual violations of Hazardous Substance Laws. iv. No Notifications: No notification of release of a Hazardous Substance has been filed as to the Property, nor, to Seller’s knowledge, is the Property or any property in the immediate vicinity of the Property listed or formally proposed for listing on the National Priority List promulgated pursuant to CERCLA or on any other Federal or state list of Hazardous Substance sites requiring investigation or cleanup.
14 v. No Storage Tanks: To Seller’s knowledge, there are no above-ground or underground tanks or any other underground hazardous substance storage facilities located on the Property. h. Subdivision. Each Property constitutes a separately subdivided, legally distinct parcel of land and Seller has complied with all applicable laws affecting the Property which relate to such subdivision. i. No Condemnation. There is no pending or, to Seller’s knowledge, threatened condemnation or similar proceeding affecting all or any portion of the Property; To Seller’s knowledge, no such proceeding is contemplated. j. Covenants, Conditions, Restrictions or Easements. There is no default or breach by Seller nor, to Seller’s knowledge, any other party thereto, under any covenants, rights of way or easements which may affect the Property which are to be performed or complied with by the owner of the Property, and no condition or circumstance exists which, with the giving of notice or the passage of time, or both, would constitute a default or breach by Seller nor, to Seller’s knowledge, any other party thereto, under any such covenants, rights-of-way or easements. k. No Bankruptcy. Neither Seller, nor Guarantor, is party to any proceedings in bankruptcy or similar proceedings under the Federal bankruptcy laws or under any state laws relating to the protection of debtors, or subject to any general assignment for the benefit of the creditors, and, to Seller’s knowledge, no such action has been threatened. l. Leases. There are no tenants of the Property and no person or entity now has, or at the time of Closing will have, any possessory interest in the Property, under a lease or otherwise, except for (i) Seller whose total interest in the Property will be transferred to Buyer at Closing; and (ii) Leaseback Tenant’s continued occupancy under the Leaseback Lease. m. Non-Foreign Status; Withholding. Seller is not a “foreign person” as that term is defined in the Internal Revenue Code of 1986, as amended and the Regulations promulgated pursuant thereto. Seller’s sale of the Property is not subject to any Federal, state or local withholding obligation of Buyer under the tax laws applicable to Seller or the Property. n. Intentionally omitted. o. Service Contracts. No Service Contracts will be binding upon Buyer or the Property at Closing and Seller (or Leaseback Tenant) will retain all obligations and liabilities under any Service Contracts as tenant under the Leaseback Lease.
15 p. OFAC. Neither Seller nor, to Seller’s actual knowledge, any individual having a beneficial interest in Seller is a Person described by Section 1 of the Executive Order (No. 13224) Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49079 (September 25, 2001), and does not engage in any dealings or transactions, and is not otherwise associated with any such Persons. q. Banking Regulations. Seller represents and warrants that Seller has independently verified that the transaction contemplated by this Agreement complies with all regulations applicable to the Seller’s business, including without limitation any regulations applicable to the sale of the Property by Seller and subsequent leaseback of the Property by Leaseback Tenant (collectively, the “Sale-Leaseback Regulations”). Seller has obtained all required regulatory approvals as may be necessary or appropriate in connection with the transaction contemplated by this Agreement, and Seller is entering the transaction contemplated by this Agreement solely relying on, and after full review of, their own due diligence and not on the basis of any statement made by Buyer or Buyer Indemnitees (defined below). Neither Buyer nor any Buyer Indemnitees has made any representation or warranty to Seller as it relates to the Sale-Leaseback Regulations or the compliance of this transaction with any of the Sale-Leaseback Regulations. To the fullest extent permitted by applicable law, Seller shall indemnify and hold harmless Buyer and the Buyer Indemnitees from and against any and all claims, losses, damages, expenses and other liabilities arising with respect to the Sale-Leaseback Regulations (collectively referred to as “Regulatory Claims” and individually as a “Regulatory Claim”), including, as incurred, attorneys’ fees, that any of the Buyer Indemnitees may incur that arise out of or in connection with the Seller’s breach of any representation, warranty or other obligation in this Section 8.1.q. of this Agreement. The Buyer Indemnitees shall promptly notify Seller of any Regulatory Claim filed against Buyer or any Buyer Indemnitees, and Seller shall defend the Buyer Indemnitees, at the request of any one or more of the Buyer Indemnitees, with counsel reasonably satisfactory to the Buyer Indemnitees making the request. The indemnity in this Section 8.1.q shall survive Closing and any termination of this Agreement. r. Warranties. To Seller’s knowledge, true and correct copies of any existing warranties or guaranties issued in connection with the development, construction, operation, maintenance or repair of the Property, and any amendments or modifications thereto which remain in effect as of the date hereof (collectively, “Warranties”) have been delivered to Buyer. 8.2 Survival. The foregoing representations are true, correct and complete, and the foregoing warranties are binding on Seller, as of the date hereof, and shall be true and correct, as the case may be, and deemed to have been reaffirmed and restated by Seller as of the date and time of the Closing, shall survive the Closing for the period set forth in Section 32 and shall not be deemed merged into any instrument of conveyance delivered at the Closing, and shall inure to the benefit of and be enforceable by Buyer, its successors and assigns.
16 9. Closing. 9.1 Time and Place. Provided that all of the conditions set forth in this Agreement are fully satisfied or performed, the Closing shall be conducted by escrow through Escrow Agent, commencing at 10:00 a.m. Eastern Time, on the date that is mutually acceptable to Buyer and Seller but in no event more than fifteen (15) days after the expiration of the Inspection Date and in no event after December 31, 2024 (the “Closing Date”), unless the Closing Date is postponed pursuant to the express terms of this Agreement or as otherwise agreed by Seller and Buyer in writing. Seller and Buyer may agree in writing to conduct the Closing on an earlier date. 9.2 Closing Deliverables. 9.2.1 Deliveries by Seller. As a condition precedent to Buyer’s delivery to Seller of the Purchase Price, Seller shall deliver the following documents to Escrow Agent on the Business Day preceding the Closing Date (all of which shall be duly executed by Seller and witnessed and notarized where required, and which Buyer agrees to execute where required): a. Deed(s): a special warranty deed (or the local equivalent thereof) with respect to each Property, containing a limited warranty of title in form reasonably acceptable to Buyer, conveying to Buyer all of Seller’s right, title and interest in and to each Property, subject only to the Permitted Title Exceptions and such other matters as are permitted by Section 5 hereof; b. General Assignment. The General Assignment; c. Non-Foreign Certificate: A Certificate and Affidavit of Non-Foreign Status, in the form attached as EXHIBIT F hereto and by this reference made a part hereof; d. Leaseback Lease and Lease Guaranty. The Leaseback Lease signed by Leaseback Tenant and the Lease Guaranty signed by Guarantor. e. Affidavit of Title: An affidavit of title in the form required by the Title Insurer in order to issue its extended coverage owner’s policy of title insurance without exception for mechanic’s, materialmen’s or other statutory liens, for unrecorded easements or for other rights of parties in possession, and subject only to the Permitted Exceptions; f. Authority: Such evidence as Title Insurer shall reasonably require as to the authority of the parties acting on behalf of Seller to enter into this Agreement and to discharge the obligations of Seller pursuant hereto; g. Reaffirmation of Representations and Warranties: A certificate of Seller, dated as of the Closing Date, reaffirming that all representations and warranties of Seller
17 under this Agreement are true, correct and complete as of the Closing Date and that there has occurred no default or breach, nor any event which, with the giving of notice or the passage of time, or both, would constitute a default or breach by Seller under this Agreement; h. Closing Statement: A Closing settlement statement; i. [Intentionally omitted]; and j. Other Transfer Tax Documents: Such other property transfer tax returns, affidavits, declarations or forms, if any, sufficient to comply with Governmental Requirements of the jurisdiction in which the Property is located; and k. Further Documentation: Such further instructions, documents and information as Buyer or Title Insurer may reasonably request as necessary to consummate the purchase and sale contemplated by this Agreement, including any payoff letter or release from Seller’s existing lender required for the Title Insurer to issue the Title Policy without exception for monetary liens as required by Section 5 and Section 7.4(b) above. 9.2.2 Deliveries by Buyer. Not later than the Closing Date, Buyer shall deposit with the Escrow Agent, in good funds immediately available, the Purchase Price less the Deposit, and subject to any prorations and credits required by this Agreement. 9.3 Costs. At the Closing: a. Transfer Taxes: Seller shall pay any and all transfer taxes, sales taxes, and realty transfer fees incident to the conveyance of title to the Property to Buyer, if applicable, as well as any taxes in connection with the Lease; b. Recording Costs: Seller shall pay the cost of recording the Deed; c. Title Insurance Costs: Seller shall pay the cost of the title/search exam fees to prepare the Title Commitment, the basic and extended owner’s coverage under the Title Policy issued by the Title Insurer, and the costs of any endorsements to such Title Policy; d. Financing Costs: Buyer shall pay any mortgage recording or intangibles tax and all other taxes, costs, fees or expenses relating to Buyer’s financing of the Property; e. Diligence Reports: Seller shall pay the costs of the Survey, any zoning reports, any property condition reports, any Phase I environmental assessments and any Phase II environmental assessments (if required), any seismic reports or studies, and any appraisal reports obtained by Buyer with respect to each Property for which Closing occurs (it being agreed that Buyer may order any or all of such reports directly from
18 the applicable vendors selected by Buyer). Buyer shall pay the costs of all such items and reports for any of the Property for which Closing does not occur hereunder; f. Escrow/Closing Fees: Any escrow/closing fees charged by the Title Insurer shall be split evenly by Buyer and Seller; and g. Other Costs: Except as otherwise set forth in this Agreement, Seller and Buyer shall pay their own respective costs incurred with respect to the consummation of the purchase and sale of the Property as contemplated herein, including, without limitation, attorneys’ fees. 10. Default and Remedies. 10.1 Seller’s Default. IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO SELLER’S DEFAULT UNDER THIS AGREEMENT, THEN BUYER MAY ELECT, AS BUYER’S SOLE AND EXCLUSIVE REMEDIES, EITHER TO: (a) Terminate: TERMINATE THIS AGREEMENT, IN WHICH CASE ESCROW AGENT SHALL RETURN THE DEPOSIT TO BUYER, RECOVER FROM SELLER AN AMOUNT OF MONEY EQUAL TO THE ACTUAL OUT-OF-POCKET EXPENSES ACTUALLY INCURRED BY BUYER IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE “PURSUIT COSTS”), AND, AFTER RECEIPT BY BUYER OF THE DEPOSIT AND REIMBURSEMENT FROM SELLER FOR THE PURSUIT COSTS, NEITHER PARTY HERETO SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION; OR (b) [Intentionally omitted]; OR (c) Intentional Acts of Seller. IF SELLER SELLS OR OTHERWISE TRANSFERS TITLE TO ANY OF THE PROPERTY TO A BONA FIDE PURCHASER OR OTHER TRANSFEREE WITHOUT KNOWLEDGE OF THIS AGREEMENT WHILE THIS AGREEMENT REMAINS IN FULL FORCE AND EFFECT, ANY SUCH ACTION WILL CONSTITUTE A WILLFUL AND INTENTIONAL BREACH OF THIS AGREEMENT AND BUYER WILL, ACCORDINGLY, ONLY IN THAT CIRCUMSTANCE BE ENTITLED TO PURSUE ALL REMEDIES AVAILABLE TO BUYER AT LAW OR IN EQUITY. (d) Pursuit Costs. IF BUYER BECOMES ENTITLED TO REIMBURSEMENT OF PURSUIT COSTS, BUYER WILL DELIVER WRITTEN NOTICE TO SELLER, WHICH NOTICE SHALL SPECIFY THE AMOUNT OF
19 PURSUIT COSTS DUE AND ENCLOSE REASONABLE SUPPORTING DOCUMENTATION FOR EACH COMPONENT OF THE AMOUNT CLAIMED TO BE DUE. PAYMENT WILL BE DUE FROM SELLER WITHIN THIRTY (30) DAYS AFTER RECEIPT OF ANY SUCH WRITTEN NOTICE FROM BUYER. (e) No Other Remedies. BUYER SHALL NOT HAVE ANY OTHER RIGHTS OR REMEDIES HEREUNDER AS A RESULT OF ANY DEFAULT BY SELLER PRIOR TO CLOSING, AND BUYER HEREBY WAIVES ANY OTHER SUCH REMEDY AS A RESULT OF A DEFAULT HEREUNDER BY SELLER. 10.2 Buyer Default. IF THE SALE IS NOT CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. 10.3 Determination of Seller Damages. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT PRIOR TO CLOSING, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. 10.4 Agreement of Parties. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. 10.5 Confirmation. EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER’S OBLIGATIONS UNDER SECTION 7.1.b. AND SECTION 15 OF THIS AGREEMENT. 10.6 Seller’s Misrepresentation or Breach of Warranty. In the event that Buyer first discovers after the Closing that any representation, warranty or covenant contained herein was untrue or breached, as the case may be, as of the Closing Date, or if Buyer chooses to enforce any surviving indemnification set forth herein, Buyer shall be entitled to all remedies provided for herein or otherwise available to Buyer at law or in equity. 10.7 Notice and Cure for Buyer. Buyer shall not be in default under this Agreement unless and until Seller has first given to Buyer written notice of the alleged default, specifying the alleged default in reasonable detail, and 5 Business Days elapse without appropriate curative action by Buyer; provided that no such notice is required for a failure by Buyer to tender performance at Closing.
20 10.8 Notice and Cure for Seller. Seller shall not be in default under this Agreement unless and until Buyer has first given to Seller written notice of the alleged default, specifying the alleged default in reasonable detail, and 5 Business Days elapse without appropriate curative action by Seller; provided that no such notice is required for a failure by Seller to tender performance at Closing. 11. Maintenance of Improvements and Operation of Property. (a) Insurance. Seller agrees to keep in effect until the Closing all insurance coverage which is in effect on the Effective Date. (b) Maintenance. Seller shall maintain all Improvements in the condition existing on the Effective Date (ordinary wear and tear, casualty and condemnation excepted). (c) Operation. Seller shall operate and manage the Property in a manner consistent with Seller’s practices in effect prior to the Effective Date. (d) Tenant Vacancy Condition. Seller covenants and agrees to cause the Tenant Vacancy Condition to be satisfied by the Closing Date, and will be responsible for all fees and costs in order to effectuate same. Seller will keep the Buyer reasonably apprised of the status of the Tenant Vacancy Condition upon Buyer’s request. (e) Service Contracts. Seller will not, so long as this Agreement remains in effect, enter into any Service Contracts of any nature which will be binding on Buyer or the Property from and after Closing. (f) No New Encumbrances. From and after the Effective Date until the date and time of the Closing, Seller shall not convey any portion of the Property or any rights therein, or enter into any conveyance, security document, easement or other agreement, or amend any existing agreement, granting to any Person (other than Buyer) any rights with respect to the Property or any part thereof or any interest whatsoever therein, without Buyer’s prior written consent. 12. Casualty/Condemnation. 12.1. Minor Loss. Subject to the terms and conditions of this Agreement, Buyer shall be bound to purchase the applicable Property for the allocated Purchase Price, without regard to the effect of any damage to the Property or condemnation of any portion of the Property, provided that in the case of a casualty, the casualty is not a Material Casualty, or in the case of a condemnation or threatened condemnation, the condemnation or threatened condemnation is not a Material Condemnation. 12.2 Material Casualty/Condemnation. In the event of a Material Casualty or a Material Condemnation, Buyer may, at its option to be exercised within fifteen (15) Business Days after receipt of notice of the occurrence of the damage or the actual or threatened commencement of condemnation proceedings, either terminate this Agreement with
21 respect to the affected Property or consummate the purchase for the full Purchase Price allocated to such Property as required by the terms hereof. (a) Buyer Elects to Terminate. If Buyer elects to terminate this Agreement with respect to the affected Property by delivering written notice thereof to Seller, then this Agreement shall terminate with respect to the affected property, the applicable portion of the Deposit allocated to such terminated Property shall be returned to Buyer and neither party shall have any further rights or obligations hereunder with respect to the terminated Property, except for those which expressly survive any such termination. (b) Buyer Does Not Elect to Terminate. If Buyer elects to proceed with the purchase or fails to give Seller notice within such fifteen (15) Business Day period that Buyer elects to terminate this Agreement, then this Agreement shall remain in full force and effect with respect to the affected Property. 12.3 Awards and Proceeds. (a) Credit - Condemnation. Upon the Closing, if Buyer is not entitled to or elects not to terminate this Agreement pursuant to Section 12.1 and Section 12.2 above due to a condemnation, there shall be a credit against the Purchase Price due hereunder equal to the amount of any condemnation awards collected by Seller as a result of any such condemnation, less any reasonable sums expended by Seller toward the collection of such awards and to restoration of the Property (the nature of which restoration, but not the right of Seller to effect such restoration, shall be subject to the approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed). (b) Credit – Casualty. Upon the Closing, if Buyer is not entitled to or elects not to terminate this Agreement pursuant to Section 12.1 and Section 12.2 above due to a casualty event, Seller shall be entitled to the insurance proceeds and Seller shall have the obligation to restore the affected Property, which such repair plans shall be subject to the approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed. (c) Assignment. If the proceeds or awards have not been collected as of the Closing, then such proceeds or awards shall be assigned to Buyer, except to the extent needed to reimburse Seller for any reasonable sums expended to collect such proceeds or awards and/or to repair or restore the Property. 13. Assignment. 13.1 Assignment by Buyer. Buyer may freely assign this Agreement to any entity owned or controlled by Fortress Net Lease REIT, without the consent of or prior notice to Seller.
22 13.2 Assignment by Seller. From and after the Effective Date, Seller shall not, without the prior written consent of Buyer, which consent Buyer may withhold in its sole discretion, assign, transfer, convey, hypothecate or otherwise dispose of all or any part of its right, title and interest in the Property. 14. Buyer’s Representation and Warranty. 14.1 Organization and Authority. Buyer does hereby represent and warrant to Seller that (a) it is duly organized, validly existing and in good standing under the laws of the State of its formation; (b) it has all requisite authorizations to enter into this Agreement with Seller and to consummate the transactions contemplated hereby; and (c) the parties executing this Agreement on behalf of Buyer are duly authorized to so do. 14.2 OFAC. Buyer does hereby represent and warrant to Seller that neither Buyer nor, to Buyer’s actual knowledge, any individual having a beneficial interest in Buyer is a Person described by Section 1 of the Executive Order (No. 13224) Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49079 (September 25, 2001), and does not engage in any dealings or transactions, and is not otherwise associated with any such Persons. 15. Broker and Broker’s Commission. Buyer and Seller each warrant and represent to the other that such party has not and will not employ a real estate broker or agent in connection with the transaction contemplated hereby. Each party agrees to indemnify and hold the other harmless from any loss or cost, including reasonable attorney’s fees actually incurred, suffered or incurred by it as a result of the other’s representation herein being untrue. The foregoing indemnities will survive Closing. 16. Notices. 16.1 Form of Notice. Wherever any notice or other communication is required or permitted hereunder, such notice or other communication shall be in writing and shall be delivered by (a) hand, (b) nationally-recognized overnight express delivery service, or (c) by e-mail of a letter in “pdf” format to the addresses set out below: SELLER: MVB Bank, Inc. c/o MVB Financial Corp. 3000 Swiss Pine Way Morgantown, WV 26501 Attn: Donald T. Robinson Email: drobinson@mvbbanking.com
23 With a copy to: Squire Patton Boggs (US) LLP 777 S. Harbour Island Blvd., Suite 420 Tampa, Florida 33602 Attn: Stacy H. Krumin Email: stacy.krumin@squirepb.com BUYER: MountainSeed Real Estate Services, LLC 2100 Powers Ferry Road, Suite 410 Atlanta, Georgia 30339 Attn: Dan Wharton, General Counsel Email: dwharton@mountainseed.com With a copy to: Dain, Torpy, Le Ray, Wiest & Garner, P.C. 175 Federal Street, 15th Floor Boston, Massachusetts 02110 Attn: Timothy Pecci Telephone: (617) 542-4854 Email: tpecci@daintorpy.com ESCROW AGENT: First American Title Insurance Company 666 Third Avenue, 5th Floor New York, New York 10017 Attn: Zivile Giuliani Telephone: (212) 850-0634 Email: zgiuliani@firstam.com 16.2 Effective Date of Notice. Any notice shall be given: (a) on the date of delivery, if delivered by hand; (b) on the date placed in the possession of an overnight express delivery service; or (c) on the date of transmission, if sent by email in portable document format; provided, that any time period allowed by this Agreement for a response to any notice so given, will not commence until receipt of the notice given. 16.3 Deemed Receipt. Refusal to accept delivery or inability to make delivery because of a change of address as to which no timely prior notice was given will conclusively constitute receipt of the notice given. 16.4 Change of Address. Either Seller or Buyer may change its address for notice to another address in the continental United States by giving written notice to the other not less than ten (10) calendar days prior to the effective date of the change of address.
24 17. Governing Law. This Agreement shall be construed and interpreted under the laws of the State in which the Land is located. 18. Construction. The parties agree that this Agreement is the result of negotiation by the parties, each of whom was represented by counsel, and thus, this Agreement shall not be construed against the maker thereof. 19. No Waiver. Neither the failure of either party to exercise any power given such party hereunder or to insist upon strict compliance by the other party with its obligations hereunder, nor any custom or practice of the parties at variance with the terms hereof shall constitute a waiver of either party’s right to demand exact compliance with the terms hereof. 20. Entire Agreement. This Agreement and the documents incorporated herein by reference contain the entire agreement of the parties hereto with respect to the Property, and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein or incorporated herein by reference shall be of any force or effect. 21. Binding Effect. Subject to Section 13, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. In entering this Agreement and the transactions contemplated by this Agreement (including without limitation, entering the Leaseback Lease), Seller is relying upon the advice of its own legal, tax, appraisal, valuation, and accounting professionals and acknowledges and agrees that none of Buyer, Buyer’s assignee pursuant to Section 13.1, any affiliate of Buyer or such assignee, or the legal counsel of any such Person (collectively, the “Buyer/Assignee Parties”), has provided Seller with any accounting, tax, appraisal, valuation, or legal advice in connection with this Agreement or the transactions contemplated by this Agreement (including without limitation, entering the Leaseback Lease). While Buyer may have provided illustrative models to Seller, none of the Buyer/Assignee Parties have provided advice to Seller regarding the advisability of entering into the Agreement (or the Leaseback Lease). The Buyer/Assignee Parties have encouraged Seller to engage its own accounting, tax, appraisal, valuation, and legal professionals in connection with this Agreement and the transactions contemplated by this Agreement (including without limitation, entering the Leaseback Lease), and Seller has engaged such professionals as Seller has deemed appropriate for this transaction in Seller’s reasonable business judgment. In no event shall Seller be entitled to rely upon accounting, tax or legal advice from any of the Buyer/Assignee Parties. 22. Amendments. No amendment to this Agreement shall be binding on any of the parties hereto unless such amendment is in writing and is executed by the party against whom enforcement of such amendment is sought. 23. Possession. Possession of the Property shall be granted by Seller to Buyer no later than the Closing Date, subject to the Permitted Title Exceptions.
25 24. Date For Performance. If the time period or date by which any right, option or election provided under this Agreement must be exercised, or by which any act required hereunder must be performed, or by which the Closing must be held, expires on a non-Business day, then such time period shall be automatically extended through the close of business on the next regularly scheduled business day. 25. Recording. Seller and Buyer agree that they will not record this Agreement. Seller and Buyer agree, upon request of Buyer, to execute and record a memorandum of this Agreement within 3 days after Buyer’s request therefor, on a form reasonably acceptable to the parties. 26. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute but one and the same instrument. Electronic or facsimile signatures shall have the same force and effect as original signatures. 27. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall for any reason and to any extent be held to be invalid or unenforceable, then such term or provision shall be ignored, and to the maximum extent possible, this Agreement shall continue in full force and effect, but without giving effect to such term or provision. 28. Time of Essence. Time is of the essence of this Agreement. 29. Tax Free Exchange Notwithstanding any terms to the contrary in the Agreement, either party shall have the right to transfer the Property in a manner qualifying the sale as part of a tax deferred exchange pursuant to the provisions of Section 1031 of the Internal revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations promulgated thereunder (hereinafter referred to as an “Exchange”). In the event that a party enters into an Exchange, (i) the other party shall consent to the assignment of the proceeds of this Agreement to a qualified “intermediary”; (ii) Buyer shall pay the Purchase Price to the intermediary; and (iii) the other party shall cooperate with respect to the Exchange, including the execution and delivery of any documents necessary to qualify the sale of the Property for the like-kind exchange treatment under the Code and the Treasury Regulations promulgated thereunder. The foregoing agreements are made on condition that (i) the cooperating party incurs no additional cost or expense in connection with the Exchange; (ii) the Exchange shall in no way affect the rights of the cooperating party under any other paragraph of the Agreement; and (iii) the cooperating party shall not be required to acquire title to any other real estate property in connection with the Exchange. 30. Intentionally Omitted.
26 31. Exclusivity. So long as this Agreement remains in effect, Seller shall not, directly or indirectly, list the Property with any broker or otherwise solicit or make or accept any offers to sell the Property, engage in any discussions or negotiations with any third party with respect to the sale or other disposition of the Property, enter into any contracts or agreements (whether binding or not) regarding any disposition of the Property or take any action to encourage or facilitate any of the foregoing or the making of any proposals or inquiries that may reasonably be expected to lead to any of the foregoing. 32. Survival. No representations, warranties, covenants or agreements of Seller or Buyer contained herein shall survive the Closing or the earlier termination of this Agreement, except as expressly provided in this Agreement. The representations, warranties, covenants and/or agreements of Seller and Buyer, as applicable, contained in following Sections or provisions shall survive (i) the Closing for a period of twelve (12) months unless a limited period of survival is established therefor: Section 4.2, Section 8.1, and Section 14; (ii) the earlier termination of this Agreement for a period of 1 year: Section 7.1(b); and (iii) the Closing or, as applicable, the earlier termination of this Agreement for a period of 1 year: Section 15. [END OF AGREEMENT – SIGNATURES APPEAR ON FOLLOWING PAGE]
A-1 EXHIBIT A SCHEDULE OF PROPERTY AND DESCRIPTION OF LAND Address City State Purchase Price Deposit Allocation 301 Virginia Ave. Fairmont WV $5,765,760 $16,408.04 10 Sterling Dr. Sabraton WV $3,273,120 $9,314.56 100 NASA Blvd. Fairmont WV $2,771,040 $7,885.75 1000 Johnson Ave. Bridgeport WV $5,760,000 $16,391.65 TOTAL $17,569,920 $50,000.00 [LEGAL DESCRIPTIONS TO BE INSERTED IF AVAILABLE FROM SELLER]
B-1 EXHIBIT B PERMITTED TITLE EXCEPTIONS 1 Taxes and assessments for the year in which the Closing occurs and subsequent years. 2. Such state of facts which would be shown by a current survey of the Property and not timely objected to by Buyer pursuant to this Agreement. 3. Other title exceptions listed in Buyer’s Title Commitment and not timely objected to by Buyer pursuant to this Agreement. 4. The Leaseback Lease.
C-1 EXHIBIT C LIST OF DUE DILIGENCE MATERIALS 1. Site and Ownership Documents a. Seller’s Title Policy (together with listed exceptions) b. ALTA/ASCM “As-Built” Survey (to be provided at Seller’s expense), together with any other surveys of Property in Seller’s possession or control c. Agreements binding or encumbering the property, including documents containing restrictive covenants or easements d. Site reports (Environmental Reports, geotechnical, engineering, seismic and similar reports) e. Schedule of any litigation or material disputes affecting the property (including settled or adjudicated matters) in the trailing 5 year period f. Owner’s Association Documents (bylaws, ARC approval and similar) g. Written notices from any governmental or quasi-governmental authority of a violation of any law or regulation with respect to the Property (or any portion thereof) which remains uncured or with respect to the exercise by such authority of the right of condemnation or eminent domain. 2. Building Documents a. Plans and Specifications (civil drawings, electrical plans, plumbing plans, fire sprinkler plans, structural plans and similar) b. Warranty agreements c. Service Contract d. Building Inspection Reports e. Building O&M Manual f. Utilities Bills for trailing 3 month period (with evidence of payment) g. Equipment maintenance records h. Schedule of personal property i. Building Permits, Certificates of Completion or similar j. Evidence of Zoning Compliance k. Building Insurance Certificates, copies of insurance policies (redacted if necessary), and schedule of claims for trailing 3 year period. 3. Financial Documents a. Property tax bills for trailing 3 year period (with evidence of payment) b. Statement of assessed value c. Schedule of capital expenditures for trailing 3 year period d. Monthly operating statements for trailing 12 month period e. Annual operating statements for trailing 3 year period
D-1 EXHIBIT D TERMS OF ESCROW 1. DEPOSITS OF FUNDS. All checks, money orders or drafts will be processed for collection in the normal course of business. Escrow Agent may initially deposit such funds in its custodial or escrow accounts which may result in the funds being commingled with escrow funds of others for a time; however, as soon as the Deposit has been credited as collected funds to Escrow Agent’s account, then Escrow Agent shall immediately deposit the Deposit into an interest bearing account with any reputable trust company, bank, savings bank, savings association, or other financial services entity approved by Seller and Buyer. Deposits held by Escrow Agent shall be subject to the provisions of applicable state statutes governing unclaimed property. Seller and Buyer will execute the appropriate Internal Revenue Service documentation for the giving of taxpayer identification information relating to this account. Seller and Buyer do hereby certify that each is aware that the Federal Deposit Insurance Corporation coverages apply to a legally specified maximum amount per depositor. Further, Seller and Buyer understand that Escrow Agent assumes no responsibility for, nor will Seller or Buyer hold same liable for any loss occurring which arises from a situation or event under the Federal Deposit Insurance Corporation coverages. All interest will accrue to and be reported to the Internal Revenue Service for the account of Buyer. Escrow Agent shall not be responsible for any penalties, or loss of principal or interest, or any delays in the withdrawal of the funds which may be imposed by the depository institution as a result of the making or redeeming of the investment pursuant to Seller and Buyer instructions. 2. DISBURSEMENT OF DEPOSIT. Escrow Agent shall disburse all or any portion of the Deposit in accordance with and in reliance upon joint written instructions from both Seller and Buyer. The Escrow Agent shall have no responsibility to make an investigation or determination of any facts underlying such instructions or as to whether any conditions upon which the funds are to be released have been fulfilled or not fulfilled, or to whom funds are released. Notwithstanding the foregoing, in the event that Buyer terminates the Agreement prior to the Inspection Date and delivers a copy of such termination to Escrow Agent, then Escrow Agent shall return the Deposit to Buyer within one (1) business day thereof, and no consent from Seller shall be required for such disbursement. 3. DEFAULT AND/OR DISPUTES. In the event any party to the transaction underlying this Agreement shall tender any performance after the time when such performance was due, Escrow Agent may proceed under this Agreement unless one of the parties to this Agreement shall give to the Escrow Agent written direction to stop further performance of the Escrow Agent’s functions hereunder. In the event written notice of default or dispute is given to the Escrow Agent by any party, or if Escrow Agent receives contrary written instructions from any party, the Escrow Agent will promptly notify all parties of such notice. Thereafter, Escrow Agent will decline to disburse funds or to deliver any instrument or otherwise continue to perform its escrow functions, except upon receipt of a mutual written agreement of the parties or upon an appropriate order of court. In the event of a dispute, the Escrow Agent is authorized to deposit the escrow into a court of competent jurisdiction for a determination as to the proper disposition of said funds. In the event that the funds are deposited in court, the Escrow Agent shall be entitled to file a claim in the proceeding for its costs and counsel fees, if any. 4. ESCROW AGENT FEES AND OTHER EXPENSES. Escrow Agent shall not charge for its services hereunder except for a reasonable and customary closing/escrow fee. Escrow Agent
D-2 shall not be required to advance its own funds for any purpose provided that any such advance, made at its option, shall be promptly reimbursed by the party for whom it is advanced, and such optional advance shall not be an admission of liability on the part of Escrow Agent. 5. PERFORMANCE OF DUTIES. In performing any of its duties under this Agreement, or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may occur as a result of Escrow Agent so acting, or failing to act; provided, however, Escrow Agent shall be liable for damages arising out of its willful default or gross negligence under this Agreement. Accordingly, Escrow Agent shall not incur any such liability with respect to (a) any good faith act or omission upon advice of counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent hereunder, or (b) any good faith act or omission in reliance upon any document, including any written notice or instructions provided for in the Agreement, not only as to its due execution and to the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the proper person or persons and to conform with the provisions of this Agreement. 6. LIMITATIONS OF LIABILITY. Escrow Agent shall not be liable for any loss or damage resulting from the following: (a) The effect of the transaction underlying this Agreement including without limitation, any defect in the title to the real estate, any failure or delay in the surrender of possession of the Property, the rights or obligations of any party in possession of the property, the financial status or insolvency of any other party, and/or any misrepresentation of fact made by any other party; (b) The default, error, act or failure to act by any other party; (c) Any loss, loss of value or impairment of funds which have been deposited in escrow while those funds are in the course of collection or while those funds are on deposit in a depository institution if such loss or loss of value or impairment results from the failure, insolvency or suspension of a depository institution; (d) Any defects or conditions of title to any property that is the subject of this escrow provided, however, that this limitation of liability shall not affect the liability of Escrow Agent under any title insurance policy which it has issued or may issue (NOTE: No title insurance liability is created by this Agreement); and (e) Escrow Agent’s compliance with any legal process including but not limited to, subpoena, writs, orders, judgments and decrees of any court whether issued with or without jurisdiction and whether or not subsequently vacated, modified, set aside or reversed. 7. HOLD HARMLESS. Buyer and Seller shall indemnify the Escrow Agent and hold the Escrow Agent harmless from all damage, costs, claims and expenses arising from performance of its duties as Escrow Agent including reasonable attorneys’ fees, except for those damages, costs, claims and expenses resulting from the gross negligence or willful misconduct of the Escrow Agent. 8. RELEASE OF PAYMENT. Payment of the funds held in escrow by the Escrow Agent, in accordance with the terms, conditions and provisions of this Terms of Escrow, shall fully and
D-3 completely discharge and exonerate the Escrow Agent from any and all future liability or obligations of any nature or character at law or equity to the parties hereto or under this Agreement.
E-1 EXHIBIT E ASSIGNMENT OF WARRANTIES AND OTHER INTANGIBLE PROPERTY This Assignment of Warranties and Other Intangible Property (this “Assignment”) is made and entered into this ___ day of _________, 20__, by and between ____________, a _____________ (“Assignor”), _______________, a ______________ (“Assignee”). This Assignment is being made pursuant to that certain Agreement for Purchase and Sale of Property dated as of __________, 2024 by and between Assignor and [Buyer] (as amended, the “PSA”); terms not otherwise capitalized here shall have the meanings assigned thereto in the PSA. For good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby assign, transfer, set over and deliver unto Assignee all of Assignor’s right, title, and interest in and to the following (collectively, the “Assigned Items”): (i) the warranties held by Assignor affecting the Property (the “Warranties”), including, but not limited to those listed on Exhibit A, if any, attached hereto and made a part hereof for all purposes, and (ii) other Intangible Personal Property (as defined in the PSA) owned by Assignor which relate to the ownership of the Real Property and any other agreements or rights relating to the ownership of the Real Property (collectively, the “Other Intangible Property”). All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Assignment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Executed copies hereof may be delivered by facsimile, PDF or email, and, upon receipt, shall be deemed originals and binding upon the parties hereto. [Signature Page Follows]
E-2 IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed on the day and year first above written. ASSIGNOR: ASSIGNOR NAME, ASSIGNOR ENTITY _______________________ Name: Title: ASSIGNEE: ASSIGNEE NAME, ASSIGNEE ENTITY _______________________ Name: Title: Exhibit A: Warranties
F-1 EXHIBIT F NON-FOREIGN AFFIDAVIT The undersigned deponent (the “Deponent”), having personally appeared before the undersigned notary public and first having been duly sworn according to law, deposes and says under oath as follows: 1. Deponent is presently a ____________ of [SELLER NAME: ________________], [a ______________________] (the “Seller”). 2. In such capacity, the Deponent has personal knowledge of the facts sworn to in this affidavit and such facts are true and correct. 3. The Seller is the owner of certain real estate, a description of which is set forth on Exhibit A attached hereto and made a part hereof, together with all fixtures, improvements, easements and appurtenances related thereto (collectively, the “Property”). 4. Deponent understands that Section 1445 of the United States Internal Revenue Code of 1986 (as amended, the “Code”), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a “foreign person” (as defined in the Code). For U.S. tax purposes (including Section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform [BUYER NAME: ________________], [a ______________________] (the “Transferee”) that withholding of tax is not required upon the disposition of a U.S. real property interest by the Seller, Deponent hereby certifies the following: (a) The Seller is not a “non-resident alien” for purposes of United States income taxation or otherwise a “foreign person,” as defined in Section 1445 of the Code. (b) The Seller is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of the Income Tax Regulations issued under the Code. (c) The Seller’s United States taxpayer identification number is ______________________. (d) The address (and, if different, the mailing address) of the Seller is ____________________________. (e) The Seller owns 100% of the aforesaid Property. (f) Deponent is making this Affidavit pursuant to the provisions of Section 1445 of the Code in connection with the conveyance of the real property described on Exhibit A, attached hereto and incorporated herein by reference, by the Seller to Transferee, which conveyance constitutes the disposition by the Seller of a United States real property interest,
F-2 for the purpose of establishing that Transferee is not required to withhold tax pursuant to Section 1445 of the Code in connection with such disposition. (g) Deponent acknowledges that this Affidavit may be disclosed to the Internal Revenue Service by Transferee, that this Affidavit is made under penalty of perjury, and that any false statement made herein could be punished by fine, imprisonment or both. 5. Under penalty of perjury, I declare that I have examined the foregoing Affidavit and hereby certify that it is true, correct and complete and I further declare that I have the authority to make this affidavit and the certifications contained herein on behalf of the Seller. Sworn to and subscribed before me, this ____ day of ______________, 20__. _______________________ Notary Public [NOTARY SEAL] My commission expires: _________________________________ _________________________, in his/her capacity as ________________ of ______________________
G-1 EXHIBIT G TENANT PROPERTY Furniture Computer Equipment Vault/Safe Deposit Boxes ATM/ITMs Cash Recyclers/Currency Counters Solar Video/Security Equipment Signage
H-1 EXHIBIT H KYC APPLICATION Attached following this page.
1 RESTRICTED PARTY SCREENING (TRANSACTION COUNTERPARTIES) Please complete and return this form as soon as practicable. Should you have any questions or concerns about the privacy and security of personal information collected in this form, please refer to our Online Privacy Statement: https://www.fortress.com/misc/privacy-statement. I. Counterparty full legal name ( you or your ) and address (for individuals, your residential address; for entities, your primary place of business): II. Please identify whether you, including your subsidiaries and affiliates, have operations, offices, or conduct business with counterparties based in any of the following countries or territories: The Crimea region of Ukraine, the Donetsk People s Republic of Ukraine, or the Luhansk People s Republic of Ukraine Y / N Russia Y / N Cuba Y / N Iran Y / N North Korea Y / N Syria Y / N Venezuela Y / N provide a detailed explanation of the circumstances below:
2 III. Please identify whether any of the following apply to you. Check the circle to the left of all that apply and provide the requested information. If the entity completing this form is majority-owned or controlled by one of the regulated organizations noted below, you may check the applicable circle, and please provide evidence (e.g., structure chart; a list of majority-owned subsidiaries excerpted from a public filing) of the link between you and your regulated parent company. You are a U.S. bank regulated by a federal or state regulator OR a non-U.S. bank regula 1 If so, please identify the licensing body and provide a copy of the relevant license or documentary evidence of your regulated status. You are regulated as a broker-dealer, insurance company, mutual fund, or a registered investment adviser in the United States, the United Kingdom or a member state of the European Union. If so, please identify the regulator and provide a copy of the relevant license or documentary evidence of your regulated status. 1 Islands, Channel Islands, Denmark, Finland, France, Germany, Greece, Hong Kong, Iceland, Ireland, Isle of Man, Italy, Japan, Luxembourg, Mexico, Kingdom of the Netherlands, New Zealand, Norway, Portugal, Singapore, South Africa, Spain, Sweden, Switzerland, Turkey, the United Kingdom, the United States, and the EU member states.
3 You are a pooled investment vehicle that is managed or advised by a registered investment adviser in the United States, the United Kingdom or a member state of the European Union. If so, please provide a copy of the registered investment adviser s license or documentary evidence of its regulated status. If so, please identify the exchange and provide documentary evidence of such listing. You are a department or agency of the United States, of any State, or of any political subdivision of a State OR a sovereign government or an entity that is controlled by the government of an Approved Jurisdiction (e.g., a sovereign wealth fund in an Approved Jurisdiction). If so, please provide documentary evidence of such status. If you checked any of the circles above, please skip Section IV and proceed directly to Section V (ERISA Status). If you did NOT check any of the circles above, please complete Section IV. IV. Please provide the information and documentation that applies to you. Type of Counterparty Required Verification Documents Individual Please provide one of the following verification documents: Unexpired Passport, Other unexpired government-issued photo ID.
4 Trust (1) Settlor, Trustee, and property. * If the settlor or trustee is a legal entity, please list: (1) any persons who owns 25% or more of equity interests in the relevant entity; and (2) the single individual with responsibility to control, manage, or direct the relevant entity: (2) Please provide the following verification document for the trust: Governing trust document. (3) Please provide one of the following settlor, trustee, beneficiaries of greater than persons listed in (1): Unexpired Passport, Other unexpired government-issued photo ID. Corporations ***Includes (i) Limited Liability Companies and (ii) listed companies in non-Approved Jurisdictions (1) Does the entity have any ultimate beneficial owners (i.e., natural persons) who own, directly or indirectly, 25% or more of the equity interests in the entity? Yes No If Yes, please list each such ultimate beneficial owner below: (2) Please list each individual who is: (1) for a corporation, an officer, director, or an authorized signatory; (2) for a Limited Liability Company, a member of the board of
5 managers, an officer, or an authorized signatory. (3) person(s) (i.e., individual(s) with responsibility to control, manage, or direct the entity), to the extent not already identified in item (2), above. (4) Please provide the following verification document for the entity: Government-issued document evidencing the e.g., certificate of incorporation, certificate of good standing, or business license). (5) Please provide one of the following verification documents for the control person and, if applicable, all of the ultimate beneficial owners (i.e., natural persons) who own, directly or indirectly, 25% or more of the equity interests in the entity: Unexpired Passport, Other unexpired government-issued photo ID. (6) Please provide a list of all entities that own, directly or indirectly, greater than 25% of the interests in the corporation completing this form. Partnerships (1) General Partner (2) Does the Partnership have any ultimate beneficial owners (i.e., natural persons) who own, directly or indirectly, 25% or more of the equity interests in the Partnership?
6 Yes No If Yes, please list each such ultimate beneficial owner below: (3) (i.e., individual(s) with responsibility to control, man-age, or direct the Partnership), to Partner is not a natural person, identified above: (4) Please provide the following verification documents for the Partnership: Partnership Agreement or Certificate of Formation. (5) Please provide the following verification documents for the General Partner: Government-issued document evidencing the e.g., certificate of incorporation, certificate of good standing, or business license). Partner is a natural person, please provide the information requested below in (6) for such person. (6) Please provide one of the following verification documents for: (i) all of the ultimate beneficial owners (i.e., natural persons) who own, directly or indirectly, 25% or more of the equity interests in the Partnership, and (ii) the control person of the Partnership: Unexpired Passport, Other unexpired government-issued photo ID. (7) Please provide a list of all entities that own, directly or indirectly, greater than 25% of the
7 interests in the partnership completing this form. V. ERISA Status. Do you hold, or are you deemed to hold, Plan Assets2 or do you act on behalf of an entity that holds, or is deemed to hold, Plan Assets? Yes: No: sign the form, below. questions 2 and 3 below. You are relying on one of the following U.S. Department of Labor Prohibited Transaction Class Exemptions (each, a PTCE ): (a) your assets that will be involved in the contemplated transaction are managed by a qualified professional asset manager as such term is defined in PTCE 84-14, and all requirements set forth in PTCE 84-14 are met with respect to the contemplated transaction; (b) your assets that will be involved in the contemplated transaction are managed by an in-house asset manager as such term is defined in PTCE 96-23, and all requirements set forth in PTCE 96-23 are met with respect to the contemplated transaction; (c) you are a bank collective investment fund as such term is defined in PTCE 91-38, and all requirements set forth in PTCE 91-38 are met with respect to the contemplated transaction; (d) you are an insurance company pooled separate account as such term is defined in PTCE 90-1, and all requirements set forth in PTCE 90- 1 are met with respect to the contemplated transaction; or (e) you are an insurance company general account as such term is defined in PTCE 95-60, and all requirements set forth in PTCE 95-60 are met with respect to the contemplated transaction. Yes: No: A person acting as your fiduciary has determined that all requirements of Section 408(b)(17) of ERISA have been met with respect to the contemplated transaction. Yes: No: ___________________________ 2 Retirement Income Security Act of 1974 (and generally includes employee benefit plans subject the Internal Revenue Code of 1986 and entities that are deemed to hold the assets of the foregoing). You may be deemed to hold Plan Assets if you are, or if you act on behalf of, a private investment fund that has greater than 25% participation by benefit plan investors.
8 The undersigned hereby certifies that the information contained herein and the information provided in connection is true and correct as of the date hereof. Signature: Name: Title: Date:
Execution Version MASTER LEASE by and among FNLR MVBB LLC, as Landlord, and MVB BANK, INC., as Tenant
i TABLE OF CONTENTS Page ARTICLE I PROPERTY ................................................................................................................ 1 1.1 Property ........................................................................................................................... 1 1.2 Single, Unitary, Integrated, Indivisible Lease ................................................................ 2 1.3 Joint and Several Liability .............................................................................................. 3 1.4 Term ................................................................................................................................ 3 1.5 Renewal Term ................................................................................................................. 3 1.6 Reservation of Rights Concerning Leases ...................................................................... 4 1.7 Separation of Leases ....................................................................................................... 5 ARTICLE II DEFINITIONS .......................................................................................................... 7 2.1 Definitions ...................................................................................................................... 7 ARTICLE III RENT ..................................................................................................................... 18 3.1 Rent ............................................................................................................................... 18 3.2 Late Payment of Rent ................................................................................................... 18 3.3 Method of Payment of Rent and Other Sums and Charges .......................................... 19 3.4 Net Lease ...................................................................................................................... 19 ARTICLE IV IMPOSITIONS ...................................................................................................... 19 4.1 Impositions .................................................................................................................... 19 4.2 Permitted Contests ........................................................................................................ 20 4.3 General Tax Indemnity ................................................................................................. 21 4.4 Utility Charges .............................................................................................................. 22 ARTICLE V NO ABATEMENT ................................................................................................. 22 5.1 No Termination, Abatement, Etc. ................................................................................. 22 5.2 Assumption of Risk of Loss.......................................................................................... 23 ARTICLE VI OWNERSHIP OF PROPERTY............................................................................. 23 6.1 Ownership of the Property ............................................................................................ 23 6.2 Tenant’s Property .......................................................................................................... 24 ARTICLE VII CONDITION AND USE OF PROPERTY .......................................................... 24 7.1 Condition of the Property ............................................................................................. 24 7.2 Use of the Property; Permitted, Prohibited and Restricted Uses .................................. 25 7.3 Operating Covenant ...................................................................................................... 26 ARTICLE VIII ALTERATIONS ................................................................................................. 26 8.1 Alteration and Additions ............................................................................................... 26 8.2 Title to Alterations ........................................................................................................ 27 ARTICLE IX TRANSFER ........................................................................................................... 27 9.1 Transfer; Subletting and Assignment ........................................................................... 27 9.2 Subletting ...................................................................................................................... 27 9.3 Permitted Assignments ................................................................................................. 27 9.4 Required Assignment and Subletting Provisions.......................................................... 28 9.5 Costs .............................................................................................................................. 28 9.6 No Release of Tenant’s Obligations ............................................................................. 28
ii ARTICLE X MAINTENANCE ................................................................................................... 29 10.1 Maintenance and Repair; Trade Fixtures ...................................................................... 29 10.2 Landlord’s Warranties and Guaranties ......................................................................... 30 ARTICLE XI INSURANCE......................................................................................................... 30 11.1 General Insurance Requirements .................................................................................. 30 11.2 Policy Requirements ..................................................................................................... 32 11.3 Waiver of Subrogation .................................................................................................. 32 11.4 Payment of Premiums ................................................................................................... 32 11.5 Blanket Policies ............................................................................................................ 33 ARTICLE XII CASUALTY AND CONDEMNATION ............................................................. 33 12.1 Casualty; Property Insurance Proceeds ......................................................................... 33 12.2 Tenant’s Obligations Following Casualty .................................................................... 34 12.3 No Abatement of Rent .................................................................................................. 34 12.4 Waiver ........................................................................................................................... 35 12.5 Insurance Proceeds Paid to Landlord Mortgagee .......... Error! Bookmark not defined. 12.6 Tenant’s Right to Terminate Upon Damage Near End of Term ................................... 35 12.7 Condemnation ............................................................................................................... 35 12.8 Condemnation Proceeds Paid to Landlord Mortgagee ................................................. 36 ARTICLE XIII DEFAULT........................................................................................................... 37 13.1 Events of Default .......................................................................................................... 37 13.2 Certain Remedies .......................................................................................................... 39 13.3 Damages ........................................................................................................................ 39 13.4 Receiver ........................................................................................................................ 40 13.5 Waiver ........................................................................................................................... 40 13.6 Application of Funds .................................................................................................... 41 13.7 Landlord’s Right to Cure Tenant’s Default .................................................................. 41 ARTICLE XIV LANDLORD’S FINANCING ............................................................................ 41 14.1 Landlord’s Financing .................................................................................................... 41 14.2 Attornment .................................................................................................................... 42 14.3 Cooperation with Securitization ................................................................................... 42 14.4 Landlord Mortgagee Generally ..................................................................................... 43 14.5 Limitation of Successor Landlord Liability .................................................................. 43 14.6 Lease Modifications ...................................................................................................... 43 14.7 Notice of Default to Landlord Mortgagee .................................................................... 43 14.8 Delivery of Notices to Landlord Mortgagee ................................................................. 44 14.9 Right of Landlord Mortgagee to Enforce Lease ........................................................... 44 14.10 Exercise of Landlord’s Discretion ................................................................................ 44 14.11 Cure of Landlord Defaults ............................................................................................ 44 14.12 Indemnification ............................................................................................................. 44 ARTICLE XV TENANT FINANCING ....................................................................................... 46 15.1 No Leasehold Mortgages .............................................................................................. 46 ARTICLE XVI NO MERGER ..................................................................................................... 46 16.1 No Merger ..................................................................................................................... 46
iii ARTICLE XVII CONVEYANCE BY LANDLORD .................................................................. 46 17.1 Conveyance by Landlord .............................................................................................. 46 ARTICLE XVIII QUIET ENJOYMENT ..................................................................................... 47 18.1 Quiet Enjoyment ........................................................................................................... 47 ARTICLE XIX NOTICES ............................................................................................................ 47 19.1 Notices .......................................................................................................................... 47 ARTICLE XX ENVIRONMENTAL INDEMNITY .................................................................... 48 20.1 Hazardous Substances ................................................................................................... 48 20.2 Notices .......................................................................................................................... 48 20.3 Remediation .................................................................................................................. 48 20.4 Indemnity ...................................................................................................................... 49 20.5 Environmental Inspections ........................................................................................... 49 20.6 Survival ......................................................................................................................... 50 ARTICLE XXI MISCELLANEOUS ........................................................................................... 50 21.1 Survival ......................................................................................................................... 50 21.2 Partial Invalidity ........................................................................................................... 50 21.3 Non-Recourse ............................................................................................................... 50 21.4 Successors and Assigns ................................................................................................ 51 21.5 Governing Law ............................................................................................................. 51 21.6 Consent to Jurisdiction; Waiver of Trial by Jury .......................................................... 51 21.7 Entire Agreement .......................................................................................................... 52 21.8 Headings ....................................................................................................................... 52 21.9 Counterparts .................................................................................................................. 52 21.10 Interpretation ................................................................................................................. 52 21.11 Time of Essence ............................................................................................................ 52 21.12 Further Assurances ....................................................................................................... 52 21.13 Landlord’s Right to Inspect and Show the Property ..................................................... 53 21.14 Acceptance of Surrender ............................................................................................... 53 21.15 Non-Waiver .................................................................................................................. 53 21.16 Accord and Satisfaction ................................................................................................ 53 21.17 Liens .............................................................................................................................. 53 21.18 Cumulative Remedies ................................................................................................... 54 21.19 Confidentiality and Media Releases ............................................................................. 54 21.20 Authority ....................................................................................................................... 54 21.21 Overdue Rate ................................................................................................................ 54 21.22 Delivery of Information ................................................................................................ 55 ARTICLE XXII MEMORANDUM OF LEASE ......................................................................... 55 22.1 Memorandum of Lease ................................................................................................. 55 ARTICLE XXIII BROKERS ....................................................................................................... 56 23.1 Brokers .......................................................................................................................... 56 ARTICLE XXIV ANTI-TERRORISM ........................................................................................ 56 24.1 Anti-Terrorism Representations ................................................................................... 56 ARTICLE XXV REIT PROTECTION ........................................................................................ 57 25.1 REIT Protection ............................................................................................................ 57
iv ARTICLE XXVI FAIR MARKET RENT—APPRAISAL ......................................................... 59 26.1 Fair Market Rent ........................................................................................................... 59 ARTICLE XXVII OFFICERS’ CERTIFICATES—STATUS OF LEASE ................................. 59 27.1 Certificate of Tenant ..................................................................................................... 59 27.2 Certificate of Landlord .................................................................................................. 60 ARTICLE XXVIII CONDITION OF PROPERTY ON EXPIRATION OR TERMINATION OF MASTER LEASE ................................................................................. 60 28.1 Delivery of Property ..................................................................................................... 60
v Schedules and Exhibits Exhibit A Property Exhibit B Base Rent Schedule 10.3 Immediate Repairs
MASTER LEASE This MASTER LEASE (this “Master Lease”) is entered into as of December 30, 2024 (the “Effective Date”), by and among FNLR MVBB LLC, a Delaware limited liability company (together with its successors and assigns, collectively, jointly and severally, “Landlord”), and MVB BANK, INC., a West Virginia banking corporation (together with their permitted successors and assigns, collectively, jointly and severally, “Tenant”). RECITALS Landlord is the fee owner of the Property (as defined below). Landlord desires to lease the Property, as one economic unit, to Tenant, and Tenant desires to lease the Property, as one economic unit, from Landlord, upon the terms set forth in this Master Lease. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I PROPERTY 1.1 Property. Upon and subject to the terms and conditions hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord all of Landlord’s right, title and interest in and to the following (individually and collectively, as the context may require, as one economic unit, the “Property”): (a) the tracts, pieces and parcels of land, as more particularly described in Exhibit A (collectively, the “Land”); (b) (i) all buildings, structures, Fixtures (defined below) and other improvements of every kind now or hereafter located on the Land, together with (ii) all parking areas and roadways appurtenant to such buildings and structures (collectively, the “Leased Improvements”); (c) all equipment, machinery, fixtures, and other items of property, including all components thereof, that are now or hereafter located in, on or used in connection with and permanently affixed to or otherwise incorporated into the Leased Improvements, together with all replacements, modifications, alterations and additions thereto, and other items of real and/or personal property, including all components thereof, now and hereafter located in, on or used in connection with, and permanently affixed to or incorporated into the Leased Improvements, including all HVAC equipment, all furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting, ventilating, refrigerating, incineration, air- and water-pollution-control, waste-disposal, air-cooling and air-conditioning systems and apparatus, security systems, sprinkler systems and fire- and theft-protection equipment, elevators, escalators and lifts (the “Fixtures”), all of which, to the greatest extent permitted by law, are hereby deemed by the parties hereto to constitute real estate, together with all equipment, parts and supplies used to service, repair, maintain and equip the foregoing and all replacements, modifications, alterations and additions thereto; provided, that the foregoing shall exclude all items included within Tenant’s Property; and
2 (d) the Property is leased together with and shall be subject to all of the following (individually, an “Encumbrance” and collectively, “Encumbrances”): (i) any mortgage, deed of trust, lien, charge, pledge, improvisation, security interest, defect in title, encroachment, or other matter whatsoever affecting title to any of the Property or any portion thereof or any interest therein, whether or not of record, (ii) all Operating Agreements and other matters relating to, affecting or appertaining to the Property, the Land, the Leased Improvements, as of the Commencement Date and such subsequent Operating Agreements, covenants, conditions, restrictions, easements, declarations and other matters as may be agreed to by Landlord (or by Tenant, with Landlord’s prior reasonable consent) so long as the same do not adversely affect the Property and otherwise are consistent with the terms and conditions of this Master Lease, in each case whether or not of record, and (iii) all Permitted Encumbrances, including any matters which would be disclosed by an inspection or accurate survey of the Property; provided, however, that Landlord shall not from and after the date of this Master Lease without Tenant’s prior written consent further encumber the Property in such a manner as would materially interfere with Tenant’s use, occupancy or operation of the Property or materially increase Tenant’s obligations or liabilities or materially decrease Tenant’s rights or remedies under this Master Lease. 1.2 Single, Unitary, Integrated, Indivisible Lease. This Master Lease constitutes one single, unitary, integrated, indivisible lease of the entirety of the Property and not separate or severable leases governed by similar terms. The Property constitutes one indivisible, integrated economic unit, and the Base Rent and all other economic and other material lease provisions have been extensively negotiated and agreed to, based on the understanding and agreement of the parties (and each of the parties has entered into this Master Lease in reliance thereon, and it is a material inducement to each of them), that the demise of all of the Property to Tenant herein is a single, unitary, integrated, indivisible, composite, and inseparable transaction. Except as expressly provided in this Master Lease for specific purposes (and then only to the extent so expressly provided), all provisions of this Master Lease apply equally and uniformly to all of the Property as one indivisible, integrated economic unit. An Event of Default with respect to any portion of the Property is an Event of Default as to all of the Property. The parties intend that this Master Lease shall be, and the provisions of this Master Lease shall at all times be construed, interpreted and applied so as to carry out their mutual objective to create, a single, unitary, integrated, indivisible lease of all of the Property and, in particular but without limitation, that, for purposes of 12 USC 1821(e)(1), or any successor or replacement thereof or any analogous state law, or any attempt thereunder to disaffirm or repudiate this Master Lease in whole or in part, this Master Lease is a single, unitary, integrated, indivisible and nonseverable lease and executory contract dealing with one legal and economic unit and that this Master Lease must be disaffirmed or repudiated as a whole with respect to all (and only as to all) of the Property. The parties may amend this Master Lease from time to time or terminate this Master Lease as to one or more Property, or separate and include one or more Property in a separate lease for technical and/or administrative reasons; but no such termination or separation shall in any way change the single, unitary, integrated, indivisible and nonseverable nature of this Master Lease and all of the foregoing provisions of this Section 1.2 shall continue to apply in full force. This Master Lease is separate and distinct from any and all other master leases or leases now or hereafter entered into between Landlord and Tenant or any of their respective Affiliates, and (except with respect to the New Leases, as hereinafter provided) no breach or default under this Master Lease, on the one hand, or any such other master leases or leases, on the other hand, shall constitute a breach or default under such other master lease or leases or this Master Lease, as the case may be.
3 1.3 Joint and Several Liability. In furtherance of the provisions of Section 1.2, and notwithstanding any provisions herein to the contrary, in the event that Tenant is comprised of multiple Persons, it is understood and agreed that each Tenant shall be liable and responsible for the payment of all sums payable and for the performance of all obligations performable by one or more of the entities comprising Tenant, and each Tenant is and shall be and remain at all times jointly and severally obligated and liable as Tenant for (a) all acts, omissions, failures or refusals of any particular Tenant to comply with its own respective obligations under this Master Lease or (b) any breach or default or Event of Default suffered, incurred or created by any particular Tenant under this Master Lease ((a) and (b) collectively, “Tenant Breach”), and Landlord shall be entitled to enforce against Tenant, individually and collectively, any and all rights and remedies under this Master Lease or otherwise available at law or in equity, including, as applicable, termination of the Master Lease, recovery of any or all of possession of the Property, recovery of all Rent and other sums and charges and monetary damages, and all injunctive and other equitable relief, in any order and in any manner as Landlord may elect in its sole discretion, in whole or in part. Without limiting the foregoing: (a) Each and every Tenant Breach shall constitute a breach or default or Event of Default under this Master Lease. (b) Although as a matter of administrative convenience for the Parties (i) the Base Rent and Additional Charges have been determined and are intended to be assessed separately for accounting purposes with respect to each Property, and (ii) it is contemplated that each Tenant shall as a practical matter discharge their joint and several respective obligations for repair, maintenance, insurance, Alterations, casualty restoration and all other obligations under this Master Lease separately with respect to each Property which each Tenant respectively occupies, Landlord shall be entitled to demand and collect all of the Base Rent and Additional Charges, and shall be entitled to demand and obtain performance of all of such obligations, from any Tenant in Landlord’s sole discretion. (c) Each Tenant unconditionally, absolutely and irrevocably waives and relinquishes, and covenants not to claim or assert, in all cases for the express benefit of Landlord, any and all rights of contribution, indemnity, subrogation or recovery (if any) against the other Tenant which may otherwise now or hereafter be available to the nonbreaching Tenant, of any and all amounts which Landlord may recover or be entitled to recover against one Tenant on account of a Tenant Breach by the other Tenant, until and unless Landlord has fully recovered and received payment of all amounts and full performance of all obligations by Tenant under this Master Lease for the entire Term to which Landlord is entitled (including all contingent obligations, indemnities and liabilities of Tenant). 1.4 Term. The “Term” of this Master Lease is the Initial Term plus the Renewal Term, to the extent exercised. The initial term of this Master Lease (the “Initial Term”) shall commence on the Rent Commencement Date (the “Commencement Date”) and end on December 31, 2039, subject to renewal as set forth in Section 1.5. 1.5 Renewal Term. The Initial Term of this Master Lease may be extended at the option of Tenant for three (3) renewal terms (each, a “Renewal Term”) of five (5) years each with respect to all of the Property, but in any event not less than three (3) of the individual Properties,
4 which are then subject to this Master Lease if: (i) at least three hundred sixty (360) days prior to the end of the Initial Term, Tenant delivers to Landlord a Notice that it desires to exercise its right to extend this Master Lease for the Renewal Term (a “Renewal Notice”), which Renewal Notice shall identify the Properties to which it applies; and (ii) no Event of Default shall have occurred and be continuing on the date Landlord receives the Renewal Notice (the “Renewal Exercise Date”) and no Event of Default for any nonpayment of Rent shall have occurred and be continuing on the first day of the Renewal Term. During any such Renewal Term, except as otherwise specifically provided for herein, all of the terms and conditions of this Master Lease shall remain in full force and effect with respect to the applicable Property. The Renewal Term shall commence as to the applicable Property on the expiration date of the Initial Term or prior Renewal Term and shall end on the date immediately preceding the fifth (5th) anniversary thereof. For the avoidance of doubt, no Renewal Notice shall be effective and no Renewal Term shall commence in the event Landlord exercises any right to terminate this Master Lease by reason of any Event of Default which has occurred and is continuing after the Renewal Exercise Date. In the event that Tenant exercises any Renewal Option as to three (3) Properties only, and if the allocated Base Rent for the Properties has not already been determined pursuant to Section 1.7(b)(i), then the allocated Base Rent for the Properties shall be determined in accordance with Section 1.7(b)(i) prior to commencement of the applicable Renewal Term. 1.6 Reservation of Rights Concerning Leases. Subject to the provisions of this Master Lease, the Parties acknowledge and agree that Landlord (for itself and its authorized agents, representatives, vendors and invitees and guests and tenants, as applicable) retains and reserves all rights of access, ingress and egress in, on, over and through the Property for all reasonable purposes in connection with, and to the fullest extent now or hereafter provided or contemplated pursuant to the terms and conditions of the exercise of all rights and remedies of Landlord under this Master Lease, including the following: (a) at all times, upon reasonable prior notice to Tenant (at least forty-eight (48) hours except in the case of an emergency), to inspect the Property and/or perform any obligation which Tenant has failed to perform; and (b) at all reasonable times upon reasonable notice during normal business hours, as may be necessary to comply with Landlord’s obligations under any Landlord Mortgage Document. (c) at all times, general access and right of entry reasonably necessary for or incidental to the exercise of all rights and remedies of Landlord in connection with the foregoing and otherwise under this Master Lease. Landlord shall have the right to grant any of the foregoing rights to its authorized contractors, tenants, vendors, invitees and licensees. Notwithstanding the foregoing, all rights of access and entry shall be exercised reasonably and in such a manner as not to materially interfere with Tenant’s business operations at the Property. Notwithstanding the foregoing, Landlord shall have no right to access any of Tenant’s safes at the Property without the express consent of Tenant and Tenant having an employee present at all times during any such access.
5 1.7 Separation of Leases. (a) From time to time, at the election of Landlord in its sole discretion, so long as there shall be no material adverse effect on Tenant, Landlord may remove one or more Properties (individually, “Removal Property,” and collectively, “Removal Properties”) from this Master Lease and place one or more Removal Properties in one or more separate leases with Tenant on terms and conditions the same as, and in any case no less favorable to Tenant than, those set forth in this Master Lease and as otherwise provided in this Section (individually, “New Lease,” and collectively, “New Leases”), for technical or administrative reasons or to facilitate the sale, financing or other disposition of such Removal Properties, or for another legitimate business purpose of Landlord, all as determined by Landlord in its reasonable discretion. (b) If Landlord elects to so remove any Removal Properties, Landlord shall give Tenant not less than thirty (30) days’ Notice thereof (a “Removal Notice”), and Tenant shall thereafter, within said thirty (30)-day period, execute, acknowledge and deliver to Landlord (or any new owner of the Removal Properties, as designated by Landlord) at no cost or expense to Tenant, one or more New Leases with respect to one or more Removal Properties as determined by Landlord effective as of the date set forth in the Removal Notice (“Removal Date”) for the remaining Term and on the same, and in any case no less favorable to or for Tenant than, terms and conditions as this Master Lease, except for appropriate adjustments (including to Exhibits and Schedules), including as follows: (i) Base Rent. Landlord shall determine, in its reasonable discretion, the initial Base Rent allocated to any Removal Property (which allocation shall be subject to Tenant’s reasonable approval, not to be unreasonably withheld, condition, or delayed); provided, that regardless of how such allocated Base Rent is determined, the sum of the initial Base Rent allocated to the Removal Property and the aggregate Base Rent allocated to the other Property as of the time of determination shall be equal to one hundred percent (100%) of the aggregate Base Rent for all of the Property under this Master Lease at the time of determination of such allocated amounts. (ii) Liabilities and Obligations. The New Lease shall provide that each tenant and each landlord shall be responsible for the payment, performance and satisfaction of all of the duties, obligations and liabilities of Tenant and Landlord, respectively, arising under this Master Lease, insofar as they relate to the Removal Property, that were not paid, performed and satisfied in full prior to the commencement date of the New Lease (and Tenant and Landlord under this Master Lease shall each also remain responsible for the payment, performance and satisfaction of the aforesaid duties, obligations and liabilities not paid, performed and satisfied in full prior to the commencement date of such New Lease), and shall further provide that the Tenant thereunder shall not be responsible for the payment, performance or satisfaction of any duties, obligations and liabilities of Tenant under this Master Lease first arising after the Removal Date. Any property-level reporting requirements set forth in the New Lease shall apply only to the Removal Property(ies). (iii) Deletion of Provisions. At the election of Landlord, any one or more of the provisions of the New Lease pertaining to the REIT status of any member of Landlord (or any Affiliate of any member of Landlord) shall be deleted. In addition, Landlord may delete and eliminate from such New Lease such provisions herein as it elects, provided such deletion and elimination do not in any material respect affect any of the
6 obligations, liabilities, rights or remedies of Tenant under such New Lease with respect to the affected Removal Property. (iv) Amendments. Upon execution of such New Lease, and effective as of the Removal Date, this Master Lease shall be deemed to be amended as follows: (i) the Removal Properties shall be excluded from the Property hereunder; and (ii) Base Rent hereunder shall be reduced by the amount of the Base Rent allocable to the Removal Properties. Such amendments shall occur automatically and without the necessity of any further action by Landlord or Tenant, but, at Landlord’s election, the same shall be reflected in a formal amendment to this Master Lease, which amendment shall be promptly executed by Tenant. (v) Other Undertakings. Tenant shall take such actions and execute and deliver such documents, including the New Lease and new or amended Memorandum(s) of Lease and, if requested by Landlord, an amendment to this Master Lease, as are reasonably necessary and appropriate to effectuate fully the provisions and intent of this Section, and as otherwise are appropriate or as Landlord or any title insurer may reasonably request to evidence such removal and new leasing of the Removal Properties, including memoranda of lease with respect to such New Leases and amendments of all existing memoranda of lease with respect to this Master Lease and an amendment of this Master Lease. (vi) Accounting Treatment. The New Lease shall be a “true lease” and not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Lease are those of a true lease and shall comply with the requirements of Section 6.1. (c) Without limitation of the foregoing, all New Leases shall remain cross-defaulted with this Master Lease unless otherwise required by Landlord; provided, however, that if the landlord under any New Lease shall not be Landlord or an Affiliate of Landlord, any such New Lease shall not be or remain cross-defaulted with this Master Lease. In all cases, whether or not cross-defaulted with this Master Lease, so long as any Landlord Mortgage shall apply to any Removal Property or New Lease, such Removal Property and/or New Lease shall continue to be subject either to the existing SNDA with respect to the Master Lease, or subject to a new SNDA to be delivered by Landlord Mortgagee, Landlord and Tenant on the same terms and conditions as the existing SNDA (having regard to the terms and conditions of the New Lease). (d) To the extent requested by Landlord, Tenant shall cause Lease Guarantors to execute, acknowledge and deliver a separate New Lease Guaranty with respect to each New Lease and a ratification of Guaranty with respect to this Master Lease for the remainder of the Property. (e) For the avoidance of doubt, all costs and expenses relating to the New Leases (including reasonable attorneys’ fees and other reasonable, documented out-of-pocket costs incurred by Tenant or Lease Guarantor for outside counsel, if any) shall be borne by Landlord, and not Tenant.
7 ARTICLE II DEFINITIONS 2.1 Definitions. For all purposes of this Master Lease, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (ii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; (iii) all references in this Master Lease to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Master Lease; (iv) the word “including” shall have the same meaning as the phrase “including, without limitation,” and other similar phrases; and (v) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Master Lease as a whole and not to any particular Article, Section or other subdivision. “12-Month Destruction”: As defined in Section 12.2. “ADA”: The Federal Americans with Disabilities Act (as amended) and similar Legal Requirements with respect to persons with disabilities. “Additional Charges”: One hundred percent (100%) of the amount, of all Operating Expenses; and all other amounts, sums, charges, liabilities and obligations which Tenant assumes or agrees to pay or may become liable for under this Master Lease at any time and from time to time, other than Base Rent; provided, however, in no event shall Additional Charges include, nor shall Tenant be responsible to pay, any costs, expenses, fees or charges under or with respect to (a) any Landlord Mortgage Documents, or (b) any liens, charges or encumbrances suffered as a result of an affirmative action by Landlord or created by Landlord, other than Permitted Encumbrances; and, in the event of any failure on the part of Tenant to pay any of those items (except where such failure is directly due to the acts or omissions of Landlord), every fine, penalty, interest and cost which may be added for nonpayment or late payment of such items, including all amounts for which Tenant is or may become liable to indemnify Landlord and Indemnified Parties under this Master Lease (including reasonable attorneys’ fees and court costs). All Additional Charges (however denominated) shall be collectible and payable as additional rent under this Master Lease. “Affiliate”: With respect to any Person, the term “Affiliate” shall mean any person which, directly or indirectly, Controls or is Controlled by or is under common Control with such Person. “Alterations”: As defined in Section 8.1. “Appraiser”: As defined in Section 26.1. “Award”: All compensation, sums or anything of value awarded, paid or received on a total or partial Condemnation. “Bank Branch”: The retail bank branch operated at a particular Property.
8 “Base Rent”: (a) During the Initial Term, the Base Rent shall be as follows: (i) during the first (1st) Rent Year, the Base Rent shall be an annual amount equal to $1,537,368.00; and (ii) during each Rent Year commencing with the second (2nd) Rent Year, the Base Rent shall be increased by an annual amount equal to two percent (2%), cumulative and compounded, over the Base Rent for the immediately preceding Rent Year (as so increased). A schedule of the Base Rent for the Initial Term is set forth on Exhibit B hereto. (b) During the Renewal Term (if any), the Base Rent shall be as follows: (i) during the first year of the Renewal Term, Base Rent shall be an annual amount equal to the greater of (a) one hundred two percent (102%) of the Base Rent for the immediately preceding Rent Year and (b) the Fair Market Rent for the entire Property, determined promptly after the delivery of the applicable Renewal Notice, and (ii) during each Rent Year commencing with the second (2nd) year of the Renewal Term, the Base Rent shall be increased by an annual amount equal to two percent (2%), cumulative and compounded, over the Base Rent for the immediately preceding year (as so increased). “Business Day”: Each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which national banks in the City of New York, New York are, or the Bank Branch is, authorized, or obligated, by law or executive order, to close. “Cash”: Cash and cash equivalents and all instruments evidencing the same or any right thereto and all proceeds thereof. “Change of Control”: Except as permitted hereunder, (i) the direct or indirect sale of all or substantially all of the assets of Tenant or Tenant’s Parent, whether held directly or through Subsidiaries, in one transaction or in a series of related transactions , (ii) (a) Tenant ceasing to be a Subsidiary (directly or indirectly) of Tenant’s Parent or (b) Tenant’s Parent ceasing to Control Tenant, or (iii) a change of Control of Tenant’s Parent; provided, that turnover in the Board of Directors of Tenant’s Parent in the ordinary course of its business, nor the trading of Tenant’s stock on a public exchange, shall not be considered a Change of Control hereunder. “Claim”: As defined in Section 14.12(a). “Code”: The Internal Revenue Code of 1986 and, to the extent applicable, the Treasury Regulations promulgated thereunder, each as amended from time to time. “Commencement Date”: As defined in Section 1.4. “Condemnation”: As defined in Section 12.7(a). “Control” of any entity means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controlling” each have the meanings correlative thereto). “dollars” and “$” shall mean the lawful money of the United States.
9 “Downgrade Period” means any period during the continuance of which (i) if Tenant’s commercial paper, short-term debt obligations or other short-term deposits and long-term senior unsecured debt obligations are rated by each of Moody’s, Fitch and S&P, at least two of such rating agencies do not rate Tenant as Investment Grade, or (ii) if Tenant’s commercial paper, short- term debt obligations or other short-term deposits and long-term senior unsecured debt obligations are rated by one or two of Moody’s, Fitch and S&P, at least one such rating agency does not rate Tenant as Investment Grade. For the avoidance of doubt, a Downgrade Period shall not exist at such times when none of Tenant’s commercial paper, short-term debt obligations and other short- term deposits, and long-term senior unsecured debt obligations are rated by any of Moody’s, Fitch or S&P. “Effective Date”: As defined in the Preamble. “Encumbrance” or “Encumbrances”: As defined Section 1.1(d). “Environmental Costs”: As defined in Section 20.4. “Environmental Issues”: As defined in Section 14.12(b)(ii). “Environmental Laws”: Any and all federal, state, municipal and local laws, statutes, ordinances, rules, regulations, guidances, policies, orders, decisions, determinations, decrees or judgments, whether statutory or common law, as amended from time to time, now or hereafter in effect, or promulgated, pertaining to pollution, the environment, natural resources, public health and safety and industrial hygiene, including the management, use, generation, manufacture, labeling, registration, production, storage, release, discharge, spilling, leaking, emitting, injecting, escaping, abandoning, dumping, disposal, handling, treatment, removal, decontamination, cleanup, transportation or regulation of or exposure to any Hazardous Substance, including the Industrial Site Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the Resource Conservation and Recovery Act, the Federal Insecticide, Fungicide, Rodenticide Act, the Safe Drinking Water Act and the Occupational Safety and Health Act. “Event of Default”: As defined in Section 13.1. “Fair Market Rent”: With respect to the Properties or any portion thereof, the prevailing market rent (including all fixed, percentage and Additional Charges) which is generally obtained by owners or landlords of real property on an arm’s-length basis for leases of similar space (size, location and amenities) in the geographical market where the subject space is located, taking into account all of the material terms and conditions of the prospective lease, including tenant improvements and allowance, delayed or free rent, security deposits and the like, and in the case of the Property, subject to the applicable terms and conditions of this Master Lease, such Fair Market Rent to be determined by mutual agreement by the parties or in accordance with Article XXVI. “FDIC”: The Federal Deposit Insurance Corp. “Financial Statements”: (i) For a Fiscal Year, Tenant’s statement (and Lease Guarantor’s Financial Statement, if applicable, which may be provided on a consolidated basis) of income,
10 stockholders’ equity and cash flows for such period and the related balance sheet as at the end of such period, together with the notes thereto, all in reasonable detail, showing the financial position of Tenant and Guarantor and setting forth in comparative form the corresponding figures for the preceding Fiscal Year and prepared in accordance with GAAP and audited by a nationally recognized accounting firm, and (ii) for a fiscal quarter, (a) Tenant’s statement (and Lease Guarantor’s Financial Statement, if applicable, which may be provided on a consolidated basis) of income, stockholders’ equity and cash flows for such period and for the period from the beginning of the Fiscal Year to the end of such period and the related balance sheet as at the end of such period, together with the notes thereto, all in reasonable detail, showing the financial position of Tenant and Guarantor and setting forth in comparative form the corresponding figures for the corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP, and (b) a reasonably detailed calculation of site-level deposits for each Bank Branch for such period, together with such supporting materials and work papers as may be reasonably requested by Landlord. “Fiscal Year”: The fiscal year of Tenant for public reporting purposes. “Fitch” means Fitch Ratings, Inc. and its successors. “Fixtures”: As defined in Section 1.1(c). “Force Majeure”: A delay due to acts of God, governmental restrictions, stays, judgments, orders, decrees, enemy actions, civil commotion, fire, casualty, strikes, work stoppages, shortages of labor or materials or similar causes beyond the reasonable control of Tenant; provided, that (1) any period of Force Majeure shall apply only to performance of the obligations necessarily affected by such circumstances; and (2) Force Majeure shall not include the unavailability or insufficiency of funds. “Foreclosure Purchaser”: As defined in Section 14.1. “GAAP”: United States generally accepted accounting principles, as in effect from time to time. “General Tax Indemnity”: As defined in Section 4.3. “Governmental Authority” means any federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official or other legislative, judicial, regulatory, administrative or governmental authority. “Handling”: As defined in Section 20.4. “Hazardous Substances”: Each and every element, compound, chemical mixture, emission, contaminant, pollutant, material, waste or other substance (including radioactive substances, whether solid, liquid or gaseous) which is defined, determined or identified as hazardous, or toxic or under any Environmental Law or for which liability or standards of care or a requirement for investigation or remediation are imposed under, or that are otherwise subject to, Environmental Law, including asbestos, asbestos containing materials, urethane, polychlorinated
11 biphenyls, per-and polyfluoroalkyl substances, mold, any petroleum product, petroleum derived products and/or its constituents or derivatives, and any caustic, flammable or explosive materials. “Impositions”: All taxes, including capital stock, franchise, margin and other state taxes of Landlord, ad valorem, sales, use, single business, gross receipts, transaction privilege, rent or similar taxes, including tax increases and re-assessments; assessments including assessments for supplemental assessments and public improvements or benefits, whether or not commenced or completed prior to the date hereof and whether or not to be completed within the Term; water, sewer and other utility levies and charges; excise tax levies; fees including license, permit, inspection, authorization and similar fees; and all other governmental charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of the Property or the Property and/or the Rent and Additional Charges (other than Impositions) and all interest and penalties thereon attributable to any failure in payment by Tenant (other than failures arising directly from the acts or omissions of Landlord) which at any time prior to, during or in respect of the Term hereof may be assessed or imposed on or in respect of or be a lien upon (i) Landlord or Landlord’s interest in the Property, (ii) the Property or any part thereof or any rent therefrom or any estate, right, title or interest therein, (iii) any occupancy, operation, use or possession of, or sales from or activity conducted on or in connection with the Property or the property or the leasing or use of the Property or the property or any part thereof, or (iv) any Tenant’s Property; provided, however, that nothing contained in this Master Lease shall be construed to require Tenant to pay (a) any tax based on net income (whether denominated as a franchise or capital stock or other tax) imposed on Landlord or any other Person, (b) any transfer, or net revenue tax of Landlord or any other Person except Tenant and its successors, (c) any tax imposed with respect to the sale, exchange or other disposition by Landlord of any Property or the proceeds thereof, or (d) any principal or interest on any Indebtedness on or secured by the Property owed to a Landlord Mortgagee for which Landlord or its Subsidiaries is the obligor; provided, further, that Impositions shall include any tax, assessment, tax levy or charge set forth in the foregoing clause (a) or (b) that is levied, assessed or imposed in lieu of, or as a substitute for, any Imposition. “Indebtedness”: With respect to any Landlord Mortgage, all indebtedness for borrowed money and related obligations (including all principal, interest, late charges, prepayment or other penalties, or any other charges solely in connection with the payment, prepayment or nonpayment thereof). For the avoidance of doubt, Indebtedness shall expressly exclude (i) all costs, expenses or obligations directly related to the use, occupancy, repair, allocation or maintenance of the Property or otherwise arising out of the Property and (ii) all Impositions, Utility Charges and all other costs, fees or charges (other than Indebtedness) under all Encumbrances, all of which shall remain the obligation of Tenant. “Indemnified Parties”: Landlord and Landlord Mortgagee, and each of their respective successors and assigns, their members, managers, partners, shareholders, officers, directors, and agents. “Initial Term”: As defined in Section 1.4. “Insurance Requirements”: The terms and conditions of all insurance policies required to be maintained by Tenant by this Master Lease and any other Encumbrances, and all
12 requirements of the issuer of any such policy and of any insurance board, association, organization or company necessary for the maintenance of any such policy. “Investment Grade” means a Person whose commercial paper, short-term debt obligations or other short-term deposits and whose long-term senior unsecured debt obligations are rated (if rated by a rating agency), respectively, at least (i) “A–3” and “BBB-” by S&P, (ii) “P–3” and “Baa3” by Moody’s, or (iii) “F-3 and “BBB-“ by Fitch. “Land”: As defined in Section 1.1(a). “Landlord”: As defined in the Preamble. “Landlord Encumbrances”: Any Encumbrances suffered as a result of an affirmative action by Landlord or created by Landlord which either are not otherwise Tenant’s obligations or a result of Landlord performing Tenant’s obligations under this Master Lease. “Landlord Mortgage”: any mortgage, deed of trust or other security agreement securing any Indebtedness or any other Encumbrance placed on the Property in accordance with the provisions of Article XIV. “Landlord Mortgage Documents”: With respect to each Landlord Mortgage and Landlord Mortgagee, the applicable Landlord Mortgage, loan agreement, debt agreement, credit facility agreement, indenture, lease, note, collateral assignment instruments, guarantees, environmental and indemnity agreements and other documents or instruments evidencing, securing or otherwise relating to the loan made, credit extended, or lease or other financing vehicle entered into pursuant thereto, as amended and supplemented from time to time in accordance with Article XIV. “Landlord Mortgagee”: Each holder of any Landlord Mortgage. “Landlord Mortgagee Indebtedness” The outstanding principal owed to a Landlord Mortgagee. “Lease Guarantor”: Tenant’s Parent and each entity that guarantees the payment or collection of all or any portion of the amounts payable by Tenant, or the performance by Tenant of all or any of its obligations, under this Master Lease from time to time. “Lease Guaranty”: Any guaranty by a Lease Guarantor of the obligations of Tenant under this Master Lease, as the same may be amended, supplemented or replaced from time to time with Landlord’s prior written consent or otherwise in accordance with the terms of this Master Lease. In the event of any New Lease, or any new lease to any Successor Landlord, any Lease Guaranty shall continue to apply to same and Tenant shall cause each then-existing Lease Guarantor of this Master Lease to execute, acknowledge and deliver an amendment to any existing Lease Guaranty or a new Lease Guaranty (each, a “New Lease Guaranty”) on all of the same terms and conditions of the existing Lease Guaranty, modified appropriately to reflect such New Lease or new lease to Successor Landlord, as the case may be. “Lease Provisions”: As defined in Section 21.15.
13 “Lease Year”: The first (1st) Lease Year shall be the period commencing on the Commencement Date and ending on the last day of the calendar month in which the first (1st) anniversary of the Commencement Date occurs, and each subsequent Lease Year shall be each period of 12 full calendar months after the last day of the prior Lease Year, except that unless the Renewal Term is exercised, the final Lease Year of the Initial Term shall end on December 31, 2039. “Leased Improvements”: As defined in Section 1.1(b). “Leasehold Estate”: As defined in Section 15.1. “Legal Requirements”: All federal, state, county, municipal and other governmental statutes, laws, rules, policies, guidance, codes, orders, regulations, ordinances, permits, licenses, covenants, conditions, restrictions, judgments, decrees and injunctions (including common law and Environmental Laws) affecting either the Property or Tenant’s Property or the construction, use or alteration thereof, whether now or hereafter enacted and in force, including any which may (i) require repairs, modifications or alterations in or to the Property and/or Tenant’s Property, (ii) in any way adversely affect the use and enjoyment thereof, or (iii) regulate the transport, handling, use, storage or disposal or require the cleanup or other treatment of any Hazardous Substance. “Liability” or “Liabilities” means with respect to any Person, any and all claims, debts, demands, actions, causes of action, suits, damages, costs, obligations, accruals, accounts payable, reckonings, bonds, indemnities and similar obligations, agreements, promises, guarantees, make whole agreements and similar obligations, and other liabilities and requirements of such Person, including all contractual obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, liquidated or unliquidated, reserved or unreserved, known or unknown, or determined or determinable, whenever arising and including those arising under any applicable law, rule, regulation, action, threatened or contemplated action, order or consent decree of any Governmental Authority or any award of any arbitrator or mediator of any kind, and those arising under any contract, including those arising under this Agreement, in each case, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person. For the avoidance of doubt, Liabilities shall include reasonable attorneys’ fees, the costs and expenses of all demands, assessments, judgments, settlements and compromises, and any and all other costs and expenses whatsoever reasonably incurred in connection with anything contemplated by the preceding sentence. “Local Remedies”: As defined in Section 21.5. “Master Lease”: As defined in the Preamble. “Moody’s” means Moody’s Investors Service, Inc. and its successors. “New Lease” or “New Leases”: As defined in Section 1.7(a). “New Lease Guaranty”: As defined in definition of “Lease Guaranty.” “Notice”: A written notice given in accordance with Article XIX.
14 “OFAC”: As defined in Section 24.1. “Officer’s Certificate”: A certificate of Tenant or Landlord, as the case may be, signed by a senior officer or managing or general partner of such party authorized to so sign by resolution of its board of directors or by its sole member or by the terms of its by-laws or operating agreement or partnership agreement, as applicable. “Operating Agreements”: All reciprocal easement, operating and/or construction agreements, easements and rights of way, covenants, conditions, restrictions, declarations and similar agreements or encumbrances affecting the access, ingress, egress, use, maintenance, construction, parking, signage, occupancy or operation of any Property, in existence from time to time, whether or not of record. “Operating Covenant”: The covenants and obligations of Tenant contained in Section 7.3, collectively. “Operating Expenses”: All costs and expenses of any kind, nature, and description incurred in connection with the maintenance, operation, care and repair of the Property which are necessary or desirable for the operation and maintenance of the Property, including all payments or charges due and payable with any Encumbrance, in accordance with the standard maintained in the City and State in which the Property is located for similar buildings and sites (subject to any other specific standards applicable to the Property as provided in this Master Lease), and which are not duplicative of other costs and expenses provided in the Master Lease or otherwise required to be paid or reimbursed by Tenant under this Master Lease. “Overdue Rate”: On any date, an annual rate equal to five (5) percentage points above the Prime Rate, but in no event greater than the maximum rate then permitted under applicable law. “Party” or “Parties”: Landlord and/or Tenant, their successors and assigns as party to this Master Lease. “Payment Date”: As defined in Section 3.1. “Permitted Encumbrances”: (i) Liens imposed by law, such as mechanics and materialmen Liens in each case for sums not yet overdue for a period or more than thirty (30) days or which are being diligently contested in good faith by appropriate proceedings or such other Liens arising out of judgments or awards against Tenant (for purposes of this definition of “Permitted Encumbrances,” “Tenant” shall mean Tenant and any Person claiming by, through or under Tenant, as applicable) with respect to which Tenant shall then be proceeding with an appeal or other proceedings for review if enforcement of such Liens is bonded or stayed, (ii) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if enforcement of such Liens is bonded or stayed, (iii) all matters disclosed on the title commitment or title policy delivered to Landlord in connection with Landlord’s acquisition of the Properties, together with minor survey exceptions (or any state of facts an accurate survey might show), minor encumbrances, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and
15 telephone lines and other similar purposes (including, for the avoidance of doubt, Operating Agreements), or zoning or other restrictions as to the use of the Properties or Liens incidental to the conduct of the business of Tenant or to the ownership of its properties which were not incurred in connection with any indebtedness for borrowed money and which do not in the aggregate materially adversely affect the value of any Property or materially impair its use in the operation of the business of Tenant, (iv) Liens arising from Uniform Commercial Code financing statement filings regarding leases of Tenant’s Property entered into by Tenant in the ordinary course of business, (v) Liens securing judgments against Tenant (or any Person claiming by, through or under Tenant) for the payment of money (excluding judgments for payment of borrowed money) so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period with which such proceedings may be initiated has not expired, (vi) leases or subleases which are existing on the date hereof or entered into after the date hereof in accordance with the terms of this Master Lease and (vii) Liens pursuant to or in connection with the Operating Agreements which have not been created or incurred by Tenant. In addition, Permitted Encumbrances shall include any Landlord Mortgage and Landlord Mortgage Documents (including any Liens securing any notes issued in connection therewith, but not for purposes of determining Tenant’s obligations). “Person” or “person”: Any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity. “Prime Rate”: On any date, a rate equal to the annual rate on such date publicly announced by JPMorgan Chase Bank, N.A. (provided, that if JPMorgan Chase Bank, N.A. ceases to publish such rate, the Prime Rate shall be determined according to the Prime Rate of another nationally known money center bank reasonably selected by Landlord) to be its prime rate for ninety (90)-day unsecured loans to its corporate borrowers of the highest credit standing, but in no event greater than the maximum rate then permitted under applicable law. “Prohibited Persons”: As defined in Section 24.1. “Property” or “Properties”: As defined in the Recitals. “Removal Date”: As defined in Section 1.7(b). “Removal Notice”: As defined in Section 1.7(b). “Removal Property”: As defined in Section 1.7(a). “Renewal Exercise Date”: As defined in Section 1.5. “Renewal Notice”: As defined in Section 1.5. “Renewal Term”: As defined in Section 1.5. “Rent”: Collectively, the Base Rent and all Additional Charges.
16 “Rent Year”: The first (1st) Rent Year shall be the period commencing on the Commencement Date and ending on December 31, 2025, and each subsequent Rent Year shall be each period of 12 full calendar months after the last day of the prior Rent Year, except that unless the Renewal Term is exercised, the final Rent Year of the Initial Term shall end on December 31, 2039. “Retail Operations Claims”: As defined in Section 14.12(b)(i). “Securitization” means one or more sales, dispositions, transfers or assignments by Landlord Mortgagee to a special purpose corporation, trust or other entity of notes evidencing obligations to repay secured or unsecured loans owned by Landlord Mortgagee, including any loan secured by a Landlord Mortgage (and, to the extent applicable, the subsequent sale, transfer or assignment of such notes to another special purpose corporation, trust or other entity), and the issuance of bonds, certificates, notes or other instruments evidencing interests in pools of such loans, whether in connection with a securitization or a sale of loans in anticipation of a securitization. “SNDA”: As defined in Section 14.1. “State”: With respect to each Property, the state or commonwealth in which such Bank Branch is located. “Structural Alterations” : shall mean an Alteration that (i) will result in a change in the footprint of the Leased Improvements, (ii) involves the addition of one or more floors to the Leased Improvements, (iii) affects the structural elements or any exterior walls of the Leased Improvements, (iv) decreases the rentable square footage of the Property other than to a de minimis extent or (v) adversely affects the proper functioning and/or capacity of the building systems in the Leased Improvements. “Sublease” or “Subleases”: As defined in Section 9.2. “Subsidiary”: As to any Person, (i) any corporation more than fifty percent (50%) of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time of determination owned by such Person and/or one or more Subsidiaries of such Person, and (ii) any partnership, limited liability company, association, joint venture or other entity in which such person and/or one or more Subsidiaries of such person has more than a fifty percent (50%) equity interest at the time of determination. “Successor Landlord”: As defined in Section 14.2. “Taxes”: As defined in Section 4.3. “Tenant”: As defined in the Preamble. “Tenant Detriment”: As defined in Section 14.1.
17 “Tenant’s Award”: As defined in Section 12.8(b). “Tenant Breach”: As defined in Section 1.3. “Tenant Confidential Information”: As defined in Section 21.22. “Tenant’s Parent”: MVB Financial Corp. “Tenant’s Property”: With respect to each Property, all trade fixtures and other assets (other than the Property and property owned by a third party) owned by Tenant and primarily related to or used in connection with the operation of the business conducted on or about the Property, together with all replacements, modifications, additions, alterations and substitutes therefor, subject to terms, conditions and limitations of this Master Lease. “Term”: As defined in Section 1.4. “Third-Party Charges”: As defined in Section 3.2. “Third-Party Late Charges”: As defined in Section 3.2. “Threshold Amount” shall mean $50,000.00. “Total Condemnation”: As defined in Section 12.7(c). “Transfer”: Any sale, assignment, transfer, mortgage, pledge, hypothecation, granting of any security interest, lease, sublicense, license, or occupancy arrangement, whether directly or indirectly, voluntarily or involuntarily, or by operation of law, including any Change of Control (including any agreement, or granting any option or right, to do or effectuate any of the foregoing, whether conditional, provisional or absolute). “Unrelated Successor Tenant”: As defined in Section 9.3. “Unsuitable for Its Intended Use”: A state of any Bank Branch such that by reason of damage or destruction, or a partial taking by Condemnation, such Bank Branch cannot, following restoration thereof (to the extent commercially practical), be operated on a commercially practicable basis for its use for the operation of a retail bank and related ancillary uses, taking into account, among other relevant factors, the amount of square footage and the estimated revenue affected by such damage or destruction. “U.S. Person”: A “United States person” as defined in the Code. “Utility Charges”: All fees, costs, expenses and charges for electricity, power, gas, oil, water, sanitary and storm sewer, septic system refuse collection, security, and other utilities and services used or consumed in connection with the applicable Property during the Term. “Wire Transfer”: As defined in Section 3.3.
18 ARTICLE III RENT 3.1 Rent. (a) Subject to Section 3.1(b) and 3.1(c) below, during the Term, Tenant will pay to Landlord the Base Rent and Additional Charges in lawful money of the United States of America in the manner provided in Section 3.3. The Base Rent during any Rent Year is payable in advance in consecutive monthly installments equal to one twelfth (1/12th) of the annual Base Rent on the first (1st) Business Day of each calendar month during that Rent Year (each, a “Payment Date”). (b) Notwithstanding the foregoing, the first Payment Date (the “Rent Commencement Date”) shall occur on the Effective Date and Tenant shall pay the sum of (A) the amount of prorated Base Rent from and after the Rent Commencement Date through the end of the applicable calendar month, plus (B) the amount of Base Rent payable for the next succeeding calendar month. 3.2 Late Payment of Rent. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent will cause Landlord to incur costs and administrative complications not contemplated hereunder, the exact amount and scope of which is presently anticipated to be extremely difficult to ascertain. Accordingly, if any installment of Rent, other than Additional Charges payable to a Person other than Landlord (“Third-Party Charges”), shall not be paid within five (5) days after its due date, Tenant will pay Landlord on demand a late charge equal to the lesser of (a) five percent (5%) of the amount of such installment or (b) the maximum amount permitted by law; provided, however, that with respect to the first payment of Rent in any period of twelve (12) consecutive months that is not paid within five (5) days after its due date, such late charge shall not apply unless Tenant shall fail to pay such Rent within five (5) days following delivery to Tenant of written notice of such delinquency. The parties agree that this late charge represents a fair and reasonable estimate of the costs and expenses (including economic losses) that Landlord will incur by reason of late payment by Tenant. The parties further agree that such late charge is Rent and not interest and such assessment does not constitute a lender or borrower/creditor relationship between Landlord and Tenant. Thereafter, if any installment or payment of Rent (other than Third-Party Charges) shall not be paid within ten (10) days after its due date, the amount unpaid, including any late charges previously accrued, shall bear interest at the Overdue Rate from the due date of such installment or payment to the date of payment thereof, and Tenant shall pay such interest to Landlord on demand; provided, however, that with respect to the first payment of Rent in any period of twelve (12) consecutive months that is not paid within ten (10) days after its due date, such interest shall not apply unless Tenant shall fail to pay such Rent within five (5) days following delivery to Tenant of written notice of such delinquency. The payment of such late charge or such interest shall not constitute waiver of, nor excuse or cure, any default under this Master Lease, nor prevent Landlord from exercising any other rights and remedies available to Landlord. Notwithstanding the foregoing, Tenant shall be responsible for payment of all interest, late charges and other costs and fees imposed by third parties (“Third-Party Late Charges”) with respect to late payments of Third-Party Charges; provided that, if Landlord shall elect in its discretion to pay (without any obligation to do so) any Third-Party Charges which are not paid by Tenant when due (together with any Third-Party Late Charges), Tenant shall pay Landlord a late charge and interest, at the rates provided above, on all amounts so paid by Landlord and which Tenant fails to pay to Landlord within five (5) days (as to late charge) or ten (10) days (as to interest), respectively, after the date of Landlord’s payment. Any interest or late charge which is paid by Tenant and which is
19 subsequently determined to have been charged to or paid by Tenant in error, shall be refunded by Landlord to Tenant without interest. 3.3 Method of Payment of Rent and Other Sums and Charges. Base Rent and Additional Charges to be paid to Landlord and all sums to be paid by Landlord to Tenant shall be paid by electronic funds transfer debit transactions through wire transfer or ACH payment of immediately available funds (“Wire Transfer”) and shall be initiated by Tenant for settlement on or before the applicable Payment Date (or when otherwise due and payable). The Parties shall provide each other with appropriate Wire Transfer information in a Notice from each Party to the other. If Landlord directs Tenant to pay any Rent to any party other than Landlord, Tenant shall send to Landlord, simultaneously with such payment, a copy of the transmittal letter or invoice and a check whereby such payment is made or such other evidence of payment as Landlord may reasonably require. All other payments by Tenant of all other sums and charges hereunder, and all payments by Landlord to Tenant which are provided herein, shall be made by Wire Transfer. Any Third-Party Charges paid directly by Tenant shall be deemed to have been paid to Landlord without further recourse to Tenant upon receipt of such payment. 3.4 Net Lease. Landlord and Tenant acknowledge and agree that (i) this Master Lease is, and is intended to be, what is commonly referred to as a “net, net, net” or “triple net” lease, and (ii) the Rent shall be paid absolutely net to Landlord, so that this Master Lease shall yield to Landlord the full amount or benefit of the installments of Base Rent and Additional Charges throughout the Term with respect to the entire Property, all as more fully set forth in Article V and subject to any other provisions of this Master Lease that expressly provide for adjustment or abatement of Rent or other charges (if any). Except as otherwise expressly set forth in this Master Lease, Tenant assumes the responsibility for the condition, use, operation and maintenance of the Property, and Landlord shall have no responsibility or liability therefor. If Landlord commences any proceedings for nonpayment of Rent, Tenant will not interpose any counterclaim or cross complaint or similar pleading of any nature or description in such proceedings (nor move or agree to consolidate in such proceedings any claim by Tenant in any other proceedings) unless such claims are not available as separate proceedings. The covenants to pay Base Rent and Additional Charges and other amounts hereunder are independent covenants, and Tenant shall have no right to hold back, offset, deduct, credit against or fail to pay in full any such amounts for claimed or actual default or breach by Landlord of whatsoever nature or for any other reason whatsoever. For the avoidance of doubt, Tenant shall not have, and hereby expressly, irrevocably and absolutely waives, relinquishes, and covenants not to assert, accept or take advantage of, any right to deposit or pay with or into any court or other third-party escrow, depository account or tenant account with respect to any disputed Rent, or any Rent pending resolution of any other dispute or controversy with Landlord. ARTICLE IV IMPOSITIONS 4.1 Impositions. (a) Subject to Section 4.2 relating to permitted contests, Tenant shall pay, or cause to be paid, all Impositions before any fine, penalty, interest or cost may be added for nonpayment. Tenant shall make such payments directly to the taxing authorities and shall promptly furnish to Landlord copies of official receipts or other satisfactory proof evidencing such direct payments. Tenant’s obligation to pay Impositions shall be absolutely fixed upon the date such Impositions become a lien upon the Property or any part thereof, subject to Section 4.2. Tenant
20 shall also be responsible for all Impositions which, on the date of the Master Lease, is a lien upon the Property or any part thereof. If any Imposition may, at the option of the taxpayer, lawfully be paid in installments, whether or not interest shall accrue on the unpaid balance of such Imposition, Tenant may pay the same, and any accrued interest on the unpaid balance of such Imposition, in installments as the same respectively become due and before any fine, penalty, premium, further interest or cost may be added thereto. Tenant or Tenant’s Parent and/or Lease Guarantor shall prepare and file all tax returns and reports as may be required by Legal Requirements with respect to or relating to the Property and Tenant’s Property. (b) Any refund due from any taxing authority in respect of any Imposition paid by or on behalf of Tenant shall be paid over to or retained by Tenant, net of all of Landlord’s costs, fees and expenses reasonably incurred in connection with obtaining such refund (including all reasonable attorneys’ fees). (c) Landlord and Tenant shall, upon request of the other, provide such data as is maintained by the party to whom the request is made with respect to the Property as may be necessary to prepare any required returns and reports (but excluding any proprietary data or information). If any property covered by this Master Lease is classified as personal property for tax purposes, Tenant shall file all personal property tax returns in such jurisdictions where it must legally so file. Landlord, to the extent it possesses the same, and Tenant, to the extent it possesses the same, shall provide the other party, upon request, with cost and depreciation records necessary for filing returns for any property so classified as personal property. Where Landlord is legally required to file personal property tax returns, Tenant shall be provided with copies of assessment notices indicating a value in excess of the reported value in sufficient time for Tenant to file a protest. (d) Impositions imposed or assessed in respect of the tax-fiscal period during which the Term terminates shall be adjusted and prorated between Landlord and Tenant, whether or not such Imposition is imposed or assessed before or after such termination, and Tenant’s obligation to pay its prorated share thereof in respect of a tax-fiscal period during the Term shall survive such termination. Landlord will not voluntarily enter into agreements that will result in additional Impositions without Tenant’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to customary additional Impositions that other property owners of properties similar to the Property customarily consent to in the ordinary course of business); provided, that Tenant is given reasonable opportunity to participate in the process leading to such agreement. 4.2 Permitted Contests. Tenant, upon not less than ten (10) days’ prior written Notice to Landlord, on its own or in Landlord’s name, at Tenant’s sole cost and expense, may contest, by appropriate legal proceedings conducted in good faith, the amount, validity or application, in whole or in part, of any Imposition, Legal Requirement, or Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim, and upon Tenant’s request Landlord shall reasonably cooperate with Tenant with respect to such contest at no cost or expense to Landlord; provided, however, that (i) in the case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or claim pursuant to any Legal Requirements, the commencement and continuation of such proceedings shall suspend the collection or enforcement thereof from or against Landlord and the Property; (ii) neither the Property, the Rent therefrom nor any part or interest in either thereof would be in any danger of
21 being sold, forfeited, attached or lost pending the outcome of such proceedings; (iii) in the case of a Legal Requirement, neither Landlord nor Tenant would be in any danger of civil or criminal liability for failure to comply therewith pending the outcome of such proceedings; (iv) in the case of a Legal Requirement, Imposition, lien, encumbrance or charge that exceeds one hundred thousand dollars ($100,000), Tenant shall give such reasonable security (in Cash, or by satisfactory letter of credit) as may be reasonably required by Landlord or any title insurer to insure ultimate payment of the same (including all interest, penalties and charges) and to prevent any sale or forfeiture of the Property or the Rent by reason of such nonpayment or noncompliance; (v) in the case of an Insurance Requirement, the coverage required hereunder shall be maintained; (vi) Tenant shall keep Landlord reasonably informed as to the status of and with copies of all material documents in the proceedings; (vii) if such contest shall be finally resolved against Landlord or Tenant, Tenant shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, or comply with the applicable Legal Requirement or Insurance Requirement; and (viii) without the consent of Landlord, Tenant shall not settle any such contest in a manner that is adverse to Landlord or would increase the obligations under the contested item in any material respect. Landlord, at Tenant’s expense, shall execute and deliver to Tenant such authorizations and other documents as may reasonably be required in any such contest, and, if reasonably requested by Tenant or if Landlord so desires, Landlord shall have the right to join as a party therein and/or fully participate therein in conjunction with Tenant. The provisions of this Section shall not be construed to permit Tenant to contest the payment of Rent payable by Tenant to Landlord hereunder. Without limiting any other provision of this Master Lease, Tenant shall indemnify, defend, protect and save Landlord and all Indemnified Parties harmless from and against any and all liability, costs, fees, damages, expenses, penalties, fines and charges of any kind (including reasonable attorneys’ fees, including those incurred in the enforcement of this indemnity) that may be imposed upon Landlord, the Property and/or the Property in connection with any such contest and any loss resulting therefrom. 4.3 General Tax Indemnity. Tenant will indemnify the Indemnified Parties against any fees or taxes (“Taxes”) imposed by the United States or any taxing jurisdiction or authority of or in the United States (or foreign taxing authority, to the extent such foreign jurisdiction imposes such taxes as a result of the location of Tenant or activities of Tenant in such jurisdiction) in connection with the Property or the transactions contemplated herein (unless with respect to a Property which has been terminated); provided that the amount of any indemnification payment in respect of Taxes shall be (i) decreased by any cash Tax benefit actually realized by the Indemnified Parties for the year of the Tax subject to such indemnification, as determined by the Indemnified Parties in their reasonable discretion; and (ii) increased by an amount equal to any cash Taxes attributable to the receipt of such indemnification payment by the Indemnified Parties. This general tax indemnity (“General Tax Indemnity”) will exclude: (i) Taxes based on net income or capital gains, or franchise or doing business taxes of an Indemnified Party imposed by a jurisdiction in which such Indemnified Party is otherwise resident for tax purposes or is subject to taxation as a result of the Property being located in such jurisdiction (but only to the extent of the portion of rent or gains not attributable to the Property); (ii) Taxes on capital or net worth (including minimum and alternative minimum Taxes measured by any items of Tax preference); (iii) Taxes to the extent they would not have been imposed if the Indemnified Party or any of its Affiliates had not engaged in activities or had a presence in the jurisdiction imposing such Taxes that activities or presence are unrelated to the transaction contemplated hereby; (iv) Taxes resulting from a voluntary or involuntary transfer by an Indemnified Party of an interest in all or any part of the Property or an
22 Indemnified Party, other than during an Event of Default; (v) Taxes imposed because the Indemnified Party is not a U.S. Person; (vi) Taxes resulting from the willful misconduct or gross negligence by the Indemnified Party or any of its Affiliates; and (vii) Taxes, with respect to any period after the termination of the Master Lease, with respect to the Property or any portion thereof. The foregoing exclusions will not apply to sales, use, transfer, recording and similar taxes unrelated to Tenant’s Property or any Alterations which Tenant elects to remove or surrender. The General Tax Indemnity will be subject to Tenant’s right to contest Taxes in the manner provided in Section 4.2. Tenant will be entitled to all future refunds of, and tax savings of Landlord (but not any of its direct or indirect beneficial owners) resulting from or attributable to, any event giving rise to payment of a General Tax Indemnity or the making of such payment. 4.4 Utility Charges. Tenant shall directly pay or cause to be paid when due all Utility Charges. Tenant shall also directly pay or cause to be paid all costs and expenses of any kind whatsoever that at any time during the Term hereof, with respect to any Property, may be imposed against Landlord by reason of any of the Encumbrances (except as expressly provided to the contrary herein, including any and all costs and expenses associated with any utility, drainage and parking easements) other than those relating to the Landlord Mortgage or other landlord financing transactions. ARTICLE V NO ABATEMENT 5.1 No Termination, Abatement, Etc. Except as otherwise specifically provided in this Master Lease, Tenant shall remain bound by this Master Lease in accordance with its terms, and shall, under no circumstances, take any action without the written consent of Landlord to modify, surrender or terminate the same, or seek or be entitled to any suspension, abatement, deduction, deferment or reduction of Rent, or to any credit or set-off against, or any deposit in trust or escrow, or to enjoin the payment of, or otherwise obtain equitable relief with respect to, the Rent or any other liabilities or obligations of Tenant hereunder, or any portion thereof. Without limiting the foregoing, except as may be otherwise specifically provided to the contrary in this Master Lease, the respective obligations of Landlord and Tenant shall not be affected by reason of (i) any damage to or destruction of the Property or any portion thereof from whatever cause or any Condemnation of the Property or any portion thereof; (ii) the lawful or unlawful prohibition of, or restriction upon, Tenant’s use of the Property or any portion thereof, or the interference with such use by any Person or by reason of eviction by paramount title; (iii) any claim that Tenant has or might have against Landlord by reason of any default or breach of any warranty or representation by Landlord hereunder (if any) or under any other agreement between Landlord and Tenant or to which Landlord and Tenant are parties, or by statute or law, or otherwise, or any breach of Landlord’s covenants or obligations under this Master Lease; (iv) any bankruptcy, insolvency, reorganization, consolidation, readjustment, liquidation, dissolution, winding up, receivership, conservatorship, resolution or other proceedings affecting Landlord or Tenant or any assignee or transferee of Landlord or Tenant; or (v) for any other cause, whether similar or dissimilar to any of the foregoing, including any pandemic or epidemic, other than a discharge of Tenant from any such obligations as a matter of law (and Tenant hereby irrevocably waives and relinquishes any such right of discharge to the greatest extent now or hereafter permitted by law). Tenant hereby specifically, irrevocably and unconditionally further waives all rights arising from any occurrence whatsoever which may now or hereafter be conferred upon it by law or in equity (a) to modify, surrender or terminate this Master Lease in whole or in part or quit or surrender the Property or any portion thereof, or (b) which may
23 entitle Tenant to any abatement, reduction, suspension, deferment, stay or enjoining of the payment of the Rent or other sums payable by Tenant hereunder except in each case as may be otherwise specifically provided to the contrary in this Master Lease. The obligations of Landlord and Tenant hereunder shall be separate and independent covenants and agreements, and the Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events unless the obligations to pay the same shall be terminated pursuant to the express provisions of this Master Lease or by termination of this Master Lease as to all or any portion of the Property other than by reason of an Event of Default. 5.2 Assumption of Risk of Loss. Without limiting any other provision of this Master Lease, Tenant intends that the risk of loss or damage to the Property, including Tenant's personal property, be borne by responsible property insurance carriers and Tenant hereby agrees to look solely to, and to seek recovery only from, its respective property insurance carriers, in the event of a loss of a type described above. For this purpose, any applicable deductible shall be treated as though it were recoverable under such policies. Notwithstanding anything herein to the contrary, however, in no event shall any loss or damage to the Property, including Tenant's personal property, entitle Tenant to any abatement of Base Rent or Additional Charges or any right to modify, amend, suspend or terminate this Master Lease. Notwithstanding the foregoing but subject in all cases to Section 5.1, Tenant shall not be responsible for any negligent or willful acts of Landlord. ARTICLE VI OWNERSHIP OF PROPERTY 6.1 Ownership of the Property. (a) Landlord and Tenant acknowledge and agree that they have executed and delivered this Master Lease with the understanding that (i) the Property is the property of Landlord; (ii) Tenant has only the right to the possession and use of the Property upon the terms and conditions of this Master Lease; (iii) this Master Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, or any other agreement or arrangement other than a “true lease,” and the economic realities of this Master Lease are those of a “true lease”; (iv) the business relationship created by this Master Lease and any related documents is, and at all times shall remain, that of landlord and tenant, and shall not create or constitute the relationship of borrower and lender; (v) this Master Lease has been entered into by each party in reliance upon the mutual covenants, conditions and agreements contained herein; and (vi) none of the covenants, conditions or agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership between Landlord and Tenant, to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, or to make Landlord in any way responsible for the debts, obligations or losses of Tenant. (b) Tenant represents and warrants that Tenant has independently verified that the transaction contemplated by this Master Lease complies with all regulations applicable to the Tenant’s business, including without limitation any regulations applicable to the sale of the Property by Tenant to Landlord pursuant to that certain Agreement for Purchase and Sale of Property (the “Sale Agreement”) and subsequent leaseback of the Property by Tenant as contemplated herein (collectively, the “Sale-Leaseback Regulations”). Tenant has obtained all required regulatory approvals as may be necessary or appropriate in connection with the transaction contemplated by the Sale Agreement and this Master Lease, and Tenant is entering the
24 transaction contemplated by the Sale Agreement and this Master Lease solely relying on, and after full review of, their own due diligence and not on the basis of any statement made by Landlord or any Indemnified Parties. Neither Landlord nor any Indemnified Parties has made any representation or warranty to Tenant as it relates to the Sale-Leaseback Regulations or the compliance of this transaction with any of the Sale-Leaseback Regulations. To the fullest extent permitted by applicable law, Tenant shall indemnify and hold harmless Landlord and the Indemnified Parties from and against any and all claims, losses, damages, expenses and other liabilities arising with respect to the Sale-Leaseback Regulations (collectively referred to as “Regulatory Claims” and individually as a “Regulatory Claim”), including, as incurred, all attorneys’ fees that Tenant, Tenant’s Parent or any Affiliates thereof may incur that arise out of or in connection with the Tenant’s breach of any representation, warranty or other obligation in this Section 6.1(b). Landlord shall promptly notify Tenant of any Regulatory Claim filed against Landlord or any Indemnified Party, and Tenant shall defend Landlord and the Indemnified Parties, at the request of Landlord or any one or more of the Indemnified Parties, with counsel reasonably satisfactory to Landlord or the applicable Indemnified Parties making the request. The terms of this Section 6.1(b) shall survive the expiration or earlier termination of this Lease. 6.2 Tenant’s Property. Tenant shall, during the entire Term, own (or lease, subject to this Master Lease) and maintain (or cause its Subsidiaries to own (or lease, subject to this Master Lease) and maintain) on the Property adequate and sufficient Tenant’s Property, and shall maintain (or cause its Subsidiaries to maintain) all of such Tenant’s Property in good order, condition and repair, in all cases as Tenant deems reasonably necessary and appropriate in the good faith exercise of its reasonable commercial judgment for its operations. Tenant shall remove all of Tenant’s Property from the Property at the end of the Term (including all telecommunications cabling and any rooftop antennas or communications installations), except to the extent that Tenant has transferred ownership of such Tenant’s Property to an Unrelated Successor Tenant or Landlord. Tenant shall restore any and all damage from such removal. Without limiting the foregoing or any other rights or remedies of Landlord, any Tenant’s Property left on the Property at the end of the Term whose ownership was not transferred to an Unrelated Successor Tenant or Landlord shall be deemed abandoned by Tenant and shall become the property of Landlord and Landlord may thereafter cause such property to be removed from the Property. The reasonable cost of removing and disposing of such property and repairing any damage to any of the Property caused by such removal shall be borne by Tenant. For the avoidance of doubt, Tenant’s Property will not constitute Alterations or Leased Improvements. ARTICLE VII CONDITION AND USE OF PROPERTY 7.1 Condition of the Property. Tenant acknowledges receipt and delivery of complete and exclusive possession of the Property, subject to the Permitted Encumbrances. Tenant acknowledges and confirms that for a substantial period prior to and up to and including the execution of this Master Lease, Tenant’s Parent and/or its Subsidiaries have been in continuous ownership and possession of the Property, Tenant is fully familiar therewith, and has examined and otherwise has knowledge of the condition of the Property prior to the execution and delivery of this Master Lease and has found the same to be in good order and repair and free from Hazardous Substances not in compliance with Legal Requirements and satisfactory for its purposes hereunder. Regardless, however, of any knowledge, examination or inspection made by Tenant and whether or not any patent or latent defect or condition was revealed or discovered thereby, Tenant is leasing
25 the Property “as is,” “where is” and “with all faults” in its present condition. Tenant hereby irrevocably, unconditionally and absolutely waives and relinquishes any claim or action against Landlord whatsoever in respect of the condition of the Property, including any patent or latent defects or adverse conditions not discovered or discoverable or otherwise known or unknown by Tenant as of the Commencement Date. LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN FACT OR IN LAW, IN RESPECT OF THE PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, IT BEING AGREED THAT ALL SUCH RISKS, KNOWN AND UNKNOWN, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT, INCLUDING ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS. THE FOREGOING SHALL NOT LIMIT ANY EXPRESS COVENANTS OR OBLIGATIONS OF LANDLORD CONTAINED ELSEWHERE IN THIS MASTER LEASE. 7.2 Use of the Property; Permitted, Prohibited and Restricted Uses. (a) Subject to the provisions of Sections 7.3 and 9.3, Tenant shall use, or cause to be used, the Property primarily for the operation of a retail bank branch and related ancillary uses in accordance with all Legal Requirements, and further subject to all use restrictions and/or exclusives which affect the Property contained in any Encumbrances. It is agreed that the foregoing use and restriction on use is a material inducement to Landlord entering into this Master Lease and that Landlord would not enter into this Master Lease without this inducement. To the extent there are costs or expenses for or in connection with complying with Legal Requirements resulting from or associated with the occupancy or operation of the Property, including fire detection and suppression systems, or environmental equipment or any environmental compliance and remediation, all such costs and expenses shall be borne solely by Tenant. Tenant, at its sole expense, shall keep the Property clean and tidy at all times, free of debris, trash, rubbish, leaves, ice and snow, and in accordance with all Legal Requirements and Insurance Requirements, and shall immediately cause any Hazardous Substances emanating from, in, under or onto the Property to be promptly reported, cleaned and removed by licensed contractors and deposited in licensed facilities in accordance with all applicable Environmental Laws. Tenant shall use the Property and all parking and common areas only as provided by and in accordance with all Encumbrances, subject to Landlord’s reservation of rights herein. (b) Tenant shall not commit, or suffer to be committed, any waste on the Property or cause or permit any nuisance thereon. (c) Tenant shall neither suffer nor permit the Property or any portion thereof to be used, or otherwise act or fail to act, in such a manner as (i) might reasonably tend to impair Landlord’s title thereto or to any portion thereof, (ii) may make possible a claim of adverse use or possession, or an implied dedication of the Property or any portion thereof, or (iii) may subject the Property or this Master Lease to any Encumbrances, other than Permitted Encumbrances.
26 7.3 Operating Covenant. Except in instances of casualty or condemnation during the period reasonably required for restoration, or for consecutive periods not to exceed one hundred twenty (120) days in connection with Alterations and other repairs subject to extension for Force Majeure, Tenant covenants and agrees to and shall continuously operate the retail business of each Bank Branch (i.e., deposit-gathering and similar retail banking activities, including in-person, for retail banking customers) subject to and in accordance with the use provisions of Section 7.2 during such hours of operation as are generally consistent with those of similar bank branches, subject to any additional hours as Tenant may determine in its discretion; provided, however, that in no event shall Tenant be required to (but may in its discretion) operate during any hours which are longer or more restrictive than those as currently operated by Tenant at each individual Property as of the Commencement Date or as determined by Tenant at any individual Property from time to time with respect to holiday schedules. ARTICLE VIII ALTERATIONS 8.1 Alteration and Additions. (a) Tenant, at its own sole cost and expense, shall make all alterations, renovations, modifications, additions or improvements to the improvements located at any Property (“Alterations”), all as may be required by Legal Requirements or Insurance Requirements, or any Encumbrances, subject to customary contest provisions, or as required to comply with its repair, maintenance or other obligations in this Master Lease, and Landlord’s consent shall not be required to make any such Alterations that are not Structural Alterations or the cost of which does not exceed the Threshold Amount, in the aggregate, in any calendar year; provided, that Tenant shall give Landlord prior Notice (except in an emergency) of all such Alterations, together with copies of all material plans, specifications and permits therefor (it being agreed that, notwithstanding Article XIX, any such Notice of Alterations may be sent to Landlord by email transmission only, without the requirement of a copy of such Notice also being sent by one of the other methods set forth in Article XIX). (b) Upon at least thirty (30) days’ prior written notice to Landlord, Tenant shall have the right to make any Alteration(s) to Property that are Structural Alterations and/or the cost of which exceeds the Threshold Amount, in the aggregate, in any calendar year; provided, that, (i) no Event of Default has occurred and is then continuing, (ii) Tenant complies with clause (c) of this Section 8.1, and (iii) prior to making any such Alteration(s), Tenant shall provide Landlord with all material plans, specifications, permits, estimated budget and proposed schedule of construction with respect thereto and Landlord shall have consented to such Alterations in writing, which consent shall not be unreasonably withheld, conditioned or delayed. (c) In connection with any Alteration: (i) the fair market value of the Property shall not be lessened after the completion of any such Alteration, or its structural integrity impaired; (ii) all such Alterations shall be performed in a good and workmanlike manner, and shall be expeditiously completed in compliance with all Legal Requirements and Insurance Requirements; (iii) no such Alteration shall change the permitted use of the Property, (iv) Tenant shall promptly pay all costs and expenses of any such Alteration and shall discharge all Liens filed against any of the Property arising out of the same; (v) Tenant shall procure and pay for all permits and licenses required in connection with any such Alteration; (vi) subject to Tenant’s contest rights set forth in Section 4.2, Tenant shall not incur any debt with respect to such Alteration that results in any mortgage or other encumbrance on the Property or any part thereof, and (vii) in the case of
27 any Alteration the estimated cost of which in any one instance exceeds the Threshold Amount, at Landlord’s reasonable request, such Alterations shall be made under the supervision of an architect or engineer and in accordance with plans and specifications which shall be submitted to Landlord prior to the commencement of the Alterations. 8.2 Title to Alterations. Tenant will retain title to all Alterations; provided, however at the expiration or sooner termination of this Master Lease, all Alterations shall become the property of Landlord, without any further act. ARTICLE IX TRANSFER 9.1 Transfer; Subletting and Assignment. Except as otherwise expressly provided herein, Tenant shall not, without Landlord’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) Transfer this Master Lease or the Property, or any rights of Tenant or any interest of Tenant therein, including any subletting of part or all or any part of the Property, or engage the services of any Person (other than an Affiliate of Tenant) for the management or operation of any Property (as to which management services Landlord’s consent shall not be unreasonably withheld, conditioned or delayed). Any Transfer in violation of this Article is ipso facto null and void and of no force or effect. Tenant acknowledges and agrees that the foregoing restrictions on Tenant’s rights of Transfer are consistent with and integral to the protection and implementation of Landlord’s rights hereunder and that the Rent and the other terms and conditions of this Master Lease have been expressly negotiated based upon and taking into account the foregoing restrictions on Tenant’s rights of Transfer, and that Landlord is relying upon the expertise of Tenant in the operation of each Bank Branch and that Landlord entered into this Master Lease with the expectation that Tenant would remain in and operate each Bank Branch during the entire Term (except for such express rights of termination by Tenant, or recapture or buy-out by Landlord, or limited rights of Tenant, as set forth herein). 9.2 Subletting. Notwithstanding the foregoing, Tenant may, without Landlord’s prior written consent, sublease, license or otherwise permit the use or occupancy of any space on or within any Property by an Affiliate (each, a “Sublease,” and collectively, the “Subleases”); provided that if such use is documented in a written Sublease or agreement, Tenant shall give Notice to Landlord of each new Sublease executed after the Commencement Date within thirty (30) days of the execution thereof and prior to the commencement of occupancy by the sublessee. 9.3 Permitted Assignments. Notwithstanding the foregoing, Tenant may, without Landlord’s prior written consent assign or transfer all of its rights and obligations under the Master Lease (either directly or indirectly, by operation of law or through a merger or other corporate transaction) to any other solvent corporation, partnership, limited liability company or other legal entity that (1) acquires all or substantially all of the assets of Tenant, (2) is the surviving entity of a merger with Tenant, or (3) results from a consolidation, reorganization or recapitalization of Tenant with a solvent corporation, partnership or other legal entity; provided, that in each case the successor tenant or successor Tenant (if not the named Tenant herein, the “Unrelated Successor Tenant”) (A) has a net worth of not less than the net worth of Tenant as of the Commencement Date, and (B) assumes all of such Tenant’s obligations under the Master Lease (provided, that, notwithstanding any such assumption, Tenant shall not be released from, and shall remain liable for, all obligations of Tenant under this Master Lease as provided in Section 9.16). In the case of any such assignment,
28 (x) each Lease Guarantor shall reaffirm the Lease Guaranty (if it is not the successor to Tenant under the Master Lease) in a written instrument for the express benefit of Landlord in form and content reasonably satisfactory to Landlord and Landlord shall receive a fully executed copy thereof, and (y) the use of the Property, except as expressly set forth above, shall continue to comply with the requirements of this Master Lease. 9.4 Required Assignment and Subletting Provisions. Any permitted assignment and/or Sublease entered into after the Commencement Date must provide in the assignment or Sublease document that: (a) in the case of a Sublease, it shall be subject and subordinate to all of the terms and conditions of this Master Lease, including any Landlord Mortgage Documents; (b) the use of the applicable Bank Branch (or portion thereof) shall not conflict with any Legal Requirement or any other provision of this Master Lease; (c) except as otherwise provided herein, no subtenant or assignee shall be permitted to further sublet all or any part of the applicable Property or assign this Master Lease or its Sublease or otherwise Transfer any interest in any of the foregoing; (d) Tenant shall insert in each permitted Sublease entered into after the Commencement Date provisions to the effect (and shall advise all parties thereto in writing with respect to all permitted Subleases entered into prior to the Commencement Date) that (A) in the event the Master Lease shall expire or otherwise terminate for any reason with respect to the Property of which the Sublease is a part before the expiration of such Sublease, the Sublease shall automatically terminate without further notice or action of any kind and the subtenant under the Sublease shall immediately surrender possession of the premises under the Sublease to Landlord or as directed by Landlord, and (B) if the subtenant receives a written notice from Landlord or Landlord’s assignees, if any, stating that an Event of Default has occurred, so long as the Master Lease is not terminated with respect to the Property of which the Sublease premises is a part, the subtenant shall thereafter attorn to the applicable party and be obligated to and shall pay all rentals and all other sums and charges accruing under said Sublease directly to the party giving such notice, or as such party may direct, without any action of or any liability to Tenant. 9.5 Costs. Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred in conjunction with the processing and documentation of any assignment or subletting, whether or not the same is actually consummated in an amount not to exceed $5,000.00. 9.6 No Release of Tenant’s Obligations. No assignment or subletting shall relieve Tenant or any immediate and remote successor in interest of Tenant (by assignment or otherwise) of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder, except as expressly provided herein. The liability of Tenant and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Master Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, excused, released or impaired by any (i) stipulation which extends the time within which an obligation under this Master Lease is to be performed, (ii) waiver of the
29 performance of an obligation required under this Master Lease that is not entered into for the benefit of Tenant or such successor, or (iii) failure to enforce any of the obligations set forth in this Master Lease. ARTICLE X MAINTENANCE 10.1 Maintenance and Repair; Trade Fixtures. (a) During the Term, Tenant, at its sole cost and expense, shall maintain, repair and, as necessary, replace any element of the Property, Tenant’s Property, and all private roadways, sidewalks and curbs appurtenant to the Property which are under Tenant’s exclusive control, or other areas for which the owner of the Property is required to perform such maintenance and repair pursuant to any Encumbrance, in good condition and repair (ordinary wear and tear excepted) with the standard of care and quality taking into account the age of the Property whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements, or the age of the Property or Tenant’s Property, or otherwise, and, with reasonable promptness, make all necessary and appropriate repairs thereto of every kind and nature, including those necessary to ensure continuing compliance with all Legal Requirements, and Insurance Requirements, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, or arising by reason of a condition existing at or prior to the Commencement Date; Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (x) materially impair the value or the usefulness of the Property or any part thereof, (y) create (or permit to continue) any dangerous condition or (z) create (or permit to continue) any condition which might reasonably be expected to involve any imminent loss, damage or injury to any person or property. Landlord shall not under any circumstances (except if caused by Landlord’s gross negligence or intentional misconduct) be required to (i) build or rebuild any improvements on the Property; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Property, whether ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Property in any way. Tenant hereby unconditionally and irrevocably waives, to the fullest extent now or hereafter permitted by law, the right to make any repairs or perform any maintenance at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease, or hereafter enacted. (b) Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Property in the condition in which such Property was originally received from Landlord, except as repaired, rebuilt, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear, and further subject to the provisions with respect to removal and restoration of Tenant’s Property and remediation of all environmental conditions. (c) Any holding over by Tenant of the Property after the expiration or earlier termination of the Term of this Lease or any extensions thereof, with the consent of Landlord, shall operate and be construed as tenancy from month to month only, at one hundred fifty percent (150%) of the Base Rent reserved herein and upon the same terms and conditions as contained in this Lease. In addition, Tenant shall be liable to Landlord for and shall indemnify Landlord from and against all Claims that Landlord suffers as a result of such holding over, including without limitation, any claims made by any succeeding occupant or purchaser founded on such delay. Notwithstanding the foregoing, any holding over without Landlord’s consent shall entitle
30 Landlord, in addition to collecting Base Rent at the rate set forth in this subsection (c), to exercise all rights and remedies provided by law or in equity, including the remedies of Section 13.2 below. 10.2 Landlord’s Warranties and Guaranties. In connection with Tenant’s repair and maintenance obligations under this Master Lease, Landlord agrees that Tenant shall have the benefit of, and Landlord shall use all commercially reasonable efforts to enforce (without any obligation of Landlord to incur legal expenses or institute litigation, unless Tenant pays for all costs and expenses thereof, and holds harmless Landlord therefrom) all applicable warranties and guaranties assigned to or otherwise held by Landlord during the Term; provided, however, that Tenant’s repair and maintenance obligations shall not be delayed, suspended or otherwise affected by the existence or nonexistence, or any failure, refusal, delay in the performance, adequacy or payment or nonpayment, of any such warranty or guaranty (if any). 10.3 Immediate Repairs. In addition to (and not in limitation of) Tenant’s other maintenance and repair obligations set forth herein, Tenant, at its sole cost and expense, shall, within one (1) year following the Commencement Date, perform the repairs of and replacements to the Property identified on Schedule 10.3. All such repairs and replacements will be performed and completed in a good and workmanlike manner, and in compliance with all Legal Requirements and requirements of this Lease. ARTICLE XI INSURANCE 11.1 General Insurance Requirements. During the Term, Tenant shall at all times keep the Property, and all property located therein or thereon, including the Leased Improvements, Fixtures and Tenant’s Property, insured with the kinds and amounts of insurance described below with respect to each Property: (a) Property Insurance covering loss of or damage to the Leased Improvements, Fixtures and Tenant’s Property under an ISO special cause of loss form or broader property insurance policy, in an amount not less than one hundred percent (100%) of replacement cost as calculated by an appraisal or insurance industry recognized replacement cost calculation (e.g., Marshall and Swift), (which shall include coverage for the perils of (A) windstorm, (B) flood (if the Property is located within a Special Flood Hazard Area as determined by FEMA with flood zone ratings of A or V or if otherwise deemed necessary by Landlord or any Landlord Mortgagee, with Tenant being required to obtain a flood plain determination if required by Landlord or any Landlord Mortgagee; provided, that Landlord shall have the right to require a flood sub-limit even if the Property is not located in a Special Flood Hazard Area), (C) earthquake (if the Property has a “Scenario Expected Loss” greater than twenty percent (20%) with such coverages and deductibles as shall be reasonably acceptable to Landlord and Landlord’s lender) and shall be issued without exclusion for terrorism. Such insurance shall also include ordinance and law coverage (hazards A, B and C, with limits for A of not less than replacement cost and limits for B and C not less than ten percent (10%) each or twenty percent (20%) shared limit in the aggregate). Any coinsurance clause shall be removed by an agreed amount endorsement so as to prevent Landlord or Tenant from becoming a co-insurer under the applicable policies. Except as otherwise expressly set forth herein, such insurance policies may contain reasonable deductible amounts, in amounts not greater than five percent (5%) of insured values for peril of earthquake, five percent
31 (5%) of insured values for peril of named windstorm if premises is within Tier 1 named windstorm area, and twenty-five thousand dollars ($25,000) for all other perils; (b) Commercial general liability insurance against claims for bodily injury, death or property damage occurring on, in or about the Property, which insurance shall (A) be written on an “Occurrence Basis”, and shall provide minimum protection with a combined single limit in an amount not less than ten million and dollars ($10,000,000), and (B) include premises and operations liability coverage, products and completed operations liability coverage, and blanket contractual liability coverage. The use of a combination of primary and excess liability insurance policies shall be permitted in order to maintain the required limits of liability insurance. Excess/ Umbrella policies shall be excess to the primary commercial general liability, employers’ liability, and automobile liability coverage as applicable, and shall be written as follow form or alternatively with a form that provides coverage that is at least as broad as the primary insurance policies. In addition, Tenant shall maintain auto liability insurance in an amount not less than one million dollars ($1,000,000); (c) Workers’ compensation insurance as required by applicable Legal Requirements covering all persons employed by Tenant on the Property in connection with any work done on or about any of the Property for which claims for death or bodily injury could be asserted against Landlord, Tenant or the Property; (d) Boiler and machinery coverage on a comprehensive form in an amount not less than the actual replacement cost of the Leased Improvements, Fixtures and Tenant’s Property (excluding footings and foundations and other parts of the Leased Improvements which are not insurable), or an amount reasonably acceptable to Landlord and Landlord Mortgagee. (e) Business interruption insurance and loss of rental income for six (6) months (1) covering all risks required to be covered by the insurance provided for in subparagraph (a) above for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence, (2) containing an extended period of indemnity coverage extension which provides that after the physical loss to the Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss or the expiration of twelve (12) months, whichever occurs first, and (3) endorsed to include rental value coverage form with Landlord as additional insured and Landlord Mortgagee, if any, as loss payee. (f) Whenever Tenant shall be engaged in making any Alteration, repairs or construction work of any kind (collectively, “Work”), if not covered by the insurance maintained pursuant to Section 11.1(a) above, completed value builder’s risk insurance, construction general liability coverage in an amount not less than Three Million Dollars ($3,000,000) per occurrence, and worker’s compensation insurance or other adequate insurance coverage covering all persons employed or contracted in connection with the Work, whether by Tenant, its contractors or subcontractors and with respect to whom death or bodily injury claims could be asserted against Landlord. Landlord and Landlord Mortgagee shall be included as additional insureds with respect to the insurance maintained pursuant to this subsection (f), with a waiver of subrogation in favor of each of them.
32 (g) Such additional and/or other insurance with respect to the Property and in such amounts as are reasonably requested by Landlord or a Landlord Mortgagee, if any, and which are consistent with the coverages and amounts typically maintained by prudent owners of commercial properties similar to the Property in the same geographical area. 11.2 Policy Requirements The insurance required by Section 11.1 shall be written by companies with an A.M. Best Insurance Reports rating of not less than “A-” and a financial size category of at least “IX”, and all such companies shall be authorized to do an insurance business in the State, or otherwise agreed to by Landlord and Landlord Mortgagee, if any. All policies, other than liability insurance policies, shall not contain any co-insurance clause or such clause shall be removed by an “agreed amount” endorsement. The general liability insurance shall name Landlord, Tenant, and, if a Landlord Mortgage or property manager is then in effect, the Landlord Mortgagee and property manager (as the case may be) as additional insured parties, as their respective interests may appear; the rent loss coverage shall name Landlord Mortgagee, or if no Landlord Mortgage on the Property is then in effect the Landlord, as loss payee. The property insurance shall name Landlord Mortgagee, or if no Landlord Mortgage on the Property is then in effect the Landlord, as loss payee. If said insurance or any part thereof shall expire, be withdrawn, become void by breach of any condition thereof by Tenant or become void or unsafe by reason of the failure or impairment of the capital of any insurer, Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord and, if a Landlord Mortgage is then in place, the Landlord Mortgagee. 11.3 Waiver of Subrogation Each insurance policy referred to in clauses (a), (d), (e) and (f) of Section 11.1, shall contain standard non-contributory mortgagee clauses in favor of each Landlord Mortgagee. Each of the policies required by Section 11.1 shall state that if at any time the policies are to be cancelled, or their coverage is to be reduced (by any party including the insured), the insurer will endeavor to mail thirty (30) days’ (ten (10) days’ in the event of nonpayment of the premium) written notice to the additional insureds and/or loss payee named in such policies. Each policy shall also provide that any losses otherwise payable thereunder shall be payable notwithstanding (i) any act, omission or neglect of Landlord, Tenant or any other Person which might, absent such provision, result in a forfeiture of all or a part of such insurance payment, or (ii) the occupation or use of any of the Property for purposes more hazardous than permitted by the provisions of such policy. Tenant hereby waives any and every claim for recovery from the Landlord Mortgagee and Landlord, and Landlord hereby waives any and every claim for recovery from Tenant, for any and all loss or damage covered by any of the insurance policies to be maintained under this Master Lease to the extent that such loss or damage is recovered by Tenant, Landlord Mortgagee or Landlord, respectively, under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such recovery, by subrogation (or otherwise), to an insurance company (or other person), Tenant (or other appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver. 11.4 Payment of Premiums. Tenant shall pay as they become due all premiums for the insurance required by this Article XI, shall renew or replace each policy, and shall deliver to
33 Landlord and Landlord Mortgagee a certificate or other evidence (on an ACORD 28 (2003/10) form, in the case of property insurance, and otherwise reasonably satisfactory to Landlord) of the existing policy and such renewal or replacement policy at least two Business Days prior to the date that each such insurance policy will expire. In the event of Tenant’s failure to comply with any of the foregoing requirements of this Article XI within three (3) Business Days of the giving of written notice by Landlord to Tenant, Landlord shall be entitled to procure such insurance. Any sums expended by Landlord in procuring such insurance shall be Additional Rent and shall be repaid by Tenant, together with interest thereon at the Overdue Rate, from the time of payment by Landlord until fully paid by Tenant, immediately upon written demand therefor by Landlord. 11.5 Blanket Policies. Anything in this Article XI to the contrary notwithstanding, any insurance which Tenant is required to obtain pursuant to Section 11.1 may be carried under a “blanket” policy or policies covering other properties or liabilities of Tenant, provided that such “blanket” policy or policies otherwise comply with the provisions of this Article XI. In the event any such insurance is carried under a blanket policy, Tenant shall deliver to Landlord and Landlord Mortgagee evidence of the issuance and effectiveness of the policy, the amount and character of the coverage with respect to the Property and the presence in the policy of provisions of the character required in the above sections of this Article XI. ARTICLE XII CASUALTY AND CONDEMNATION 12.1 Casualty; Property Insurance Proceeds. All proceeds (except business interruption insurance proceeds not allocated to rent expenses and insurance proceeds paid by policies covering Tenant’s Property) payable by reason of any property loss, damage, or destruction of or to the Property by fire or other casualty, or any portion thereof, under any property policy of insurance required to be carried by Tenant hereunder, shall be paid to Landlord, to be held in trust for purpose of repair and restoration of the Property, and made available to Tenant upon request in accordance with this Section 12.1; provided, that, so long as no Event of Default has occurred and is continuing, if such proceeds payable with respect to any casualty are, in the aggregate, Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) or less, then such proceeds shall be paid to Tenant. All proceeds paid to Tenant from any such insurance shall be used only for the repair of any damage to the Property. Provided that no Event of Default is then continuing, any excess proceeds of insurance remaining after the completion of the restoration or reconstruction of the Property to substantially the same condition as existed immediately before the damage or destruction, to Landlord’s reasonable satisfaction, shall be paid to Tenant. Tenant shall be responsible for all insurance deductibles at its own cost and expense. Subject to the terms of this Article, Landlord shall make available to Tenant the insurance proceeds paid to Landlord for such repair and rebuilding as it progresses. Payments shall be made against certification of the architect approved by Landlord responsible for the supervision of the repairs and rebuilding that the work had been performed substantially in conformance with the approved plans and specifications therefor and the value of the work in place is equal to not less than one hundred ten percent (110%) of the aggregate amount advanced by Landlord for the payment of such work. Prior to commencing the repairing and rebuilding, Tenant shall deliver to Landlord for Landlord’s approval a schedule setting forth the estimated monthly draws for such work. Landlord shall act in good faith and with due diligence to promptly review and approve any items relating to the repair and restoration of the Property requiring Landlord’s approval hereunder, and to promptly thereafter disburse any applicable insurance proceeds to Tenant.
34 12.2 Tenant’s Obligations Following Casualty. If any Property is damaged, whether or not from a risk covered by insurance, (i) Tenant shall promptly restore such Property to substantially the same condition as existed immediately before the damage or destruction and with materials and workmanship of like kind and quality and to Landlord’s reasonable satisfaction and (ii) such damage shall not terminate this Master Lease; provided, however, that in the case of a partial destruction which occurs during the last 12 months of the Initial Term or the Renewal Term (if exercised) and the estimated cost of such restoration with respect thereto exceeds fifty percent (50%) of the replacement cost of the Improvements (“12-Month Destruction”), then in either such event Tenant shall have the right to elect not to restore the Property, upon Notice to Landlord, and subject to and on the terms and conditions, as hereinafter provided. (a) If Tenant restores the affected Property and the cost of the repair or restoration exceeds or appears is likely to exceed the amount of proceeds received from the insurance required to be carried hereunder, or if there are no insurance proceeds promptly after becoming aware of such facts (or at any time) upon demand by Landlord, Tenant shall promptly provide Landlord with evidence reasonably acceptable to Landlord that Tenant has available to it any excess amounts needed to restore such Property (without any adverse effect on Tenant’s ability to pay all Rent or to perform all of its other obligations with this Master Lease). All such excess amounts necessary to restore such Property shall be paid by Tenant. (b) If there is a 12-Month Destruction and Tenant elects not to restore by Notice to Landlord within sixty (60) days of the 12-Month Destruction, Tenant shall not be required to restore but shall be obligated to make payment to Landlord of the amounts set forth in Section 12.6. (c) If Tenant is not required to or permitted to, and elects not to repair and restore the Property, all insurance proceeds shall be paid to and retained by Landlord free and clear of any claim by or through Tenant, subject to the provisions of any Landlord Mortgage. 12.3 No Abatement of Rent. In the event of any casualty or destruction, this Master Lease shall remain in full force and effect, and Tenant’s obligation to pay the Rent and all other charges required by this Master Lease shall remain unabated during the period required for adjusting insurance, satisfying Legal Requirements, repair and restoration, subject to Tenant’s foregoing right to elect not to restore and the termination of the Master Lease with respect to the affected Property in the event of 12-Month Destruction, and Landlord’s right of termination if Landlord Mortgagee applies proceeds of insurance as provided below; provided, that in either of which events of termination, as of the date Tenant vacates the affected Property (and surrenders the same) in accordance with this Master Lease, the Base Rent due under this Master Lease shall be reduced by an amount equal to the amount of the insurance proceeds actually received by Landlord as a result of such 12-Month Destructions, multiplied by eight and seventy-five hundredths percent (8.75%); provided, further, that the foregoing is subject to the provisions of Section 12.6.
35 12.4 Waiver. Tenant irrevocably waives any statutory rights of termination which may arise by reason of any damage or destruction of the Property but such waiver shall not affect any contractual rights granted to Tenant under this Article XII. 12.5 Intentionally omitted. 12.6 Tenant’s Right to Terminate Upon Damage Near End of Term. In the event of a 12-Month Destruction in which Tenant does not elect to rebuild as provided herein, the Master Lease will terminate solely with respect to such Property, and Tenant shall tender all of the insurance proceeds payable in connection with the casualty (other than Tenant’s business interruption insurance proceeds), and Tenant shall pay the amount of any applicable deductible with respect to such casualty insurance, to Landlord. Except for any Base Rent adjustment described in Section 12.3, such termination shall not otherwise affect any other terms or conditions of this Master Lease with respect to the remainder of the Property, all of which shall remain in full force and effect, subject to all obligations of Tenant which survive termination of the Master Lease. 12.7 Condemnation. (a) Tenant and Landlord shall promptly give the other written notice upon knowledge of the actual or threatened commencement of any condemnation or eminent domain proceeding or other governmental taking affecting any Property (a “Condemnation”), and, to the extent not otherwise received, shall deliver to the other copies of any and all papers served in connection with such Condemnation. (b) Subject to the further provisions hereof, following the occurrence of a Condemnation, Tenant, regardless of whether sufficient Condemnation awards are available for restoration, shall, in a reasonably prompt manner, proceed to restore the Property to the extent practicable to be of substantially the same character and quality as prior to the Condemnation, in compliance with all applicable material Legal Requirements. Tenant shall not be obligated to restore or replace Tenant’s Property or any Alterations made by Tenant unless the same are required to comply with Legal Requirements. (c) This Master Lease shall terminate with respect to the affected Property upon the Condemnation of all or substantially all of such Property, or which renders the unaffected portion of the Property Unsuitable for its Intended Use (“Total Condemnation”); provided, that in the event of a temporary taking (which shall not exceed six (6) consecutive months), the Master Lease shall continue in full force and effect and Tenant shall receive the entire award therefor, subject to any Landlord Mortgage. A Condemnation of substantially all of a Property shall be deemed to have occurred if (i) fifty percent (50%) or more of the square footage of such Property shall have been subject to a Condemnation, or (ii) there shall have been a loss of access or egress, parking capacity or any other appurtenance necessary for the operation of such Property substantially in the manner in which it had previously been operated and there is no reasonably equivalent replacement therefor. In the event of a termination of this Master Lease pursuant to this Section 12.7(c), as of the date Tenant vacates the affected Property (and surrenders the same) in accordance with this Master Lease, Tenant shall have no further obligation to pay any Base Rent or Additional Charges in respect of the affected Property for the period after such termination and surrender, and the Base Rent due under this Master Lease shall be reduced by an amount equal to the amount of the condemnation proceeds actually received by Landlord as a result of such Total Condemnation, multiplied by eight and seventy-five hundredths percent (8.75%).
36 12.8 Condemnation Proceeds Paid to Landlord Mortgagee. Notwithstanding anything herein to the contrary, if any Landlord Mortgagee is entitled to any condemnation proceeds, or any portion thereof, under the terms of any Landlord Mortgage, such proceeds shall be applied, held and/or disbursed in accordance with the terms of the Landlord Mortgage. If the Landlord Mortgagee elects, or is required under the related financing document to apply the condemnation proceeds to the Indebtedness secured by the Landlord Mortgagee, then Tenant shall not be obligated to repair or restore the Property and if Tenant does not elect to restore the Property with its own funds by Notice to Landlord within sixty (60) days of such application of proceeds by Landlord Mortgagee, then, except in the case of a Total Condemnation, Landlord shall elect upon Notice to Tenant within ninety (90) days of application of such proceeds by Landlord Mortgagee Indebtedness either to (a) fund the amount of Condemnation proceeds applied by Landlord Mortgagee within six (6) months of such application, in which case Tenant shall be obligated to restore the Property upon receipt of such proceeds (regardless of the sufficiency thereof for the required restoration), which may be disbursed by Landlord in accordance with the same or similar procedures as applied by Landlord Mortgagee, or (b) terminate this Master Lease as to the Property effective as of a date ninety (90) days after the date of such Notice (with any failure of Landlord to send a Notice of such election to Tenant within the time period specified above being deemed an election by Landlord to terminate this Master Lease as to the Property pursuant to this clause (b)). (a) The Base Rent and Additional Charges in respect of any Property affected by a Condemnation shall not abate by reason thereof, except as a result of and as of the date of a termination of this Master Lease with respect to an affected Property; provided, however, that from and after the date of such termination the Base Rent with respect to the remainder of the Property shall be adjusted as described in Section 12.7(c). (b) Unless Tenant is required or elects to perform any restoration utilizing the Award, Landlord shall be entitled to the entire Award in any Condemnation, subject to Tenant’s Award, and Tenant shall not have any interest in or right to claim any, interest or award for or measured by the value of this Master Lease or Tenant’s leasehold estate hereunder, including any unexpired Term (including the Renewal Term) hereof. Landlord shall have the exclusive power to collect, receive and retain any Award proceeds and to make any compromise or settlement in connection with such Condemnation, subject to Tenant’s Award, further subject to Landlord’s making available any Award for Tenant’s restoration obligations hereunder. Nothing herein shall be deemed to assign to Landlord, or preclude Tenant from seeking and retaining its interest in, a separate award to Tenant for Tenant’s Property, severable Alterations (subject to the provisions of any Legal Requirements, Insurance Requirements or Encumbrances), moving expenses, business dislocation damages or similar claims (provided, that where this Master Lease is to terminate as a result of such Condemnation, such claim does not reduce the award that would otherwise be paid over or assigned to Landlord) (“Tenant’s Award”). (c) Any surplus which may remain out of proceeds or awards received pursuant to a Condemnation after payment of such costs of Restoration undertaken by Tenant, and any Tenant’s Award (if any) shall be paid over to and belong to Landlord.
37 ARTICLE XIII DEFAULT 13.1 Events of Default. Any one or more of the following shall constitute an “Event of Default”: (a) Tenant shall fail to pay any installment of Base Rent; provided, that not more than two (2) times in any period of twelve (12) consecutive months, Tenant’s default in the payment when due of any installment of Base Rent payable hereunder shall not constitute an Event of Default unless such default continues for five (5) days following written notice from Landlord (or Landlord Mortgagee) to Tenant of such default; (b) Tenant shall fail to pay any other amount payable hereunder when due and such failure is not cured by Tenant within ten (10) days after Notice from Landlord of Tenant’s failure to pay such amount when due; (c) a default shall occur under any Lease Guaranty where the default is not cured within any applicable cure period set forth therein or, if no cure periods are provided, within thirty (30) days after Notice from Landlord; (d) Tenant or Lease Guarantor shall: (i) admit in writing its inability to pay its debts generally as they become due; (ii) file a petition in bankruptcy or a petition to take advantage of any insolvency act; (iii) make an assignment for the benefit of its creditors; (iv) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property; or (v) file a petition or answer seeking reorganization or arrangement under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof; (e) Tenant or Lease Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant or any Lease Guarantor, a receiver of Tenant or any Lease Guarantor or of the whole or substantially all of the Tenant’s or Tenant’s Parent’s property, or approving a petition filed against Tenant or any Lease Guarantor seeking reorganization or arrangement of Tenant or any Lease Guarantor under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof, and such judgment, order or decree shall not be vacated or set aside or stayed within ninety (90) days from the date of the entry thereof; (f) The occurrence of any of the following: (1) Tenant is closed by its appropriate bank regulatory authorities, including but not limited to situations where the FDIC is appointed as receiver for Tenant, (2) Tenant no longer provides FDIC insurance to its depositors,
38 or (3) Tenant is being operated by the appropriate bank regulatory authorities as a bridge bank or other transitional entity. (g) Tenant or Tenant’s Parent shall be liquidated or dissolved; (h) Tenant ceases the continuous operations of any Bank Branch in violation of the Operating Covenant, and Tenant fails to resume operations within thirty (30) days after Notice from Landlord; provided, however, if Landlord believes that Tenant has violated the Operating Covenant, it shall offer to meet and confer with Tenant in good faith for a period of fifteen (15) days prior to sending any Notice of such violation or any breach or default to Tenant; provided, further, that a reduction in scale of the retail banking business at any Bank Branch (as opposed to a ceasing of continuous operation of any Bank Branch) shall not be a violation of the Operating Covenant, so long as the primary activity conducted at each Bank Branch continues to be retail banking business (i.e., deposit-gathering and similar retail banking activities, including in-person, for retail banking customers) during such hours of operation as are generally consistent with those of similar bank branches, subject to any additional hours as Tenant may determine in its discretion; (i) any of the material representations or warranties made by Tenant hereunder or by Lease Guarantor in a Guaranty prove to be untrue when made in any material respect, and (i) if such misrepresentation is capable of being cured, it shall not have been cured within thirty (30) days after Notice from Landlord, unless Tenant shall be diligently pursuing such cure and such cure is completed within an additional sixty (60) days thereafter, or (ii) if such misrepresentation is not capable of being cured but the damages or detriment to Landlord (including all reasonable attorneys’ fees) can reasonably be ascertained and ascribed a monetary value, Tenant fails to pay the amount thereof (as reasonably estimated by Landlord) to Landlord prior to the expiration of such additional sixty (60)-day period; (j) except as expressly permitted hereunder, there shall occur any Transfer of the Master Lease or any interest therein or any Property which is not entirely revoked and rescinded within the earlier of (a) fifteen (15) days after such Transfer or (b) Tenant’s becoming aware thereof; (k) if Tenant shall fail to observe or perform any other nonmonetary term, covenant or condition of this Master Lease and such failure is not cured by Tenant within thirty (30) days after notice thereof from Landlord, unless such failure cannot with diligence be cured within a period of thirty (30) days, in which case such failure shall not be deemed to be an Event of Default if Tenant proceeds promptly and diligently to cure the failure and continues to act with diligence to complete the curing thereof within a commercially reasonable period of time not to exceed an aggregate of one hundred twenty (120) after such notice from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law; provided, further, however, that in no event shall the original thirty (30)-day period be further extended beyond any period (i) as shall be necessary to prevent imminent loss or damage (including the foreclosure of any lien) to any affected Property or (ii) which would constitute an event of default under any Landlord Mortgage which would entitle the holder to exercise any remedies thereunder;
39 (l) if Tenant shall fail to maintain any insurance required by the Lease and the same is not cured within the earlier of (a) ten (10) days after Notice from Landlord or (b) the date which is fifteen (15) days prior to the earliest date for cancellation of any insurance for nonpayment or nonrenewal; provided, however, that if such failure is the result of Tenant not obtaining the required insurance immediately following the downgrading of such insurance below the levels required herein, such failure shall not constitute an Event of Default unless such failure shall continue for the earlier of ten (10) days after (a) Tenant’s learning thereof or (b) Notice from Landlord; and (m) the existence of a Downgrade Period for more than sixty (60) days. 13.2 Certain Remedies. If an Event of Default shall have occurred and be continuing, Landlord may (i) terminate this Master Lease by giving Tenant no less than ten (10) days’ Notice of such termination and the Term shall terminate and all rights of Tenant under this Master Lease shall cease, (ii) seek damages as provided in Section 13.3 and/or (iii) exercise any other right or remedy at law or in equity available to Landlord as a result of any Event of Default. Tenant shall pay as Additional Charges all costs and expenses incurred by or on behalf of Landlord, including reasonable attorneys’ fees and expenses, and court costs, as a result of any Event of Default hereunder. If an Event of Default shall have occurred and be continuing, whether or not this Master Lease has been terminated pursuant to the first sentence of this Section 13.2, Tenant shall, to the extent permitted by law, if required by Landlord to do so, immediately surrender to Landlord possession of all or any portion of the Property as to which Landlord has so demanded and quit the same and Landlord may, to the extent permitted by law, enter upon and repossess such Property by reasonable force, summary proceedings, ejectment or otherwise, and, to the extent permitted by law, may remove Tenant and all other Persons and any of Tenant’s Property from such Property (including all Alterations), but in no event shall Tenant be obligated to remove any Alterations that are owned or are deemed to be owned by Landlord under this Master Lease. 13.3 Damages. None of (i) the termination of this Master Lease, (ii) the repossession of the Property, (iii) the failure of Landlord to relet the Property or any portion thereof, (iv) the reletting of all or any portion of the Property, or (v) the inability of Landlord to collect or receive any rentals due upon any such reletting, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive any such termination, repossession or reletting. Landlord and Tenant agree that Landlord shall make commercially reasonable efforts to mitigate Landlord’s damages under this Master Lease. If any such termination of this Master Lease occurs (whether or not Landlord terminates Tenant’s right to possession of the Property), Tenant shall forthwith pay to Landlord all Rent due and payable under this Master Lease, to and including the date of such termination. Thereafter Tenant shall forthwith pay to Landlord, at Landlord’s option, as and for liquidated and agreed upon current damages for the occurrence of an Event of Default, either: (a) the sum of: (i) the worth at the time of award of the unpaid Base Rent which had been earned at the time of termination to the extent not previously paid by Tenant under this Section 13.3; plus
40 (ii) the worth at the time of award of the amount of unpaid Base Rent which would have been earned after termination until the time of award; plus (iii) the positive difference between (A) the worth at the time of award of the amount of the unpaid Base Rent for the balance of the Term after the time of award, minus (B) the worth at the time of award of the amount of such loss of Base Rent for the balance of the Term after the time of award that Tenant proves could be reasonably avoided by commercially reasonable mitigation efforts by Landlord (provided, that for the avoidance of doubt, in no event shall the amount in the clause (iii) be less than Zero Dollars ($0)); plus (iv) any other amount necessary to compensate Landlord for the detriment proximately caused by Tenant’s failure to perform its obligations under this Master Lease or which in the ordinary course of business might result therefrom, including all unpaid Additional Charges at the time of termination and all Additional Charges which might have accrued for the balance of the Term, and all reasonable costs and expenses of reletting the Property, including, but not limited to, all brokerage, advertising, repairs and other similar expenses reasonably necessary to secure new tenants for the Property. As used in the foregoing clauses (i), (ii) and (iii), the “worth at the time of award” shall be computed by allowing interest at the Overdue Rate from the date when due to the date paid. As used in Section 13.3(a)(iii), the “worth at the time of award” shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of New York at the time of award plus one percent (1%); or (b) regardless of whether Landlord chooses to terminate Tenant’s right to possession of the Property (whether or not Landlord terminates the Master Lease), each installment of said Rent and other sums payable by Tenant to Landlord under this Master Lease as the same becomes due and payable, together with interest at the Overdue Rate from the date when due until paid, and Landlord may enforce, by action or otherwise, any other term or covenant of this Master Lease and Landlord may at any time thereafter terminate Tenant’s right to possession of the Property and seek damages under subparagraph (a) hereof, to the extent not already paid for by Tenant under this subparagraph (b). 13.4 Receiver. Upon the occurrence and continuance of an Event of Default, and upon commencement of proceedings to enforce the rights of Landlord hereunder, but subject to any limitations of applicable law, Landlord shall be entitled, as a matter of right, to the appointment of a receiver or receivers acceptable to Landlord of the Property and of the revenues, earnings, income, products and profits thereof, pending the outcome of such proceedings, with such powers as the court making such appointment shall confer. 13.5 Waiver. If Landlord initiates judicial proceedings or if this Master Lease is terminated by Landlord pursuant to this Article Tenant irrevocably waives, to the extent permitted by applicable law, (i) any right of redemption, re-entry or repossession; and (ii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt.
41 13.6 Application of Funds. Any payments received by Landlord under any of the provisions of this Master Lease during the existence or continuance of any Event of Default which are made to Landlord rather than Tenant due to the existence of an Event of Default shall be applied to Tenant’s obligations in the order which Landlord may reasonably determine or as may be prescribed by the laws of the State in which the Property is located. 13.7 Landlord’s Right to Cure Tenant’s Default. If an Event of Default shall have occurred and be continuing, in addition to and not in limitation of any and all other rights and remedies, Landlord, without waiving or releasing any obligation or Event of Default, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the expense of Tenant, and may, to the extent permitted by law, enter upon the applicable Property or any portion thereof for such purpose and take all such action thereon as, in Landlord’s opinion, may be necessary or appropriate therefor including to the fullest extent permitted by law, repossessing the Property and ejecting any Person or property thereon; provided, however, that no such entry or action by Landlord shall constitute an actual or constructive eviction or repossession, without Landlord’s express intention to do so as expressed in writing. No such entry shall be deemed an eviction of Tenant. All reasonable sums so paid by Landlord and all costs and expenses (including attorneys’ fees and expenses, in each a case, to the extent permitted by law) so incurred, together with interest thereon (to the maximum extent permitted by law) at the Overdue Rate from the date on which such sums or expenses are paid or incurred by Landlord, shall be paid by Tenant to Landlord on demand. The obligations of Tenant and rights of Landlord contained in this Article shall survive the expiration or earlier termination of this Master Lease. 13.8 Regulatory Takeover. Notwithstanding any other provisions contained in this Lease, in the event that Tenant is closed, or taken over, by a receiver appointed by the commissioner, or any other authorized deputy or employee, of the banking authority of the State of West Virginia, such receiver shall have the election to either continue or to terminate the Lease, as provided in West Virginia Code Section §31A-7-10. If the receiver elects to continue, they shall do so at the upon all terms set forth in this Master Lease and this election shall cure any Event of Default. If receiver elects to terminate, the damages for such termination may not exceed the amounts defined in West Virginia Code Section §31A-7-10. ARTICLE XIV LANDLORD’S FINANCING 14.1 Landlord’s Financing. Without the consent of Tenant, Landlord may from time to time, directly or indirectly, create or otherwise cause to exist any Landlord Mortgage upon the Property or any portion thereof or interest therein. This Master Lease is and at all times shall automatically and without further action be subject and subordinate to the lien of any Landlord Mortgage which may now or hereafter affect the Property or any portion thereof or interest therein and to all renewals, modifications, consolidations, replacements, restatements and extensions thereof or any parts or portions thereof, subject to receipt of the SNDA (hereinafter defined). The holder of each Landlord Mortgage shall execute and deliver to Tenant a customary nondisturbance and attornment agreement (“SNDA”) in the form then used by Landlord Mortgagee, which shall also be executed by Tenant as well as Landlord, which will bind Landlord and Tenant, and such holder of such Landlord Mortgage and its successors and assigns as well as any person who acquires any portion of the Property in a foreclosure or similar proceeding or in a transfer in lieu of any such
42 foreclosure or a successor owner of the Property (each, a “Foreclosure Purchaser”). The SNDA shall provide that in the event of any foreclosure under the Landlord Mortgage, the holder of such Landlord Mortgage, and any Foreclosure Purchaser, shall not disturb either Tenant’s leasehold interest or possession of the Property in accordance with the terms hereof, nor any of Tenant’s rights, privileges and options, and shall give effect to this Master Lease as if such Landlord Mortgagee or Foreclosure Purchaser were the landlord under this Master Lease (so long as there is not then outstanding and continuing an Event of Default under this Master Lease, it being understood that if an Event of Default has occurred and is continuing at such time such parties shall be subject to the terms and provisions of this Master Lease concerning the exercise of rights and remedies upon such Event of Default). If, in connection with obtaining any Landlord Mortgage for the Property or any portion thereof or interest therein, a Landlord Mortgagee or prospective Landlord Mortgagee shall request (A) reasonable cooperation from Tenant, and/or (B) reasonable amendments or modifications to this Master Lease as a condition thereto, Tenant hereby agrees to reasonably cooperate in connection therewith, and to execute and deliver such amendments or modifications so long as any such amendments or modifications do not in any material respect (i) increase Tenant’s monetary obligations under this Master Lease; (ii) increase Tenant’s nonmonetary obligations under this Master Lease; or (iii) diminish Tenant’s rights or remedies under this Master Lease, including limiting or shortening any time periods for the payment or performance of any Tenant obligations or any notice and cure periods for any default of Tenant or limiting in any manner the right of Tenant to operate the Bank Branches in the ordinary course of its business (collectively, “Tenant Detriments”). 14.2 Attornment. Any SNDA shall provide that if Landlord’s interest in the Property or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise of any remedy provided for in any Landlord Mortgage Documents (or in lieu of such exercise), or otherwise by operation of law: (a) at the request and option of the new owner or superior lessor, or other Foreclosure Purchaser, as the case may be (“Successor Landlord”), which request and option shall be exercised within thirty (30) days following such transfer of Landlord’s interest, Tenant shall attorn to and recognize the Successor Landlord as Tenant’s “landlord” under this Master Lease or enter into a new lease substantially in the form of this Master Lease with the Successor Landlord, and Successor Landlord and Tenant shall take such actions to confirm the foregoing within ten (10) days after request of the Successor Landlord, all on the terms and conditions set forth in the SNDA; and (b) the Successor Landlord shall not be liable for the acts of the prior Landlord, except as set forth in the SNDA; provided, however, until and unless Successor Landlord has made such request, Tenant shall continue to have all rights of possession of the Property as provided under this Master Lease. 14.3 Cooperation with Securitization. Tenant agrees to cooperate in good faith with Landlord and any Landlord Mortgagee in connection with any transfer, participation and/or Securitization of any loan secured by a Landlord Mortgage (a “Landlord Loan”), or any or all servicing rights with respect thereto, including by (i) providing such documents, financial and other data, and other information and materials (the “Disclosures”) which would typically be required with respect to such a transfer, participation and/or Securitization; and (ii) amending the terms of this Master Lease to the extent necessary so as to satisfy the requirements of purchasers, transferees, assignees, servicers, participants, investors or selected rating agencies involved in any such transfer, participation and/or Securitization, so long as such amendments do not cause a Tenant Detriment. Tenant consents to Landlord and Landlord’s Mortgagee providing the Disclosures to each
43 purchaser, transferee, assignee, servicer, participant, investor or rating agency involved with respect to such transfer, participation and/or Securitization, as applicable. 14.4 Landlord Mortgagee Generally. Landlord Mortgagee shall be an express and intended third party beneficiary of the provisions contained in this Article and of any other provision in this Master Lease expressly requiring the approval or consent of Landlord Mortgagee and shall have the right to enforce such provisions against Tenant. Tenant shall have the right to rely conclusively upon any written communication from any Landlord Mortgagee’s “Trustee”, “Servicer” or “Special Servicer” as the duly authorized statement or communication by Landlord Mortgagee. Unless otherwise expressly provided in the Landlord Mortgage Documents, any consent or approval of Landlord Mortgagee required under this Master Lease may be granted or withheld in Landlord Mortgagee’s sole discretion. 14.5 Limitation of Successor Landlord Liability. Notwithstanding anything herein to the contrary, in the event a Successor Landlord shall acquire title to the Property (which, for purposes of this Section, shall include Landlord at any time after Landlord Mortgagee (or its nominee or designee) shall have acquired direct or indirect control of the voting interests in any Landlord), Successor Landlord shall have no obligation, nor incur any liability, beyond Successor Landlord’s then-interest, if any, in the Property, and Tenant shall look exclusively to such interest, if any, of Successor Landlord in the Property for the payment and discharge of any obligations imposed upon Successor Landlord under this Master Lease. Tenant agrees that, with respect to any monetary judgment which may be obtained or secured by Tenant against Successor Landlord, Tenant shall look solely to the estate or interest owned by Successor Landlord in the Property (including the rent, issues and profits therefrom), and Tenant will not collect or attempt to collect any such judgment against any Successor Landlord personally or any shareholder, member, partner, director or officer thereof, out of any other assets of Successor Landlord or any shareholder, member, partner, director or officer thereof. 14.6 Lease Modifications. Tenant agrees that no amendment, modification, waiver, termination, tender, surrender or cancellation of this Master Lease shall be effective as against any Landlord Mortgagee or Successor Landlord unless the same shall have been consented to by Landlord Mortgagee or Successor Landlord in writing, unless otherwise provided in the Landlord Mortgage Documents. 14.7 Notice of Default to Landlord Mortgagee. In the event of any act or omission by Landlord which would give Tenant the right (if any), either immediately or after notice or the lapse of a period of time, or both, to terminate this Master Lease, or to claim a partial or total eviction, Tenant will not exercise any such right (A) until it has given written notice of such act or omission to Landlord Mortgagee, and (B) until a reasonable period of time (in any event not less than sixty (60) days) for remedying such act or omission shall have elapsed following both the giving of such notice and following the time when Landlord Mortgagee shall have become entitled under the Landlord Mortgage Documents to remedy the same; provided that Landlord Mortgagee, with reasonable diligence (i) shall have pursued such remedies as are available to it under Landlord Mortgage Documents so as to be able to remedy the act or omission, and (ii) thereafter shall have commenced and continued to remedy such act or omission or cause the same to be remedied.
44 14.8 Delivery of Notices to Landlord Mortgagee. Subsequent to the receipt by Tenant of Notice from Landlord as to the identity and address of Landlord Mortgagee, no Notice from Tenant to Landlord shall be effective unless and until a duplicate original of such Notice is given to Landlord Mortgagee in accordance with Article XIX. The curing of any of Landlord’s defaults by Landlord Mortgagee shall be treated as performance by Landlord. 14.9 Right of Landlord Mortgagee to Enforce Lease. Tenant agrees that, to the extent permitted by Landlord under the Landlord Mortgage Documents, Landlord Mortgagee may exercise the self-help remedies of Landlord hereunder. 14.10 Exercise of Landlord’s Discretion. In any instance hereunder in which Landlord must be reasonable in making a request or granting or withholding an approval or consent, Tenant acknowledges and agrees that Landlord may take into account the reasonable objections of Landlord Mortgagee, to the extent Landlord is required to do so under the Landlord Mortgage Documents. 14.11 Cure of Landlord Defaults. Subject to the provisions of the SNDA, no Landlord default under this Master Lease shall be deemed to exist so long as any Landlord Mortgagee in good faith, (i) shall have commenced promptly to cure the default in question and prosecutes the same to completion with reasonable diligence and continuity (in any event not less than sixty (60) days), or (ii) if possession of the Property is required to cure the default in question, such Landlord Mortgagee shall have entered into possession of the Property with the permission of Tenant for such purpose. 14.12 Indemnification. (a) Notwithstanding the existence of any insurance required to be provided hereunder (but not in duplication thereof), and without regard to the policy limits of any such insurance, and in addition to and not in limitation of any other indemnity provided in this Master Lease, Tenant will protect, indemnify, save harmless and defend Landlord and Landlord Mortgagee and all Indemnified Parties from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs, fees and expenses (including reasonable attorneys’ fees and court costs, including the same incurred in the enforcement of such indemnity), to the maximum extent permitted by law, imposed upon or incurred by or asserted against such Indemnified Party by reason of: (i) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Property, (ii) any use, misuse, nonuse, condition, maintenance, repair or Alteration by Tenant or anyone claiming by, through or under Tenant, including agents, contractors, invitees or visitors of the applicable Property or in connection with any Tenant’s Property, (iii) any failure on the part of Tenant or anyone claiming by, through or under Tenant to perform or comply with any of the terms of this Master Lease, (iv) any contest by Tenant of any Legal Requirement or Insurance Requirement, regardless of whether the same is conducted in accordance with the terms hereof, (v) any Retail Operations Claims, (vi) any Environmental Issues, (vii) without limitation of clause (i) above, any accident, injury, death or damage (as the case may be) occurring prior to the Commencement Date on or about any portion of the Property or (viii) without limitation of clause (i) above, any accident, injury, death or damage to any person occurring on or subsequent to the Commencement Date arising from any acts or omissions of Tenant. Any amounts which become payable by Tenant under this Section shall bear interest (to the extent permitted by law) at the Overdue Rate from ten (10) Business Days following the date of demand to the date of payment, unless such amount is being contested in good faith. Tenant, at its expense, shall contest, resist and
45 defend any such claim, action or proceeding asserted or instituted against any Indemnified Party (“Claim”). Nothing herein shall be construed as indemnifying an Indemnified Party against its own grossly negligent acts or willful misconduct or the results thereof. If at any time an Indemnified Party shall have received written notice of or shall otherwise be aware of any Claim which is subject to indemnity under this Section, such Indemnified Party shall give reasonably prompt written notice of such Claim to Tenant; provided, that (i) such Indemnified Party shall have no liability for an inadvertent failure to give notice to Tenant of any Claim and (ii) the inadvertent failure of such Indemnified Party to give such a notice to Tenant shall not limit the rights of such Indemnified Party or the obligations of Tenant with respect to such Claim, provided that Tenant shall have no obligation to indemnify or defend any Claim until it receives actual notice thereof (from any source). Tenant shall have the right to control the defense or settlement of any Claim, provided, that (A) if the compromise or settlement of any such Claim shall not result in the complete release of such Indemnified Party from the claim so compromised or settled, the compromise or settlement shall require the prior written approval of such Indemnified Party and (B) no such compromise or settlement shall include any admission of wrongdoing on the part of such Indemnified Party, provided, further, that an Indemnified Party shall have the right to reasonably approve counsel engaged to defend such Claim by Tenant and, at its election and sole cost and expense, shall have the right, but not the obligation, to participate fully in the defense of any Claim with counsel of its choice. Without limiting the foregoing and notwithstanding any provision to the contrary in this Master Lease, no Indemnified Party shall voluntarily agree to accept or incur liability for any Claim, or waive, toll or extend any applicable limitations period with respect to any Claim. Tenant’s liability under this Section shall survive the expiration or earlier termination of this Master Lease. (b) The following shall be expressly included in the foregoing indemnity by Tenant: (i) “Retail Operations Claims,” which means any and all claims from or by all customers, licensees, invitees, employees and others for personal injury, property damage, product or service warranty, service, merchandise, products liability, and employment, consumer credit and vendor claims, and all claims and liabilities under applicable Legal Requirements, arising out of or relating to the retail business operations or other activities conducted on or about the Property by Tenant, Tenant’s Parent or any Affiliate of their Affiliates prior to the Commencement Date or at any time during the term of this Master Lease with respect to the Property, including claims from or by all customers, licensees, invitees, employees, Governmental Authorities or any other Person for, among other things, non-compliance with applicable law, personal injury, property damage, product or service warranty, service, merchandise, cybersecurity, data breach, products liability, tax, employment (including any pension-related claims), consumer credit and vendor claims. For the avoidance of doubt, Retail Operations Claims shall include liabilities arising under tort claims by third parties as a result of violations of applicable law, in each case, arising from the physical condition or use of the Property, but shall not include other (a) claims by Landlord, its Affiliates and their successors and assigns, relating directly and solely to the physical condition of the Property, and (b) claims arising after the recapture by Landlord or its Affiliates of all or any portion of the Property or termination of this Master Lease with respect to all or any of the Property, except to the extent provided in this Master Lease.
46 (ii) “Environmental Issues,” which means any of (A) any violation of Environmental Laws or (B) the use, spilling, leaking, emitting, injecting, escaping, abandoning, dumping, presence, storage, release, threatened release, discharge, migration of or exposure to Hazardous Substances on, in, under, from or around any Land or improvements thereon in violation of Environmental Laws or in excess of an applicable standard that would require investigation, remediation or other corrective action pursuant to Environmental Law, in each case regardless of when such Hazardous Substances were first introduced in, on or about such Land or improvements. (c) To the extent not prohibited by applicable law, Tenant hereby expressly releases Landlord, and Landlord Mortgagee and all Indemnified Parties from, and irrevocably waives all claims for, damage or injury to person, theft, loss of use of or damage to property and loss of business sustained by Tenant and resulting from the Property, including any Leased Improvements, Fixtures and Tenant’s Property or any part thereof or any equipment therein or appurtenances thereto becoming in disrepair, or resulting from any damage, accident or event in or about the Property; provided, that all acts or omissions of gross negligence or willful misconduct on the part of Landlord, Landlord Mortgagee or any Indemnified Parties are excepted from the foregoing release and Landlord shall indemnify Tenant for any loss, liability, costs, expenses incurred by Tenant as a result thereof. Without limiting the generality of the foregoing, this Section shall apply particularly, but not exclusively, to: flooding, damage caused by building equipment and apparatuses, water, snow, frost, steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise or vibration, death, loss, conversion, theft, robbery, or the bursting or leaking of pipes, plumbing fixtures or sprinkler devices. ARTICLE XV TENANT FINANCING 15.1 No Leasehold Mortgages. Under no circumstance may Tenant mortgage or otherwise encumber Tenant’s interest and estate in and to the Property as a whole (the “Leasehold Estate”) or in part under one or more mortgages, deeds of trust or other instruments, except upon the prior written consent of Landlord and Landlord Mortgagee, which may be withheld, conditioned or delayed in Landlord and/or Landlord Mortgagee’s sole discretion. ARTICLE XVI NO MERGER 16.1 No Merger. There shall be no merger of this Master Lease or of the leasehold estate created hereby by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, (i) this Master Lease or the leasehold estate created hereby or any interest in this Master Lease or such leasehold estate and (ii) the fee estate in the Property. ARTICLE XVII CONVEYANCE BY LANDLORD 17.1 Conveyance by Landlord. Without limiting any provisions herein with respect to any Successor Landlord, if Landlord or any successor owner of the Property shall convey the Property as an entirety, other than as security for a debt, and the grantee or transferee expressly assumes all obligations of Landlord arising after the date of the conveyance, Landlord or such successor owner, as the case may be, shall thereupon be released absolutely and unconditionally from all future liabilities and obligations of Landlord under this Master Lease arising or accruing
47 from and after the date of such conveyance or other transfer and all such future liabilities and obligations shall thereupon be binding upon the new owner. ARTICLE XVIII QUIET ENJOYMENT 18.1 Quiet Enjoyment. So long as Tenant shall pay the Rent as the same becomes due and shall comply with all of the other material terms of this Master Lease and perform its obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Property for the Term, free of any claim or other action by Landlord or anyone claiming by, through or under Landlord, including any Landlord Mortgagee, but subject to all Encumbrances, and all liens and encumbrances after the date hereof provided for in this Master Lease or consented to by Tenant in writing where such consent is required, further subject to the terms and conditions of the SNDA. ARTICLE XIX NOTICES 19.1 Notices. Any notice, request or other communication required or desired to be given by any party hereunder shall be in writing and shall be sent by registered or certified mail, postage prepaid and return receipt requested, by hand delivery or express or overnight courier service, or by email transmission (with a copy sent pursuant to one of the other methods specified herein), to the following addresses: To Tenant: MVB Bank, Inc. c/o MVB Financial Corp. 3000 Swiss Pine Way Morgantown, West Virginia 26501 Attention: Donald T. Robinson Email: drobinson@mvbbanking.com With a copy to: Squire Patton Boggs (US) LLP 777 S. Harbour Island Blvd., Suite 420 Tampa, Florida 33602 Attention: Stacy H. Krumin Email: stacy.krumin@squirepb.com To Landlord: FNLR MVBB LLC c/o Fortress Investment Group 1345 Avenue of the Americas, 46th Floor New York, New York 10105 Attention: Constantine Dakolias Email:gc.credit@fortress.com With a copy to: c/o Fortress Investment Group 11611 San Vicente Boulevard, 10th Floor Los Angeles, California 90049 Attention: William Turner and Chase Romney Email: wturner@fortress.com and cromney@fortress.com
48 And a copy to: Dain, Torpy, Le Ray, Wiest & Garner, P.C. 175 Federal Street, 15th Floor Boston, Massachusetts 02110 Attention: Timothy Pecci Email: tpecci@daintorpy.com or to such other address as either party may hereafter designate. Notice given in accordance with this Section shall be deemed to have been given (a) if by hand or by express or overnight courier service, on the date of personal delivery, if such delivery is made on a Business Day, or if not, on the first (1st) Business Day after delivery; if delivery is refused, Notice shall be deemed to have been given on the date delivery was first attempted; and (b) if by mail, on the third (3rd) Business Day after mailing; and (c) if by email transmission, upon confirmation that such Notice was received by a “read receipt” from the recipient or by written confirmation of receipt from the recipient. ARTICLE XX ENVIRONMENTAL INDEMNITY 20.1 Hazardous Substances. Tenant shall not allow any Hazardous Substance to be located in, on, under or about the Property or incorporated in any Property; provided, however, that Hazardous Substances may be brought, kept, used or disposed of in, on or about the Property in quantities and for purposes similar to those brought, kept, or properly used or disposed of, from, in, on or under similar facilities used for purposes similar to the uses conducted at the Bank Branches in the ordinary course of business as of the date of this Master Lease and which are brought, kept, used and disposed of in compliance with Legal Requirements. Tenant shall not allow the Property to be used as a waste disposal site, or for the management, use, generation, manufacturing, labeling, registration, production, handling, storage, release, discharge, emitting, injecting, abandoning, dumping, disposal, treatment, transportation or distribution or disposal of any Hazardous Substance. 20.2 Notices. Tenant shall provide to Landlord, within five (5) Business Days after Tenant’s receipt thereof, a copy of any notice or notification (a) from a government agency with respect to (i) any violation of a Legal Requirement relating to Hazardous Substances located in, on, or under the Property or any adjacent property, (ii) any enforcement, cleanup, removal, or other governmental or regulatory action instituted, completed or threatened with respect to the Property; (b) with respect to any reports made to any federal, state or local environmental agency arising out of or in connection with any Hazardous Substance in, on, under or removed or migrating from the Property, including any complaints, notices, warnings or assertions of violations in connection therewith and (c) with respect to any claim made by any Person against Tenant or the Property relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or claimed to result from any Hazardous Substance. 20.3 Remediation. If Tenant (a) is or becomes aware of any Environmental Issue that involves the presence, a release or potential release of, or exposure to a Hazardous Substance or material harm to human health or safety or for which there is a requirement under applicable Environmental Law to conduct an investigation or remediation, (b) receives notice from a government agency of a violation of any Legal Requirement relating to any Hazardous Substance in, on, under or about the Property, or any proximate property which is caused or alleged to be caused by Tenant, or (c) if Tenant, Landlord or the Property becomes subject to any order of any
49 federal, state or local agency to repair, investigate, close, detoxify, decontaminate or otherwise remediate the Property, or if Landlord becomes aware of the circumstances described in clauses (a) through (c), Tenant shall promptly notify Landlord of such event (or Landlord shall promptly notify Tenant of such event (as applicable)), and, at its sole cost and expense, Tenant shall cure such violation or effect such repair, investigation, closure, detoxification, decontamination or other remediation as is required by applicable Environmental Law. If Tenant fails to implement and diligently pursue any such cure, investigation, repair, closure, detoxification, decontamination or other remediation to the satisfaction of the applicable regulatory authority as evidenced by the issuance of a “no further action/remediation” letter or similar instrument, Landlord shall have the right, but not the obligation, to carry out such action upon reasonable prior notice to Tenant and to recover from Tenant all of Landlord’s costs and expenses incurred in connection therewith in accordance with applicable Environmental Law. 20.4 Indemnity. Tenant shall indemnify, defend, protect, save, hold harmless, and reimburse Landlord and all Indemnified Parties for, from and against any and all costs, losses, liabilities, damages, assessments, lawsuits, deficiencies, demands, claims and expenses (collectively, “Environmental Costs”), whether or not arising out of third-party claims and regardless of whether liability without fault is imposed, or sought to be imposed, on Landlord, or on the Property, incurred in connection with, arising out of, resulting from or incident to, directly or indirectly, any and all Environmental Issues before, during or after the Term, including (i) the production, management, use, generation, manufacture, labeling, registration, storage, treatment, transporting, disposal, discharge, spilling, leaking, emitting, injecting, escaping, abandoning, dumping, release or other handling or disposition of any Hazardous Substances from, in, on or about the Property (collectively, “Handling”), including the effects of such Handling of or exposure to any Hazardous Substances on any Person or property within or outside the boundaries of the Property, (ii) the presence of any Hazardous Substances in, on, under or about the Property and (iii) the violation of any Environmental Law. “Environmental Costs” include interest, costs of response, removal, remedial action, containment, cleanup, investigation, design, engineering and construction, damages (including actual and consequential damages) for personal injuries and for injury to, destruction of or loss of property or natural resources, relocation or replacement costs, penalties, fines, charges or expenses, attorneys’ fees, expert fees, consultation fees, and court costs, and all amounts paid in investigating, defending or settling any of the foregoing. 20.5 Environmental Inspections. In the event that Landlord has a reasonable basis to believe that Tenant is in breach of its obligations under this Article XX, or that there may exist any violation of Environmental Law or presence of Hazardous Substances in excess of an applicable standard that would require investigation, remediation or other corrective action pursuant to Environmental Law in, on, from, under or about any Property, or if Landlord desires to do so in connection with the prospective sale, leasing, financing, development or development of any portion of the Property (including the Property), Landlord shall have the right, from time to time, during normal business hours and upon not less than five (5) days’ Notice to Tenant, except in the case of an emergency, in which event no notice shall be required, to conduct (or cause to be conducted) an inspection of the Property to determine the existence of such violation of Environmental Law or such presence of Hazardous Substances. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion be intended as a release of any liability for Environmental Issues. Tenant shall remain liable for any environmental condition related to or having occurred during its tenancy and any
50 Environmental Issues regardless of when such conditions are discovered and regardless of whether or not Landlord conducts an environmental inspection at the termination of this Master Lease. The obligations set forth in this Article XX shall survive the expiration or earlier termination of this Master Lease with respect to any or all Property for any reason whatsoever for a period of two (2) years after the expiration or earlier termination of this Lease. 20.6 Survival. Tenant’s liability under this Article shall survive the expiration or earlier termination of this Master Lease for a period of two (2) years after the expiration or earlier termination of this Lease (it being agreed that any claims of Tenant liability under this Article which are brought, or which Landlord has notified Tenant in writing of, within such two (2)-year period shall survive until the same are fully resolved). ARTICLE XXI MISCELLANEOUS 21.1 Survival. Notwithstanding anything to the contrary contained in this Master Lease, all terms, conditions, covenants and provisions with respect to Tenant’s obligations hereunder (including all claims against, and liabilities and indemnities of, Tenant) arising or accruing prior to or on the expiration or earlier termination of this Master Lease shall survive such expiration or termination of this Master Lease for a period of two (2) years (it being agreed that any claims of Tenant liability under this under this Lease which are brought, or which Landlord has notified Tenant in writing of, within such two (2)-year period shall survive until the same are fully resolved). For avoidance of doubt, termination of this Master Lease with respect to part or all of any one or more Property at any one or more Properties in accordance with the terms of this Master Lease, except as otherwise expressly set forth herein, shall have no impact on the effectiveness of this Master Lease with respect to any Property or Properties which have not been so terminated. 21.2 Partial Invalidity. If any provision, term, covenant or condition of this Master Lease or the application thereof to any Person or circumstance shall, to any extent, be determined by a court of competent jurisdiction or any arbitrator to be invalid or unenforceable, the remainder of this Master Lease, or the application of such provision, term, covenant or condition to Persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each provision, term, covenant or condition of this Master Lease shall be valid and be enforced to the fullest extent permitted by law. For the avoidance of doubt, nothing in this Section 21.2 shall be construed to limit the single, unitary, integrated, indivisible nature of this Master Lease. 21.3 Non-Recourse. Tenant specifically agrees to look solely to the equity interest of Landlord in the Property as it exists from time to time for the satisfaction of any claim or liability of Landlord under this Master Lease, and Tenant shall not institute any action or proceeding against, nor seek to recover any judgment from, Landlord personally or against any Property, but Landlord’s sole liability hereunder shall be limited solely to its equity interest in the Property from time to time, and no recourse under or in respect of this Master Lease shall be had against any other assets of Landlord or against any Person having an interest in Landlord or any such Person’s assets whatsoever. Without limiting the foregoing, it is specifically agreed that no constituent partner, member or shareholder or owner of any beneficial or equitable interest in Landlord or any manager, managing member, director, officer or employee of Landlord shall ever be personally liable nor shall any personal assets of any such Person ever be liable for any such claim, liability or judgment
51 or for the payment of any monetary obligation to Tenant. Furthermore, except as otherwise expressly provided herein, in no event shall Landlord ever be liable to Tenant nor shall Tenant ever be liable to Landlord for any indirect, speculative or consequential damages suffered by Tenant or Landlord, as the case may be, from whatever cause. 21.4 Successors and Assigns. This Master Lease shall be binding upon Landlord and its successors and assigns, and upon Tenant and its permitted successors and assigns pursuant to Article IX. 21.5 Governing Law. THIS MASTER LEASE WAS NEGOTIATED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL JURISDICTIONAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS MASTER LEASE (AND ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OR CONFLICTS OF LAW) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT, AS TO EACH PROPERTY, ALL PROVISIONS HEREOF RELATING TO THE CREATION OF THE LEASEHOLD ESTATE AND ALL REMEDIES SET FORTH IN ARTICLE XIV RELATING TO RECOVERY OF POSSESSION OF SUCH PROPERTY (SUCH AS AN ACTION FOR UNLAWFUL DETAINER, IN REM ACTION OR OTHER SIMILAR ACTION) (COLLECTIVELY, “LOCAL REMEDIES”) SHALL BE CONSTRUED AND ENFORCED ACCORDING TO, AND GOVERNED BY, THE LAWS OF THE STATE IN WHICH SUCH PROPERTY IS LOCATED. 21.6 Consent to Jurisdiction; Waiver of Trial by Jury. EACH PARTY HERETO IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS MASTER LEASE (INCLUDING ANY BREACH HEREOF) OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY, AND AGREES TO COMMENCE ANY SUCH ACTION, SUIT OR PROCEEDING ONLY IN SUCH COURTS, EXCEPT WITH RESPECT TO ANY LOCAL REMEDIES. EACH PARTY FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY UNITED STATES REGISTERED MAIL TO SUCH PARTY’S RESPECTIVE ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUCH ACTION, SUIT OR PROCEEDING. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN SUCH COURTS, AND HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF LANDLORD AND TENANT ACKNOWLEDGES THAT IT HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATE. EACH OF LANDLORD AND TENANT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO
52 TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS MASTER LEASE (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR (ii) IN ANY MANNER CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF LANDLORD AND TENANT WITH RESPECT TO THIS MASTER LEASE (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREINAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; EACH OF LANDLORD AND TENANT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT EITHER PARTY MAY FILE A COPY OF THIS SECTION 21.6 WITH ANY COURT AS CONCLUSIVE EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. 21.7 Entire Agreement. This Master Lease and the Exhibits and Schedules hereto constitute the entire and final agreement of the parties with respect to the subject matter hereof, and may not be changed or modified except by an agreement in writing signed by the parties, and no such change or modification to any specific provision of this Master Lease shall be effective without the explicit reference to the applicable Section by number and paragraph (if any). Landlord and Tenant hereby agree that all prior or contemporaneous oral or written understandings, agreements or negotiations relative to the leasing of the Property or the execution of this Master Lease are merged and integrated into, and revoked and superseded, by this Master Lease. 21.8 Headings. All titles and headings to sections, subsections, paragraphs or other divisions of this Master Lease are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other contents of such sections, subsections, paragraphs or other divisions, such other content being controlling as to the agreement among the parties hereto. 21.9 Counterparts. This Master Lease may be executed in any number of counterparts, each of which shall be a valid and binding original, but all of which together shall constitute one and the same instrument. Any counterpart delivered by facsimile, pdf or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Master Lease. 21.10 Interpretation. Both Landlord and Tenant have been represented by counsel and this Master Lease and every provision hereof has been freely and fairly negotiated. Consequently, all provisions of this Master Lease shall be interpreted according to their fair meaning and shall not be strictly construed against any party. 21.11 Time of Essence. TIME IS OF THE ESSENCE OF THIS MASTER LEASE AND EACH PROVISION HEREOF IN WHICH TIME OF PERFORMANCE IS ESTABLISHED. 21.12 Further Assurances. The Parties agree to execute, acknowledge and deliver to each other Party and/or such other Persons as a Party may request, all documents reasonably requested by any Party to give effect to the provisions and intent of this Master Lease.
53 21.13 Landlord’s Right to Inspect and Show the Property. In addition to all other rights of Landlord hereunder, upon reasonable advance notice to Tenant which may be given verbally to the Bank Branch manager with not less than forty-eight (48) hours’ notice (except in the case of an emergency), Landlord and its authorized representatives shall have the right to inspect the Property and to show the Property to potential purchasers, tenants and lenders at all reasonable times during usual business hours. Landlord and its representatives shall take reasonable care to minimize disturbance of the operations of the Property, except in the case of an emergency, and not to cause any damage or injury to the Property or Tenant’s Property, and Landlord shall be responsible for all acts and omissions for all representatives it brings on the Property. Tenant and its representatives shall have the right to be present during any and all such inspections. 21.14 Acceptance of Surrender. No surrender to Landlord of this Master Lease or of the Property or any part thereof, or of any interest therein, shall be valid or effective until and unless agreed to and accepted in writing by Landlord, and no act by Landlord or any representative or agent of Landlord, other than written acceptance by Landlord, shall constitute an acceptance of any such surrender. 21.15 Non-Waiver. The failure of Landlord or Tenant to insist, in any one or more instances, upon a strict performance of any of the covenants, conditions, terms or provisions of this Master Lease, or to exercise any election, option, right or remedy herein contained (collectively, “Lease Provisions”), shall not be construed as a waiver or a relinquishment of such Lease Provisions or a waiver for the future of any of the same or any other Lease Provisions, but the same shall continue and remain in full force and effect. The receipt by Landlord of Rent or payment of Rent by Tenant, with knowledge of the breach of any Lease Provisions for which Tenant is obligated or liable, shall not be deemed a waiver of such breach. No waiver by Landlord or Tenant of any Lease Provisions shall be deemed to have been made unless expressed in writing and signed by Landlord or Tenant, as the case may be. 21.16 Accord and Satisfaction. Without limiting the foregoing provisions of Section 21.15, no payment by Tenant or receipt by Landlord of a lesser amount than the full amount of Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated or required payments of Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or confirmation of any Wire Transfer or other payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check, Wire Transfer or other payment without prejudice to Landlord’s right to recover the balance of such Rent (with late charges and interest as provided herein) or pursue any other remedy provided in this Master Lease or at law or in equity. 21.17 Liens. Tenant shall have no power to do any act or make any contract which may create or be the foundation for any lien, mortgage or other encumbrance upon the estate of Landlord or of any interest of Landlord in the Property or the Property, or upon or in the building or buildings or improvements thereon or hereafter erected or placed thereon, it being agreed that should Tenant cause any improvements, alterations or repairs to be made to the Property, or material furnished or labor performed therein, or thereon, neither Landlord nor the Property nor any improvements shall under any circumstances be liable for the payment of any expense incurred or for the value of any work done or material furnished to the Property or any part thereto. All such improvements, alterations, repairs, materials and labor shall be done at Tenant’s expense and Tenant shall be solely
54 and wholly responsible to contractors, laborers and material men furnishing labor and material to said premises and building or buildings and improvements or any part thereof and all such laborers, material men and contractors are hereby charged with notice that they must look solely and wholly to Tenant and Tenant’s interest in the Property to secure the payment of any bills for work done and materials furnished. In addition to all other rights and remedies of Landlord, in the event that a mechanic’s lien shall be filed against the Property or Tenant’s interest therein or against the Property as the result of any repairs, fixturing, alterations or other work undertaken by Tenant, Tenant shall, within thirty (30) days after receiving notice of such lien, discharge such lien either by payment of the indebtedness due or by filing a bond (as provided by statute) or by providing a surety bond for one hundred twenty five percent (120%) of the amount of such lien as security therefor, or a title indemnity from a nationally recognized title insurer. In the event that Tenant shall fail to bond or discharge such lien, or provide such security or title indemnity for such lien, Landlord may, but shall not be obligated to, in addition to all other rights and remedies in this Master Lease, have the right to procure such discharge by filing such bond and Tenant shall pay the cost of such bond to Landlord (together with interest at the Overdue Rate) as Additional Charges upon the first day that Rent shall be due thereafter. 21.18 Cumulative Remedies. Each and every one of the rights, remedies and benefits provided by this Master Lease to Landlord and Tenant shall be cumulative and shall not be exclusive of any other such rights, remedies and benefits allowed by law. 21.19 Confidentiality and Media Releases. The Parties hereby agree not to disclose any of the terms of this Master Lease to any person or entity not a party to this Master Lease, nor shall either Party, without the prior written consent of the other, issue any press or other media releases or make any public statements relating to the terms or provisions of this Master Lease; provided, however, that either Party may make necessary disclosures to (i) potential lenders, investors, purchasers, subtenants, assignees, attorneys, advisors, consultants, accountants and economic development authorities and/or as may be required by applicable laws, as is required to or customarily disclosed in securities filings or court order, or (ii) any lender, investor or prospective investor, rating agency, counsel, advisor, consultant or accountant in connection with a securitization and/or sale of a loan. 21.20 Authority. The Parties hereto represent and warrant to each other that the person(s) executing this Master Lease on behalf of Landlord or Tenant, as the case may be, have been duly authorized by all requisite corporate or other action of Landlord or Tenant, as the case may be, so that upon such execution this Master Lease will be binding upon and enforceable against each Party in accordance with its terms, subject to general equitable principles and the laws of insolvency and bankruptcy. Landlord and Tenant agree to furnish to the other Party from time to time upon request such written proof of such authorization as either Party may reasonably request. 21.21 Overdue Rate. In addition to all other rights and remedies of Landlord in this Master Lease, in the event that Landlord shall incur any cost or expense on behalf of Tenant (including curing or payment or discharge of any liability or obligation of Tenant or any breach or default by Tenant hereunder), whether or not there is an Event of Default, which is not paid to Landlord by Tenant within ten (10) Business Days of Landlord’s demand therefor accompanied by
55 an invoice in reasonable detail, the same shall bear interest at the Overdue Rate from the date of demand until paid in full and shall constitute Additional Charges. 21.22 Delivery of Information. (a) Within seventy-five (75) days after the end of each Fiscal Year and within forty (40) days after the end of each fiscal quarter of Tenant during the Term, Tenant shall deliver to Landlord Tenant’s and Lease Guarantor’s consolidated Financial Statements for the Fiscal Year or quarter, as the case may be, then ended. (b) Tenant shall also deliver the following additional financial information to Landlord: (i) prompt notice (containing reasonable detail) of any material changes in the financial or physical condition of any Property, including any termination of a material lease and any termination or cancellation of insurance required by the Landlord Mortgage; and (ii) as promptly as reasonably practicable, all such other financial statements and information as Landlord may reasonably request, including to enable Landlord to comply with all voluntary and mandatory financial reporting requirements of Landlord under all Legal Requirements and under the Landlord Mortgage, including with respect to any requirements of any member of Landlord (or any Affiliate of any member of Landlord), their successors, and assigns, with respect to status as a REIT. Tenant and Lease Guarantor shall also make their management-level employees responsible for financial reporting available for a management call with Landlord and Landlord Mortgagee (if any), to answer questions as to the Financial Statements, at least one (1) time per calendar quarter at Landlord’s request. Subject to the next succeeding sentence, all such Financial Statements and additional financial information, and information derivative therefrom (collectively, “Tenant Confidential Information”), shall be held strictly confidential by Landlord and shall not be shared or disclosed by Landlord (except to its members, employees, representatives, agents, accountants, attorneys, investors, potential investors, lenders, potential lenders, purchasers, potential purchasers and service providers who have a reason to know such Tenant Confidential Information in order to assist Landlord in its ownership and operation of the Properties (including, without limitation, any financing, re-financing, capitalization, re-capitalization, sale, or assignment thereof) and Landlord shall cause such Persons to not disclose the same) until and unless Tenant has made such information public and except pursuant to Legal Requirements or legal process. Notwithstanding the foregoing, Landlord may disclose Tenant Confidential Information to (i) the agents and actual or prospective lenders in respect of the Landlord Mortgage in accordance with the Landlord Mortgage Documents, and (ii) any lender, investor or prospective investor, rating agency, counsel, advisor, consultant or accountant in connection with any loan, or any securitization, participation and/or sale of a loan. ARTICLE XXII MEMORANDUM OF LEASE 22.1 Memorandum of Lease. In no event shall Tenant record this Master Lease. Landlord and Tenant covenant and agree to execute, acknowledge and deliver a short-form
56 memorandum of this Master Lease, in form suitable for recording under the laws of each state in which the applicable Property is located, at any other time upon the request of Tenant. From time to time, upon request of either Party, the Parties shall execute, acknowledge and deliver amendments to such memoranda of lease (a) to reflect the termination of this Master Lease with respect to any Property as provided herein, and upon the final expiration or earlier termination of this Master Lease to the Property, and (b) as otherwise may be appropriate. Tenant shall pay all costs and expenses of recording such Memorandum of Lease and any further memoranda of lease (except in connection with any New Lease). In the event of any discrepancy between the provisions of such recorded memoranda and the provisions of this Master Lease, the provisions of this Master Lease shall prevail. ARTICLE XXIII BROKERS 23.1 Brokers. Tenant warrants that it has not had any contact or dealings with any real estate broker, agent or finder or other Person which would give rise to the payment of any fee, brokerage commission or other payment in connection with this Master Lease, and Tenant shall indemnify, protect, hold harmless and defend Landlord and all Indemnified Parties from and against any claims, liability, damages, fees, costs or expenses, including reasonable attorneys’ fees and court costs (including the same incurred in the enforcement of each indemnity) with respect to any fee, brokerage commission or other payment arising out of any act or omission of Tenant. Landlord warrants that it has not had any contact or dealings with any real estate broker, agent, finder or other Person which would give rise to the payment of any fee, brokerage commission or other payment in connection with this Master Lease, and Landlord shall indemnify, protect, hold harmless and defend Tenant from and against any claims, liability, damages, fees, costs or expenses, including reasonable attorneys’ fees and court costs (including the same incurred in the enforcement of such indemnity) with respect to any fee, brokerage commission or other payment arising out of any act or omission of Landlord. ARTICLE XXIV ANTI-TERRORISM 24.1 Anti-Terrorism Representations. Tenant hereby represents and warrants that neither Tenant, nor, to the knowledge of Tenant, any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (a) the target of any sanctions program that is established by Executive Order of the President of the United States or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (b) designated by the President of the United States or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President of the United States issued pursuant to such statutes; or (c) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons” (collectively, “Prohibited Persons”). Tenant hereby represents and warrants to Landlord that no funds tendered to Landlord by Tenant under the terms of this Master Lease are or will be directly or, to Tenant’s knowledge, indirectly derived from activities that may contravene U.S. federal, state or international laws and regulations, including anti-money laundering laws. If the foregoing representations are untrue at any time during the Term and Landlord suffers actual damages as a result thereof, an Event of Default will be deemed to have occurred, without the necessity of notice to Tenant.
57 Tenant will not during the Term of this Master Lease knowingly engage in any transactions or dealings, or knowingly be otherwise associated, with any Prohibited Persons in connection with the use or occupancy of the Property. A breach of the representations contained in this Section 24.1 by Tenant as a result of which Landlord suffers actual damages shall, without the necessity of notice to Tenant, constitute a material breach of this Master Lease and shall entitle Landlord to any and all remedies available hereunder, or at law or in equity. Landlord hereby represents and warrants that neither Landlord, nor, to the knowledge of Landlord, any persons or entities holding any legal or beneficial ownership interest (direct or indirect) whatsoever in Landlord (1) are Prohibited Persons, (2) are under investigation by any governmental authority for, or have been charged with, or convicted of, any violation of any Anti- Money Laundering Laws, or drug trafficking, terrorist-related activities or other money laundering predicated crimes, (3) have been assessed civil penalties under these or related laws, or (4) have had any of its funds seized or forfeited in an action under these or related laws; provided, however, none of the foregoing shall apply to any person to the extent that such person's interest is in or through a U.S. Publicly-Traded Entity. ARTICLE XXV REIT PROTECTION 25.1 REIT Protection. (a) The Parties hereto intend that Rent and all other amounts paid by Tenant hereunder will qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto and this Master Lease shall be interpreted consistently with this intent. (b) Notwithstanding anything to the contrary contained in this Master Lease, Tenant shall not without Landlord’s advance written consent (which consent shall not be unreasonably withheld) (i) sublet, assign or enter into a management arrangement for the Property on any basis such that the rental or other amounts to be paid by the subtenant, assignee or manager thereunder would be based, in whole or in part, on either (x) the income or profits derived by the business activities of the subtenant, assignee or manager or (y) any other formula or allocation such that any portion of any amount received by Landlord (or received or deemed to be received for U.S. federal income tax purposes by any member of Landlord (or any Affiliate of any member of Landlord)) would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto; (ii) furnish or render any services to the subtenant, assignee or manager or manage or operate the Property so subleased, assigned or managed; (iii) sublet or assign to, or enter into a management arrangement for the Property with, any Person (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code)) in which Tenant, Landlord or any member of Landlord (or any Affiliate of any member of Landlord) owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Code); or (iv) sublet, assign or enter into a management arrangement for the Property in any other manner which could cause any portion of the amounts received by Landlord (or received or deemed to be received for U.S. federal income tax purposes by any member of Landlord (or any Affiliate of any member of Landlord)) pursuant to this Master Lease or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto, or which could cause any other income of Landlord or any member of Landlord (or any Affiliate of any
58 member of Landlord) to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section shall likewise apply to any further subleasing by any subtenant. (c) Notwithstanding anything to the contrary contained in this Master Lease, the Parties acknowledge and agree that Landlord, in its sole discretion, may assign this Master Lease or any interest herein to another Person (including a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code)) to maintain the status of any member of Landlord (or any Affiliate of any member of Landlord) as a “real estate investment trust” (within the meaning of Section 856(a) of the Code); provided, however, that Landlord shall be required to (i) comply with any applicable legal requirements related to such transfer and (ii) give Tenant notice of any such assignment; and provided, further, that any such assignment shall be subject to all of the rights of Tenant hereunder. (d) Notwithstanding anything to the contrary contained in this Master Lease, upon request of Landlord, Tenant shall cooperate with Landlord in good faith and at no cost or expense to Tenant, and provide such documentation and/or information as may be in Tenant’s possession or under Tenant’s control and otherwise readily available to Tenant as shall be reasonably requested by Landlord in connection with verification of “real estate investment trust” (within the meaning of Section 856(a) of the Code) compliance requirements. Tenant shall take such reasonable action as may be requested by Landlord from time to time to ensure compliance with the Internal Revenue Service requirement that Rent allocable for purposes of Section 856 of the Code to personal property, if any, at the beginning and end of a calendar year does not exceed fifteen percent (15%) of the total Rent due hereunder as long as such compliance does not (i) increase Tenant’s monetary obligations under this Master Lease, (ii) materially and adversely increase Tenant’s nonmonetary obligations under this Master Lease or (iii) materially diminish Tenant’s rights under this Master Lease. (e) If Tenant contemplates a transaction that would result in any change to the direct or indirect ownership of Tenant and Tenant reasonably believes, after performing appropriate due diligence, that such change could cause any portion of the amounts received by Landlord (or received or deemed to be received for U.S. federal income tax purposes by any member of Landlord (or any Affiliate of any member of Landlord)) pursuant to this Master Lease or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto, or which could cause any other income of Landlord or any member of Landlord (or any Affiliate of any member of Landlord) to fail to qualify as income described in Section 856(c)(2) of the Code (a “Related Party Rent Issue”; such transaction, a “Tenant Transaction”), then Tenant shall deliver Notice of such Tenant Transaction to Landlord at least five (5) Business Days prior to the consummation thereof (a “Tenant Transaction Notice”). If Tenant delivers a Tenant Transaction Notice, then both Landlord and Tenant shall have the right to request from each other such information as is reasonably required to determine if such Tenant Transaction would result in a Related Party Rent Issue. If Landlord or Tenant reasonably determines that such Tenant Transaction would result in a Related Party Rent Issue (or if such Tenant Transaction is consummated and in fact results in a Related Party Rent Issue), then Landlord and Tenant shall work together in good faith to restructure such Tenant Transaction in a manner that does not create a Related Party Rent Issue.
59 ARTICLE XXVI FAIR MARKET RENT—APPRAISAL 26.1 Fair Market Rent. In the event that it becomes necessary to determine the Fair Market Rent of any Property for any purpose of this Master Lease, and the parties cannot agree amongst themselves on such value within twenty (20) days after the first request made by one of the parties to do so, then either party may notify the other of a person selected to act as appraiser (such person, and each other person selected as provided herein, an “Appraiser”) on its behalf. Within fifteen (15) days after receipt of any such Notice, the other party shall by notice to the first party appoint a second person as Appraiser on its behalf. The Appraisers thus appointed, each of whom must be a member of The Appraisal Institute/American Institute of Real Estate Appraisers (or any successor organization thereto) with at least ten (10) years of experience appraising properties similar to the Property, shall, within thirty (30) days after the date of the notice appointing the first Appraiser, proceed to appraise the applicable Property to determine the Fair Market Rent thereof as of the relevant date; provided, that if one Appraiser shall have been so appointed, or if two Appraisers shall have been so appointed but only one such Appraiser shall have made such determination within forty (40) days after the making of the initial appointment, then the determination of such Appraiser shall be final and binding upon the parties. If two (2) Appraisers shall have been appointed and shall have made their determinations within the respective requisite periods set forth above and if the difference between the amounts so determined shall not exceed three percent (3%) of the lesser of such amounts, then the Fair Market Rent shall be an amount equal to fifty percent (50%) of the sum of the amounts so determined. If the difference between the amounts so determined shall exceed three percent (3%) of the lesser of such amounts, then such two (2) Appraisers shall have twenty (20) days to appoint a third (3rd) Appraiser, but if such Appraisers fail to do so, then either party may request the American Arbitration Association or any successor organization thereto to appoint an Appraiser within twenty (20) days of such request, and both parties shall be bound by any appointment so made within such twenty (20)-day period. If no such Appraiser shall have been appointed within such twenty (20) days or within ninety (90) days of the original request for a determination of Fair Market Rent, whichever is earlier, either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Any Appraiser appointed by the original Appraisers, by the American Arbitration Association or by such court shall be instructed to select the determination of Fair Market Rent submitted by Landlord or Tenant, within thirty (30) days after appointment of such Appraiser but otherwise the third appraiser shall have no authority to make any other determination. The selection by the third Appraiser of the determination of Fair Market Rent shall be final and binding upon Landlord and Tenant as the Fair Market Rent for such interest. This provision for determination by appraisal shall be specifically enforceable to the extent such remedy is available under applicable law, and any determination hereunder shall be final and binding upon the parties except as otherwise provided by applicable law. Landlord and Tenant shall each pay the fees and expenses of the Appraiser appointed by it and their own legal fees, and each shall pay one-half of the fees and expenses of the third Appraiser and one-half (1/2) of all other cost and expenses incurred in connection with each appraisal. ARTICLE XXVII OFFICERS’ CERTIFICATES—STATUS OF LEASE 27.1 Certificate of Tenant. At any time during the Term, Tenant shall, within ten (10) Business Days after written request by Landlord, execute, acknowledge and deliver to Landlord, or any other Person specified by Landlord, an Officer’s Certificate (which may be relied upon by such
60 Person) (a) certifying (i) that, to the knowledge of Tenant, this Master Lease is unmodified and in full force and effect (or if there are modifications, that this Master Lease, as modified, is in full force and effect and stating such modifications and providing a copy thereof if requested) and (ii) the date to which Base Rent, Additional Charges and any other item payable by Tenant hereunder has been paid, and (b) stating (i) whether Tenant has given Landlord any outstanding notice of any event that, with the giving of notice or the passage of time, or both, would constitute a default by Landlord in the performance of any covenant, agreement, obligation or condition contained in this Master Lease and (ii) whether, to the best knowledge of Tenant, Landlord is in default in performance of any covenant, agreement, obligation or condition contained in this Master Lease, and, if so, specifying in reasonable detail each such default. 27.2 Certificate of Landlord. At any time during the Term, Landlord shall, within ten (10) Business Days after request by Tenant, execute, acknowledge and deliver to Tenant, or any other Person specified by Tenant, a written statement (which may be relied upon by such Person) (a) certifying (i) that this Master Lease is unmodified and in full force and effect (or if there are modifications, that this Master Lease, as modified, is in full force and effect and stating such modifications and providing a copy thereof if requested) and (ii) the date to which Base Rent, Additional Charges and any other item payable by Tenant hereunder has been paid, and (b) stating (i) whether an Event of Default has occurred or whether Landlord has given Tenant any outstanding notice of any event that, with the giving of notice or the passage of time, or both, would constitute an Event of Default and (ii) whether, to the best knowledge of Landlord, Tenant is in default in the performance of any covenant, agreement, obligation or condition contained in this Master Lease, and, if so, specifying in reasonable detail each such default or Event of Default. ARTICLE XXVIII CONDITION OF PROPERTY ON EXPIRATION OR TERMINATION OF MASTER LEASE 28.1 Delivery of Property. Upon the expiration or termination of this Master Lease from whatsoever cause with respect to any or all of the Property or a portion thereof with respect to casualty or Condemnation, or as a result of any Event of Default, Tenant shall surrender and deliver the affected Property to Landlord, together with all Alterations, (a) vacant and free from all occupants and tenancies, including all Subleases, (b) broom-clean and in proper order and condition of repair as required by the other provisions of this Master Lease, reasonable wear and tear excepted, (c) in compliance with all Legal Requirements, Encumbrances and all other requirements of this Master Lease, (d) with all Tenant’s Property removed, and (e) free and clear of all Encumbrances, other than (x) Permitted Encumbrances (except for Subleases), and (y) Landlord Encumbrances. Notwithstanding the foregoing, in the event of a Master Lease termination as a result of casualty or Condemnation, subparagraph (b) shall not apply to the extent affected by such casualty or Condemnation. [SIGNATURES FOLLOW]
Ex. A-1 EXHIBIT A PROPERTY 1. 1000 Johnson Avenue, Bridgeport, WV 2. 100 NASA Boulevard, Fairmont, WV 3. 301 Virginia Avenue, Fairmont, WV 4. 10 Sterling Drive, Morgantown, WV ______________________________________________________________________________ 1000 JOHNSON AVENUE, BRIDGEPORT, WV ALL THAT CERTAIN LOT OR PARCEL OF REAL ESTATE SITUATE IN SIMPSON- BRIDGEPORT DISTRICT, HARRISON COUNTY, WEST VIRGINIA, BEING MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN SAID MEADOWBROOK ROAD, CORNER TO LOT NO. 7 OF BLOCK C OF MEADOW VISTA, AND RUNNING THENCE WITH THE EASTERLY LINE OF LOTS NOS. 7 AND 6, NORTH 37° 48’ EAST 177.91 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT NO. 2; THENCE WITH THE SOUTHERLY LINE OF LOT NO. 2 AND LOT NO. 1, SOUTH 54° 57’ EAST 150.07 FEET TO A STAKE IN THE WESTERLY LINE OF LOT NO. 3 OF BLOCK B OF MEADOW VISTA; THENCE WITH THE WESTERLY LINE OF LOTS NOS. 3, 2 AND 1 OF SAID BLOCK B, SOUTH 37° 48’ WEST 190.56 FEET TO A STAKE IN THE NORTHERLY LINE OF SAID MEADOWBROOK ROAD; AND THENCE THEREWITH, NORTH 50° 07’ WEST 150.00 FEET TO THE BEGINNING, CONTAINING 0.63 OF AN ACRE, MORE OR LESS. AND FURTHER DESCRIBED BY A SURVEY PREPARED BY PAUL D. HARBERT, PS NO. 862 OF MCCOY LAND SURVEYING DATED FEBRUARY 2024, MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS, TO-WIT: BEGINNING AT A POINT STANDING ON THE NORTHEASTERN R/W LIMITS OF JOHNSON AVENUE, (FORMERLY MEADOWBROOK ROAD), CORNER TO LOT 1, BLOCK B OF MEADOW VISTA; THENCE WITH THE NORTHEASTERN R/W LIMITS OF JOHNSON AVENUE NORTH 50’07’00” WEST 150.00 FEET TO A POINT, CORNER TO LOT 7, BLOCK C OF MEADOW VISTA; THENCE WITH LINE OF LOT 7, BLOCK C AND THEN WITH LINE OF LOT 6, BLOCK C, NORTH 37’48’00” EAST (PASSING THROUGH A 5/8” IRON PIN SET AT 5.00 FEET AND A 3/4” IRON PIN FOUND AT 131.66 FEET) 177.91 FEET TO A 3/4” IRON PIN FOUND, CORNER TO LOT 2, BLOCK C, LOT 3, BLOCK C AND LOT 6, BLOCK C; THENCE WITH LINE OF LOT 2, BLOCK C AND THEN WITH LINE OF LOT I, BLOCK C, SOUTH 54°57’00” EAST 150.07 FEET TO A 5/8” IRON PIN SET IN LINE OF LOT 3, BLOCK B, CORNER TO LOT 1, BLOCK C; THENCE WITH LINE OF LOTS 3, 2 AND
Ex. A-2 1, BLOCK B SOUTH 37’48’00” WEST (PASSING THROUGH A 3/4” IRON PINS FOUND AT 30.56 FEET AND AT 105.68 FEET AND A 5/8” IRON PIN FOUND 178.69 FEET) 190.56 FEET TO THE PLACE OF BEGINNING, CONTAINING 0.63 ACRES, MORE OR LESS, AS SHOWN ON PLAT PREPARED BY PAUL D. HARBERT, PS NO. 862 OF MCCOY LAND SURVEYING DATED FEBRUARY 2024. BEING THE SAME REAL ESTATE CONVEYED BY ESSEX PROPERTIES, LLC, A WEST VIRGINIA LIMITED LIABILITY COMPANY, TO MVB BANK INC., A WEST VIRGINIA BANKING CORPORATION, BY DEED DATED FEBRUARY 1, 2024, OF RECORD IN DEED BOOK 1770, AT PAGE 368. 100 NASA BOULEVARD, FAIRMONT, WV The Land referred to herein below is situated in the County of Marion, State of West Virginia and is described as follows: PARCEL ONE: BEGINNING AT A 3/4” IRON REBAR NOW SET AT A CORNER COMMON TO TECH PARK NON-PROFIT HOLDINGS, INC. (TAX MAP 02-20 PARCEL 16.1, DEED BOOK 1035 PAGE 260), WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (TAX MAP 02-20 PARCEL 17, DEED BOOK 971 PAGE 399), AND ON THE NORTHERLY RIGHT-OF-WAY LINE OF MARION COUNTY ROUTE 250/82 (NASA BOULEVARD) WHICH BEARS, NORTH 48 DEGREES 34 MINUTES 23 SECONDS EAST, A DISTANCE OF 365.87 FEET FROM A WVDOT ROW MARKER; THENCE, LEAVING SAID WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (PARCEL 17), MARION COUNTY ROUTE 250/82 (NASA BOULEVARD) AND THROUGH SAID TECH PARK NON-PROFIT HOLDINGS, INC. (PARCEL 16.1) FOR THREE (3) NEW LINES OF DIVISION, NORTH 45 DEGREES 36 MINUTES 49 SECONDS WEST, A DISTANCE OF 99.44 FEET TO A 3/4” IRON REBAR NOW SET; THENCE, NORTH 50 DEGREES 19 MINUTES 39 SECONDS EAST, A DISTANCE OF 233.28 FEET TO A 3/4” IRON REBAR NOW SET; THENCE, SOUTH 44 DEGREES 59 MINUTES 21 SECONDS EAST, PASSING A 1/2” IRON REBAR FOUND AT A DISTANCE OF 89.05 FEET, FOR A TOTAL DISTANCE OF 90.71 FEET TO A POINT AT A CORNER COMMON TO SAID TECH PARK NON- PROFIT HOLDINGS, INC. (PARCEL 16.1), WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (PARCEL 17), AND CAROLINE C. MORGAN (LE) (TAX MAP 02-20 PARCEL 20, DEED BOOK 897 PAGE 406); THENCE, LEAVING SAID MORGAN (PARCEL 20) AND WITH SAID WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (PARCEL 17), SOUTH 48 DEGREES 12 MINUTES 11 SECONDS WEST, A DISTANCE OF 231.55 FEET TO THE PLACE OF BEGINNING, CONTAINING 22,022 SQUARE FEET OR 0.51 ACRES, MORE OR LESS. THE TRACT OR PARCEL OF LAND HEREIN DESCRIBED BEING A PART OF THE SAME LANDS CONVEYED TO TECH PARK NON-PROFIT HOLDINGS, INC. FROM WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. AS RECORDED IN
Ex. A-3 DEED BOOK 1035 PAGE 260 AT THE OFFICE OF THE CLERK, MARION COUNTY, WEST VIRGINIA AND CONVEYED BACK FROM TECH PARK NON-PROFIT HOLDINGS, INC. TO WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION BY DEED DATED THE 3RD DAY OF JUNE, 2013 AND RECORDED IN THE AFORESAID CLERK’S OFFICE IN DEED BOOK 1133 AT PAGE 742. PARCEL TWO: BEGINNING AT A CORNER COMMON TO WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (TAX MAP 02-20 PARCEL 17, DEED BOOK 971 PAGE 399) AND CAROLINE C. MORGAN (LE) (TAX MAP 02-20 PARCEL 20, DEED BOOK 897 PAGE 406), WHICH BEARS, SOUTH 44 DEGREES 59 MINUTES 21 SECONDS EAST, A DISTANCE OF 348.51 FEET FROM A ½” IRON REBAR FOUND AT A CORNER COMMON TO SAID WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (PARCEL 17), SAID MORGAN (PARCEL 20), AND ON A LINE COMMON TO TECH PARK NON-PROFIT HOLDINGS, INC. (TAX MAP 02-20 PARCEL 16.1, DEED BOOK 1035 PAGE 260); THENCE, WITH SAID MORGAN (PARCEL 20), SOUTH 48 DEGREES 32 MINUTES 38 SECONDS WEST, A DISTANCE OF 154.53 FEET TO A 3/4” IRON REBAR NOW SET AT A CORNER TO SAID MORGAN (PARCEL 20) AND ON THE NORTHERLY RIGHT-OF-WAY LINE OF MARION COUNTY ROUTE 250/82 (NASA BOULEVARD); THENCE, WITH SAID MARION COUNTY ROUTE 250/82 (NASA BOULEVARD) FOR THREE (3) LINES, NORTH 53 DEGREES 22 MINUTES 19 SECONDS WEST, A DISTANCE OF 202.77 FEET TO A 3/4” IRON REBAR NOW SET; THENCE, SOUTH 38 DEGREES 18 MINUTES 00 SECONDS WEST, A DISTANCE OF 21.57 FEET TO A 3/4” IRON REBAR FOUND; THENCE, NORTH 54 DEGREES 34 MINUTES 30 SECONDS WEST, A DISTANCE OF 155.98 FEET TO A 3/4” IRON REBAR NOW SET AT A COMMON CORNER TO SAID WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (PARCEL 17); SAID TECH PARK NON-PROFIT HOLDINGS, INC. (PARCEL 16.1), AND MARION COUNTY ROUTE 250/82 (NASA BOULEVARD) WHICH BEARS, NORTH 48 DEGREES 34 MINUTES 23 SECONDS EAST, A DISTANCE OF 365.87 FEET FROM A WVDOT ROW MARKER; THENCE, LEAVING SAID MARION COUNTY ROUTE 250/82 (NASA BOULEVARD) AND WITH SAID TECH PARK NON-PROFIT HOLDINGS, INC. (PARCEL 16.1), NORTH 48 DEGREES 12 MINUTES 11 SECONDS EAST, A DISTANCE OF 231.55 FEET TO A POINT AT A COMMON CORNER TO SAID WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, INC. (PARCEL 17), SAID MORGAN (PARCEL 20), AND ON A LINE OF SAID TECH PARK NON-PROFIT HOLDINGS, INC. (PARCEL 16.1); THENCE, LEAVING SAID TECH PARK NON-PROFIT HOLDINGS, INC. (PARCEL 16.1) AND WITH SAID MORGAN (PARCEL 20), SOUTH 44 DEGREES 59 MINUTES 21 SECONDS EAST, A DISTANCE OF 348.51 FEET TO THE PLACE OF BEGINNING, CONTAINING 66,218 SQUARE FEET OR 1.52 ACRES, MORE OR LESS. BEING THE SAME REAL ESTATE CONVEYED TO MVB BANK, INC., A WEST VIRGINIA FINANCIAL INSTITUTION, FROM WEST VIRGINIA HIGH TECHNOLOGY CONSORTIUM FOUNDATION, A WEST VIRGINIA NONPROFIT 501 (C)(3)
Ex. A-4 CORPORATION, BY DEED DATED JUNE 4, 2013, OF RECORD IN DEED BOOK 1133, AT PAGE 780. PARCEL THREE: TOGETHER WITH NON-EXCLUSIVE BENEFICIAL EASEMENTS SET FORTH IN AMENDED DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR THE I-79 TECHNOLOGY PARK DATED JUNE 1, 2010, OF RECORD IN BOOK 1083 AT PAGE 147. 301 VIRGINIA AVENUE, FAIRMONT, WV ALL THOSE CERTAIN LOTS OR PARCELS OF REAL ESTATE SITUATE IN THE FAIRMONT DEVELOPMENT COMPANY’S ADDITION TO THE CITY OF FAIRMONT, IN FAIRMONT DISTRICT, MARION COUNTY, WEST VIRGINIA, A MAP OR PLAT OF WHICH SAID ADDITION IS OF RECORD IN THE OFFICE OF THE CLERK OF THE COUNTY COMMISSION OF MARION COUNTY, WEST VIRGINIA, IN DEED BOOK 59, PAGES “A” TO “E” INCLUSIVE, MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS: FIRST PARCEL: BEGINNING AT A STAKE IN THE SOUTHERN LINE OF THIRD STREET AT ITS INTERSECTION WITH THE EASTERN LINE OF AN ALLEY AND RUNNING THENCE WITH SAID LINE OF SAID THIRD STREET SOUTH 53° 11’ EAST 120.00 FEET TO A STAKE AT THE INTERSECTION OF SAID LINE OF THIRD STREET WITH THE WESTERN LINE OF VIRGINIA AVENUE; THENCE WITH SAID LINE OF VIRGINIA AVENUE SOUTH 36° 49’ WEST 190.00 FEET TO A STAKE IN SAID LINE AND CORNER OF PROPERTY NOW OR FORMERLY OWNED BY MOUNTAIN CITY MILL AND POWER COMPANY; THENCE WITH THE LINE OF SAID MOUNTAIN CITY MILL AND POWER COMPANY NORTH 53° 11’ WEST 120.00 FEET TO THE EASTERN LINE OF SAID ALLEY; THENCE WITH THE SAME NORTH 36° 49’ EAST 190.00 FEET TO THE PLACE OF BEGINNING. THERE IS EXCEPTED AND RESERVED FROM THE ABOVE DESCRIBED PARCEL OF REAL ESTATE ALL OF THAT APPLICABLE PART OF A 990 SQUARE FEET CONVEYANCE BY THE CITY OF FAIRMONT TO THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS BY THAT CERTAIN DEED DATED DECEMBER 23, 1975, AND OF RECORD IN THE AFORESAID CLERK’S OFFICE IN DEED BOOK 791, AT PAGE 851, TO WHICH DEED REFERENCE IS HEREBY MADE FOR PERTINENT PURPOSES. SECOND PARCEL: BEGINNING AT A STAKE AT THE INTERSECTION OF FOURTH STREET AND VIRGINIA AVENUE AT THE NORTHWEST CORNER THEREOF, AND RUNNING THENCE ALONG VIRGINIA AVENUE IN A NORTHEAST DIRECTION 160 FEET TO A STAKE; THENCE AT RIGHT ANGLES TO A LINE OF VIRGINIA AVENUE IN A NORTHWEST DIRECTION AT A DISTANCE OF 120 FEET TO AN ALLEY; THENCE ALONG AND WITH SAID ALLEY AND AT RIGHT ANGLES WITH THE LAST NAMED
Ex. A-5 LINE IN A SOUTHWESTERLY DIRECTION A DISTANCE OF 160 FEET TO SAID FOURTH STREET; THENCE WITH A LINE OF SAID FOURTH STREET 120 FEET TO THE PLACE OF BEGINNING. BEING THE SAME REAL ESTATE CONVEYED TO THE MONONGAHELA VALLEY BANK, INC., A WEST VIRGINIA CORPORATION, FROM CLARKSBURG URGENT CARE PROPERTIES, LLC BY DEED DATED DECEMBER 13, 1999, OF RECORD IN DEED BOOK 987, AT PAGE 296. 10 STERLING DRIVE, MORGANTOWN, WV The Land referred to herein below is situated in the County of Monongalia, State of West Virginia, and is described as follows: ALL THAT CERTAIN REAL ESTATE, LYING, BEING AND SITUATE IN THE SIXTH WARD DISTRICT, MONONGALIA COUNTY, WEST VIRGINIA, BEING MORE PARTICULARLY BOUND AND DESCRIBED AS FOLLOWS: PARCEL 1B BEGINNING AT A 5/8 INCH IRON ROD (SET), BEING THE SOUTHWESTERLY CORNER OF PARCEL 2, FROM WHICH A 5/8 INCH IRON ROD (SET) BEARS NORTH 54° 11’ 42” EAST, 132.02 FEET; THENCE SOUTH 54° 11’ 42” WEST, 214.06 FEET TO A 5/8 INCH IRON PIN (SET), SAID PIN BEING ON THE 65’ EASTERLY RIGHT OF WAY OF WEST VIRGINIA ROUTE 7; THENCE WITH SAID RIGHT OF WAY NORTH 46° 41’ 00” WEST, 147.11 FEET TO A POINT; THENCE LEAVING SAID RIGHT OF WAY AND WITH EASEMENT A CENTERLINE NORTH 55° 08’ 05” EAST, 244.44 FEET TO A POINT, SAID POINT BEING ON THE COMMON LINE OF SAID PARCEL 2; THENCE WITH SAID PARCEL 2 SOUTH 34° 45’ 09” EAST, 140.48 FEET TO THE PLACE OF BEGINNING, CONTAINING 32,631 SQUARE FEET OR 0.75 ACRES, MORE OR LESS, AS DETERMINED AND AS SHOWN AS PARCEL 1B ON A MAP OR PLAT OF SURVEY PREPARED BY PATRICK E. GALLAGHER, LICENSE NO. 1352, OF CTL ENGINEERING OF WEST VIRGINIA, INC., DATED NOVEMBER 3, 2011, WHICH SAID MAP OR PLAT OF SURVEY IS OF RECORD IN SAID CLERK’S OFFICE IN MAP CABINET 5 AT ENVELOPE 125A AND MADE A PART HEREOF BY REFERENCE FOR DESCRIPTIVE AND ALL OTHER PERTINENT PURPOSES. THE FOREGOING DESCRIBED REAL ESTATE IS HEREINAFTER DEFINED AS “PARCEL 1B.” TOGETHER THEREWITH THE FOLLOWING EASEMENTS APPURTENANT TO PARCEL 1B:
Ex. A-6 EASEMENT A1 THERE IS FURTHER HEREBY CONVEYED TO GRANTEE, AS APPURTENANT TO PARCEL 1B, A NONEXCLUSIVE EASEMENT AND PERPETUAL RIGHT OF WAY FOR PURPOSES OF INGRESS, EGRESS, REGRESS, AND THE CONSTRUCTION, INSTALLATION, MAINTENANCE, REPAIR, AND REPLACEMENT OF UTILITIES OVER, ACROSS, AND UPON THAT PORTION OF PARCEL 1A REASONABLY NECESSARY TO PROVIDE ACCESS TO PARCEL 1B, WHICH EASEMENT A1 IS LYING, BEING, AND SITUATE IN THE SIXTH WARD DISTRICT, MONONGALIA COUNTY, WEST VIRGINIA, BEING MORE PARTICULARLY BOUND AND DESCRIBED AS FOLLOWS, TO-WIT: BEGINNING AT A 5/8” ROD FOUND ON THE SOUTHEASTERLY LINE OF A 0.64 ACRE TRACT (PARCEL 6) AS CONVEYED TO STERLING HOSPITALITY, LLC BY DEED OF RECORD IN HE OFFICE OF THE CLERK OF THE COUNTY COMMISSION OF MONONGALIA COUNTY, WEST VIRGINIA IN DEED BOOK 1453 AT PAGE 463, SAID ROD STANDING SOUTH 56° 36’ 00” WEST 30.17 FEET FROM A 3/8” ROD FOUND; THENCE LEAVING SAID SOUTHEASTERLY LINE AND WITH A DIVISION LINE BETWEEN PARCEL 1A AND PARCEL 2, SOUTH 34° 45’ 09” EAST 138.91 FEET TO A POINT; THENCE WITH EASEMENT A CENTERLINE SOUTH 55° 08’ 05” WEST 226.44 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF WEST VIRGINIA ROUTE 7; THENCE WITH SAID RIGHT OF WAY NORTH 46° 41’ 0” WEST 16.64 FEET TO A POINT; THENCE LEAVING SAID RIGHT OF WAY LINE NORTH 43° 24’ 29” EAST 12.87 FEET TO A POINT; THENCE WITH A CURVE TO THE RIGHT HAVING A RADIUS OF 75.50 FEET, ARC LENGTH OF 47.89 FEET, AND HAVING A LONG CHORD BEARING AND DISTANCE OF NORTH 61° 25’ 32” EAST 47.09 FEET TO A POINT; THENCE NORTH 70° 26’ 24” EAST 10.42 FEET TO A POINT; THENCE NORTH 55° 08’ 05” EAST 129.65 FEET; THENCE WITH A CURVE TO THE LEFT HAVING A RADIUS OF 9.92 FEET, ARC LENGTH OF 13.14 FEET, AND HAVING A LONG CHORD BEARING AND DISTANCE OF NORTH 11° 06’ 54” EAST 12.20 FEET TO A POINT; THENCE NORTH 34° 45’ 09” WEST 120.00 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF THE SAID 0.64 ACRE TRACT (PARCEL 6); THENCE WITH SAID LINE NORTH 56° 36’ 00” EAST 22.00 FEET TO THE PLACE OF BEGINNING, CONTAINING 5,804 SQUARE FEET OR 0.13 ACRES, MORE OR LESS, AS DETERMINED AND AS SHOWN AS EASEMENT A1 ON A MAP OR PLAT OF SURVEY PREPARED BY PATRICK E. GALLAGHER, LICENSE NO. 1352, OF CTL ENGINEERING OF WEST VIRGINIA, INC., DATED NOVEMBER 3, 2011, WHICH SAID MAP OR PLAT OF SURVEY IS OF RECORD IN SAID CLERK’S OFFICE IN MAP CABINET 5 AT ENVELOPE 125A AND MADE A PART HEREOF BY REFERENCE FOR DESCRIPTIVE AND ALL OTHER PERTINENT PURPOSES. THE FOREGOING DESCRIBED EASEMENT AND RIGHT OF WAY IS HEREINAFTER DEFINED AS “EASEMENT A1.” EASEMENT A2 THERE IS EXPRESSLY RESERVED FROM PARCEL 1B AS APPURTENANT TO PARCEL 1A, PARCEL 2, PARCEL 3, PARCEL 4, AND PARCEL 6, AS SHOWN AND IDENTIFIED ON
Ex. A-7 THE ABOVE-DESCRIBED SURVEY OF RECORD IN SAID CLERK’S OFFICE IN MAP CABINET 5 AT PAGE 125A, THAT NON-EXCLUSIVE EASEMENT AND PERPETUAL RIGHT OF WAY SHOWN AND DETERMINED ON SAID SURVEY AS EASEMENT A2, WHICH EASEMENT A2 IS RESERVED FOR PURPOSES OF INGRESS, EGRESS, AND REGRESS OVER, ACROSS, AND UPON THAT PORTION OF PARCEL 1B REASONABLY NECESSARY TO PROVIDE ACCESS TO SAID PARCEL 1A, PARCEL 2, PARCEL 3, PARCEL 4, AND PARCEL 6, WHICH EASEMENT A2 IS MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS, TO WIT: BEGINNING AT A POINT AT THE CENTERLINE OF EASEMENT A AND NORTHWESTERLY CORNER OF PARCEL 1B DESCRIBED ABOVE, FROM WHICH 5/8” IRON ROD WITH CAP (SET) BEARS SOUTH 34° 45’ 09” EAST, 140.48 FEET; THENCE WITH EASEMENT A CENTERLINE SOUTH 55° 08’ 05” WEST 244.44 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF WEST VIRGINIA ROUTE 7; THENCE WITH SAID RIGHT OF WAY SOUTH 46° 41’ 00” EAST 20.43 FEET TO A POINT; THENCE LEAVING SAID RIGHT OF WAY NORTH 43° 11’ 26” EAST 43.44 FEET TO A POINT; THENCE NORTH 55° 08’ EAST 197.73 FEET TO A POINT, SAID POINT BEING ON THE COMMON LINE OF SAID PARCEL 2; THENCE WITH SAID PARCEL 2 NORTH 34° 45’ 09” WEST 11.01 FEET TO THE PLACE OF BEGINNING, CONTAINING 2,878 SQUARE FEET OR 0.07 ACRES, MORE OR LESS, AS DETERMINED AND AS SHOWN AS EASEMENT A2 ON A MAP OR PLAT OF SURVEY PREPARED BY PATRICK E. GALLAGHER, LICENSE NO. 1352, OF CTL ENGINEERING OF WEST VIRGINIA, INC., DATED NOVEMBER 3, 2011, WHICH SAID MAP OR PLAT OF SURVEY IS OF RECORD IN SAID CLERK’S OFFICE IN MAP CABINET 5 AT ENVELOPE 125A AND MADE A PART HEREOF BY REFERENCE FOR DESCRIPTIVE AND ALL OTHER PERTINENT PURPOSES. THE FOREGOING DESCRIBED EASEMENT AND RIGHT OF WAY IS HEREINAFTER DEFINED AS ‘EASEMENT A2.’ EASEMENT B THERE IS FURTHER HEREBY CONVEYED TO GRANTEE, AS APPURTENANT TO PARCEL 1B, A NONEXCLUSIVE EASEMENT AND PERPETUAL RIGHT OF WAY FOR PURPOSES OF INGRESS, EGRESS, REGRESS, AND THE CONSTRUCTION, INSTALLATION, MAINTENANCE, REPAIR, AND REPLACEMENT OF UTILITIES OVER, ACROSS, AND UPON THAT PORTION OF PARCEL 2 REASONABLY NECESSARY TO PROVIDE ACCESS AND UTILITIES TO AND FOR THE BENEFIT OF SAID PARCEL 1B, WHICH EASEMENT B IS MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS, TO WIT: BEGINNING AT A 5/8” ROD FOUND ON THE SOUTHEASTERLY LINE OF A 0.64 ACRE TRACT (PARCEL 6) AS CONVEYED TO STERLING HOSPITALITY, LLC BY DEED OF RECORD IN SAID CLERK’S OFFICE IN DEED BOOK 1453 AT PAGE 463, SAID ROD STANDING NORTH 56° 36’ 00” EAST 51.91 FEET FROM A RAILROAD SPIKE FOUND; THENCE WITH SAID SOUTHEASTERLY LINE NORTH 56° 36’ 00” EAST 30.17 FEET TO A 3/8” ROD FOUND, SAID ROD BEING A COMMON CORNER OF SAID PARCEL 6 AND
Ex. A-8 PARCEL 3 NOW OR FORMERLY OWNED BY STERLING HOSPITALITY, LLC AS RECORDED IN DEED BOOK 1453 AT PAGE 463; THENCE WITH SAID PARCEL 3 NORTH 78° 15’ 13” EAST 130.19 FEET TO A POINT, SAID POINT BEING THE MOST NORTHERLY CORNER OF PARCEL 2 AND PARCEL 3; THENCE WITH THE DIVISION LINE BETWEEN PARCEL 2 AND PARCEL 3 SOUTH 34° 45’ 09” EAST 19.56 FEET TO A POINT; THENCE LEAVING SAID DIVISION LINE SOUTH 78° 15’ 13” WEST 132.53 FEET TO A POINT; THENCE WITH A CURVE TO THE LEFT HAVING A RADIUS OF 20.60 FEET, ARC LENGTH OF 38.90 FEET, AND HAVING A LONG CHORD BEARING AND DISTANCE OF SOUTH 22° 18’ 47” WEST 33.38 FEET TO A POINT; THENCE NORTH 34° 45’ 9” WEST 37.50 FEET TO THE PLACE OF BEGINNING, CONTAINING 0.07 ACRES, MORE OR LESS, AS DETERMINED AND AS SHOWN AS EASEMENT B ON A MAP OR PLAT OF SURVEY PREPARED BY PATRICK E. GALLAGHER, LICENSE NO. 1352, OF CTL ENGINEERING OF WEST VIRGINIA, INC., DATED NOVEMBER 3, 2011, WHICH SAID MAP OR PLAT OF SURVEY IS OF RECORD IN SAID CLERK’S OFFICE IN MAP CABINET 5 AT ENVELOPE 125A AND MADE A PART HEREOF BY REFERENCE FOR DESCRIPTIVE AND ALL OTHER PERTINENT PURPOSES. THE FOREGOING DESCRIBED EASEMENT AND RIGHT OF WAY IS HEREINAFTER DEFINED AS “EASEMENT B.” ACCESS ROAD IT IS EXPRESSLY ACKNOWLEDGED THAT EASEMENT A1 AND EASEMENT A2 ARE NOT MUTUALLY EXCLUSIVE, BUT RATHER COMBINE TO FORM EASEMENT A (AS DETERMINED AND AS SHOWN AS EASEMENT A ON A MAP OR PLAT OF SURVEY PREPARED BY PATRICK E. GALLAGHER, LICENSE NO. 1352, OF CTL ENGINEERING OF WEST VIRGINIA, INC., DATED JULY 6, 2010, WHICH SAID MAP OR PLAT OF SURVEY IS OF RECORD IN SAID CLERK’S OFFICE IN MAP CABINET 3 AT ENVELOPE 263A AND MADE A PART HEREOF BY REFERENCE FOR DESCRIPTIVE AND ALL OTHER PERTINENT PURPOSES). THE FOREGOING DESCRIBED EASEMENT A1 AND EASEMENT A2 ARE COLLECTIVELY HEREINAFTER DEFINED AS “EASEMENT A. - PURSUANT TO AND WITH THE BOUNDARIES OF EASEMENT A AND EASEMENT B, A PERMANENT ACCESS ROAD IS CONSTRUCTED UPON AND ACROSS PARCEL 1A, PARCEL 1B, AND PARCEL 2 (“ACCESS ROAD”). BORDER EASEMENT NON-EXCLUSIVE BENEFICIAL EASEMENT ENTITLED ‘BORDER EASEMENT’ AS SET FORTH IN DEED RECORDED AUGUST 13, 2012 IN VOLUME 1464, PAGE 460 AMONG THE MONONGALIA COUNTY LAND RECORDS.
EXHIBIT B BASE RENT Lease Year - Initial Term Annual Base Rent Monthly Base Rent 1 (month 1-12) $1,537,368.00 $128,114.00 2 (month 13-24) $1,568,115.36 $130,676.28 3 (month 25-36) $1,599,477.67 $133,289.81 4 (month 37-48) $1,631,467.22 $135,955.60 5 (month 49-60) $1,664,096.56 $138,674.71 6 (month 61-72) $1,697,378.50 $141,448.21 7 (month 73-84) $1,731,326.07 $144,277.17 8 (month 85-96) $1,765,952.59 $147,162.72 9 (month 97-108) $1,801,271.64 $150,105.97 10 (month 109-120) $1,837,297.07 $153,108.09 11 (month 121-132) $1,874,043.01 $156,170.25 12 (month 133-144) $1,911,523.87 $159,293.66 13 (month 145-156) $1,949,754.35 $162,479.53 14 (month 157-168) $1,988,749.44 $165,729.12 15 (month 169-180) $2,028,524.43 $169,043.70
Sch. 10.3-1 SCHEDULE 10.3 IMMEDIATE REPAIRS Site PCR Section # PCR Section Name Item 10 Sterling Drive Morgantown, West Virginia 26505 3.2.6 Site Improvements Wire-brush cleaning, priming, and repainting of the painted metal pole supporting the main sign to repair rusting near the base and peeling paint. 4.3.1 Structural Repair and repainting of the rigid foam bases on select columns at the drive through and repair of one of the column bases at the rear entrance which has an open joint and requires sealing. 4.4.2 Structural Sealing of the gutter seams to prevent gutter leaks. 5.2 Mechanical/ Electrical The cover for the wall-mounted heater in the break room is missing. Repair/ replace. 7 Accessibility Reconfigure the lavatories within the publicly- accessible toilet rooms to be mounted at a height that is ADA-compliant. 100 Nasa Boulevard, Fairmont, West Virginia 26554 4.4.2 Structural The gutter at the outside corner of the drive-through canopy entrance is drooping and appears to hold water. Repair and seal the gutter. 1000 Johnson Avenue, Bridgeport, West Virginia 26330 3.2.2 Site Improvements Reapply asphalt seal coat with limited crack sealing. 5.5.1 Structural Service and re-certify fire extinguisher in elevator equipment room. 7 Accessibility Reconfigure the toilet room in the basement and on the 2nd floor to provide the ADA-compliant minimum clear floor area, lavatory mounted at an ADA-compliant height, installing grab bars and mounting accessories at ADA-compliant heights. 7.0 Accessibility Install ADA-compliant signage at ADA parking spaces.
Sch. 10.3-2 Site PCR Section # PCR Section Name Item 301 Virginia Avenue Fairmont, West Virginia 26554 3.2.3 Site Improvements Sectional replacement of spalling along a crack in the concrete walkway at the northeast corner of the building. 4.4.1 Structural Replace rusting roof fasteners. 7 Accessibility Install ADA-compliant signage at ADA parking spaces. 7.0 Accessibility Reconfigure toilet rooms on the main level to install protection method to protect plumbing under the lavatories against contact and install ADA compliant grab bars.
GUARANTY OF LEASE This Guaranty of Lease (the “Guaranty”) is executed as of December 30, 2024, by MVB FINANCIAL CORP., a West Virginia corporation (together with its successors and permitted assigns, “Guarantor”), in favor of FNLR MVBB LLC, a Delaware limited liability company (“Landlord”) with reference to the following facts: A. MVB Bank, Inc., a West Virginia banking corporation (“Tenant”), entered into that certain Master Lease, dated as of December 30, 2024 (as amended or otherwise modified from time to time, the “Lease”), by and among Landlord and Tenant, pursuant to which Landlord has agreed to lease the “Property” described in the Lease (such property, the “Property”) to Tenant. B. As a condition precedent to the execution and delivery of the Lease by Landlord, Landlord requires that Guarantor unconditionally guaranty the performance by Tenant of its obligations set forth under the Lease. C. Guarantor has a material financial interest in Tenant and expects to derive material financial benefit from the Lease, and Guarantor desires that Landlord enter into the Lease with Tenant. In consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees with Landlord as follows: 1. Guarantor absolutely, irrevocably and unconditionally guarantees to and for the benefit of Landlord and its successors and assigns the punctual and full payment as they accrue and become due of all rents of every kind under the Lease and the full, faithful and timely performance of each and all of the covenants, agreements, obligations, representations, indemnities, warranties and liabilities of Tenant (and/or of Tenant’s assigns and successors to all or any portion of Tenant’s interest in the Lease) under the Lease (each, an “Obligation”, and collectively, the “Obligations”), until all such Obligations have been fully paid, performed and discharged. The liability of Guarantor hereunder shall be for all Obligations owed to Landlord including, without limitation, costs and fees (including, without limitation, actual attorneys’ and experts’ fees and disbursements and court costs that would have accrued under the Lease) and all other Obligations that would have been paid, performed and discharged by Tenant (or Tenant’s assigns and successors to all or any portion of Tenant’s interest in the Lease or the Property) but for the commencement of a case under Title 11 of the United States Code or under any successor statute thereto (the “Bankruptcy Code”), or any other law governing solvency, bankruptcy, reorganization or like proceedings, and other expenses incurred by Landlord in the enforcement of this Guaranty. The Obligations are to be construed in the most comprehensive sense and shall include all covenants, agreements, obligations, indemnities, representations, warranties and liabilities of Tenant, express or implied, under the Lease and shall continue, unaffected by any actual, purported or attempted assignment, transfer or sublease of all or any portion of Tenant’s interest in the Lease or the Property. Notwithstanding the foregoing, only upon any failure to fully pay, perform and discharge any of the Obligations, which failure constitutes a default under the Lease, which default remains uncured beyond any applicable cure period, if any, provided in the Lease (herein called a “Breach”), Guarantor, upon
2 written demand from Landlord, shall fully pay, perform and discharge the Obligation or Obligations in question, and shall pay all damages, losses, costs, expenses (including, without limitation, actual attorneys’ and experts’ fees and court costs) and liabilities that may arise in consequence of the Breach. 2. The obligations of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be affected or impaired by, the following, any or all of which may be taken without the consent of, or notice to, Guarantor nor shall any of the following give Guarantor any recourse or right of action against Landlord, each and all of which are hereby expressly authorized by Guarantor to be undertaken at any time and from time to time by Landlord in its sole and absolute discretion: (a) Any amendment, modification, addition or supplement of or to the Lease; (b) Any renewal, extension or continuation of the Lease or the term thereof, whether pursuant to a written agreement or otherwise, and including without limitation, any holding over by Tenant after the expiration of the term of the Lease, including any renewal or extension term, whether or not consented to by Landlord; (c) Any exercise or non-exercise or delay in the exercise or assertion by Landlord of any right or privilege under this Guaranty or the Lease; (d) Any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other similar proceeding relating to Guarantor or Tenant, or any action taken in respect of Tenant, this Guaranty, the Lease and/or the Property by any trustee, receiver, debtor-in-possession or the like, by Landlord or by any court, in any such proceeding, including, without limitation, any assumption or rejection of the Lease under Section 365 of the Bankruptcy Code, whether or not Guarantor shall have had notice or knowledge of any of the foregoing; (e) Any extension of time or other indulgence granted to Tenant or any waiver with respect to the payment of rents, additional rents and other charges and expenses to be paid by Tenant or with respect to the performance and observance of any other obligations of Tenant under the Lease; (f) Any assignment of the Lease or any subletting of all or any portion of the Property; (g) The acceptance by Landlord of any security (including any real or personal property collateral) for the punctual and full payment of said rents or the punctual and full performance and observance of said Tenant obligations, or the release, surrender, substitution or omission to act, by Landlord with respect to any such security; (h) Any disaffirmance or abandonment by Tenant, any debtor-in-possession or any trustee of Tenant; (i) Any other act or omission to act by Landlord; and (j) Except for any written release duly executed by Landlord, any other matter whatsoever whereby Guarantor would or might be released. 3. Guarantor hereby knowingly, irrevocably, unconditionally and voluntarily waives: (a) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Guaranty;
3 (b) Any right to require Landlord to proceed against Tenant or any other person at any time or to proceed against or exhaust any security held by Landlord at any time or to pursue any other remedy whatsoever at any time; (c) Any defense arising out of the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against the Tenant, whether resulting from any action or election of remedies by Landlord or otherwise; (d) Any defense arising by reason of any invalidity or unenforceability of the Lease or any disability of Tenant, or by any cessation from any cause whatsoever of the liability of Tenant, including, without limitation, (i) any rejection or termination of the Lease under Section 365 of the Bankruptcy Code or (ii) any reduction, diminution or limitation upon or discharge of the liability of Tenant under the Bankruptcy Code; (e) Any defense based upon an election of remedies by Landlord; (f) Any duty of Landlord to advise Guarantor of any information known to Landlord regarding the financial condition of Tenant and all other circumstances affecting the ability of Tenant to perform its obligations under the Lease, as more particularly described in Paragraph 10 below; (g) Any duty of Landlord to give Guarantor notice of any demand by Landlord or any notice of any type or nature under the Lease, including, without limitation, any notice relating to any default by the Tenant under the Lease; (h) Any defense based upon any express or implied amendment, modification, addition or supplement of or to the Lease or of or to Tenant’s obligations under the Lease made without the consent of Guarantor, which consent shall not be required; (i) Any defense based upon the lack of perfection or continuing perfection or failure of priority of collateral security, if any, which may now or hereafter be given for performance of the Obligations; (j) Any defense based upon the failure by Landlord to marshal assets; (k) Any defense based upon any act or omission of Landlord that results in or aids in the discharge or release of Tenant; (l) Any defense based upon any law that provides that the obligations of a guarantor must not be larger in amount nor in other respects more burdensome than that of the principal or that reduces a guarantor’s obligation in proportion to the principal obligation; (m) Any defense based upon any failure of Landlord to file or enforce or compromise a claim in any bankruptcy proceeding; (n) Any defense based upon the avoidance of any lien in favor of Landlord for any reason; (o) Any defense based upon the right to enforce any remedy against any other person;
4 (p) Any defense based upon the right, if any, to the benefit of, or to direct the application of any security held by Landlord, and, until all of the Obligations have been paid and performed in full, all rights of subrogation, any right to enforce any remedy that Landlord now has or hereafter may have against Tenant, and any right to participate in any security now or hereafter held by Landlord; (q) Any defense based upon the benefits or defenses, if Guarantor is entitled to any benefits or defenses, of any or all anti-deficiency statutes or single-action legislation; and (r) Any setoff, defense or counter-claim that Tenant or Guarantor may have or claim to have against Landlord. 4. Until all amounts payable to Landlord under the Lease have been paid in full, Guarantor shall have no right of subrogation and Guarantor waives, to the fullest extent permitted by law, any right to enforce any remedy that Landlord now has or may hereafter have against Tenant. 5. [Reserved]. 6. This Guaranty shall extend to each and every payment to be made and other obligation or condition to be performed or observed under the Lease by Tenant and its successors and assigns. Successive demands may be made upon, and successive actions for the enforcement of such demands may be brought against, Guarantor upon successive defaults in the making of particular payments and the performance and observance of particular obligations or conditions under the Lease, and the enforcement of this Guaranty against Guarantor with respect to any particular payment or obligations or conditions under the Lease shall not operate to exhaust this Guaranty or as a waiver of the right to proceed under this Guaranty with respect to any future default or defaults. 7. Notwithstanding anything to the contrary herein contained in this Guaranty, this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of any or all of the obligations guaranteed hereby is rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be restored or returned by Landlord upon the insolvency, bankruptcy or reorganization of Tenant or if Landlord elects to return such payment or any part thereof in its sole discretion, all as though such payment or application of proceeds had not been made. Without limiting the generality of the foregoing, if prior to any such rescission, invalidation, declaration, restoration or return, this Guaranty shall have been canceled or surrendered, this Guaranty shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of Guarantor in respect of the amount of the affected payment or application of proceeds. 8. [Reserved]. 9. This Guaranty is an irrevocable, continuing guaranty and Guarantor agrees that this Guaranty shall remain in full force and effect until all of the Obligations are fully paid, performed and/or otherwise discharged, regardless of the expiration or earlier termination of the Lease, and regardless of the bankruptcy, reorganization, dissolution or insolvency of Tenant, its successors and assigns, and regardless of any actual, attempted or purported assignment, sublease or other transfer of all or any portion of Tenant’s interest in the Lease.
5 Guarantor further agrees that this Guaranty may not be revoked by Guarantor. If any provision of this Guaranty is held to be invalid or unenforceable, the validity and enforceability of the other provisions of this Guaranty shall not be affected. This Guaranty shall remain in full force and effect notwithstanding future changes of conditions, including any changes in law or invalidity or irregularity in the creation of any of the Obligations. 10. In giving this Guaranty, Guarantor is not concerned with Tenant’s financial condition and hereby knowingly and irrevocably waives any right Guarantor may possess to require Landlord to disclose to Guarantor any information Landlord may now or hereafter possess concerning Tenant’s present or future character, credit, collateral or financial condition. Guarantor assumes the responsibility for being and keeping informed of the financial condition of Tenant and of all circumstances bearing upon the risk of non-payment and nonperformance of the Obligations that diligent inquiry would reveal. 11. No delay or failure by Landlord to execute any remedy against Tenant or Guarantor will be construed as a waiver of that right or remedy. All remedies of Landlord are cumulative. 12. This Guaranty shall be one of payment and performance and not merely of collection. 13. In any action or proceeding brought to enforce the terms of this Guaranty, the prevailing party shall be entitled to recover any and all costs and expenses, including, without limitation, actual attorneys’ fees and court costs, incurred in any such action or proceeding. 14. All notices, requests, concerns, approvals, payments in connection with the Lease, or communications that either party desires or is required or permitted to give or make to the other party under the Lease shall only be deemed to have been given, made and delivered, when made or given in writing and personally served, or delivered via recognized overnight courier service provided a receipt is required, in the United States mail, certified or registered mail, postage prepaid, and addressed to the parties as follows: If to Guarantor, to: MVB Financial Corp. 3000 Swiss Pine Way Morgantown, West Virginia 26501 Attention: Donald T. Robinson With a copy to: Squire Patton Boggs (US) LLP 777 S. Harbour Island Blvd., Suite 420 Tampa, Florida 33602 Attention: Stacy H. Krumin If to Landlord, to: FNLR MVBB LLC c/o Fortress Investment Group 1345 Avenue of the Americas, 46th Floor New York, New York 10105 Attention: Constantine Dakolias With a copy to: c/o Fortress Investment Group 11611 San Vicente Blvd., 10th Floor
6 Los Angeles, California 90049 Attention: William Turner and Chase Romney With another copy to: Dain, Torpy, Le Ray, Wiest & Garner, P.C. 175 Federal Street, 15th Floor Boston, Massachusetts 02110 Attention: Timothy Pecci or to such other address or addresses as either Landlord or Guarantor may from time to time designate to the other by written notice in accordance herewith. Such notices shall be effective on the date of delivery (or, if delivery is refused, on the date of such refusal). Service of process in connection with any legal action or proceeding relating to this Guaranty shall also be deemed properly delivered if delivered and served in any manner permitted by the applicable law of the State of New York or the United States, as the case may be. Landlord or Guarantor may change its address for the purpose of this Guaranty by giving written notice of such change to the other party in the manner herein provided. Unless and until any such notice is given, any notice or other communication sent to the last noticed address as provided herein shall be deemed properly delivered. 15. Guarantor agrees that this Guaranty shall be construed as an absolute, unconditional, irrevocable, continuing and unlimited obligation of Guarantor without regard to the regularity, validity or enforceability of any liability or obligation hereby guaranteed. 16. The right of Landlord to demand and Guarantor’s obligation to pay and to perform fully the Obligations shall not be suspended, abridged or affected in any way whatsoever by the fact that the Obligations or any part thereof are at any time secured by real or personal property or otherwise. With or without notice to Guarantor and without affecting Guarantor’s liability hereunder or with respect to the Obligations hereby guaranteed, Landlord, from time to time, either before, at or after any Breach and whether or not Landlord is under any contractual or equitable obligation to do so, may (a) accept security for the Obligations hereby guaranteed, (b) release or accept other security in exchange or in substitution for collateral, if any, that may be held or any part thereof, (c) accept substitutes for or release Guarantor or any substitutes for Guarantor as party hereto, or (d) subordinate any security interest in any collateral or any portion thereof to the rights of other creditor or creditors. 17. This Guaranty shall continue for the term of the Lease and any extensions or renewals thereof and until all obligations and liabilities of Tenant and its successors and assigns to Landlord under or relating to the Lease have been fully paid or satisfied (subject to reinstatement of the Guaranty as provided in Paragraph 7 above). 18. This Guaranty shall be governed by and construed in accordance with the internal laws of the State of New York. In connection with any suit, action or proceeding brought with respect to this Guaranty, Guarantor hereby irrevocably submits to the exclusive jurisdiction of any Federal or State court in New York County, New York, and Guarantor waives any objections that it may now or hereafter have based upon venue and/or forum non conveniens of any such suit, action or proceeding.
7 19. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 20. This Guaranty or the provisions hereof shall not be modified, amended or waived in any manner unless the same be in writing and signed by Landlord and Guarantor. 21. If there be more than one undersigned Guarantor, each undersigned Guarantor is executing this instrument, and shall be unconditionally liable hereon, jointly and severally. Landlord may make demand upon or pursue any remedies against any one or more Guarantor, whether or not any demand is made upon or any remedies are pursued against any other Guarantor. Each Guarantor expressly agrees that recourse may be had against any and all property of Guarantor, regardless of whether such property constitutes community property, quasi-community property or separate property. 22. Landlord shall have the right, without any consent from Guarantor, to assign this Guaranty, in whole and not in part, in connection with any assignment of Landlord’s rights and obligations under the Lease. Upon the transferee becoming the Landlord pursuant to any such assignment, upon the request of Landlord or such transferee, as the case may be, Guarantor shall execute and deliver an acknowledgment that this Guaranty runs in favor of Landlord. Guarantor may not assign, delegate or otherwise transfer all or any part of its respective rights and/or obligations under this Guaranty without the prior written consent of Landlord. Subject to the restrictions on transfer set forth in the immediately preceding sentence, this Guaranty shall be binding upon, and inure to the benefit of, Landlord and Guarantor and their respective successors and assigns. Any attempted assignment, delegation or transfer by Guarantor in violation of this Paragraph 22 shall be, and is hereby declared, null and void ab initio. 23. Guarantor agrees to deliver all financial reports required to be delivered by Guarantor pursuant to Section 21.22 of the Lease within the time frames set forth therein. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
