LEASE
THIS
LEASE ("Lease")
is made and entered into on this 28th day
of
January 2005, between
THE
XXXXXX X. XXXXX FAMILY LIMITED PARTNERSHIP ("Landlord"),
and BIRMINGHAM
BLOOMFIELD BANCORP., INC. a
Michigan corporation ("Tenant").
1.
Description. Landlord
in consideration of the rents to be paid and the covenants to be performed
by Tenant does hereby lease unto Tenant the following described premises
situated in the
City
of Birmingham, Michigan to wit: 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
(the
"Demised Premises") subject to any state of facts that an accurate survey
may
show, any building
and use restrictions and regulations and any restrictive covenants of record
still in force. The
Demised Premises includes an approximate 8,300 square foot building (the
"Building"), land
and
parking areas located thereon. Landlord shall deliver the Demised Premises
to
Tenant in
broom
clean condition, with all of the prior occupant's personal property removed
therefrom.
2. Lease
Term.
| (a) |
Initial
Term. The
initial term of the Lease shall commence upon the full execution
of this Lease (the "Commencement Date") and provided no event of
default
exists beyond any applicable notice and cure period shall continue
for
nine (9)
months thereafter (the "Initial Term") or such earlier date as
Tenant
exercises its
option to extend the Lease for the Initial Option Term (defined
below).
|
| (b) |
Initial
Option. Landlord
hereby grants Tenant the option to extend the Lease for an
additional period of ten (10) years (the "Initial Option Term")
subject to
the terms
and conditions contained herein. At
anytime during the Initial Term, Tenant
shall have the right to exercise the option contained herein by
providing
written
notice to Landlord at least thirty (30) days prior to the expiration
of
the Initial
Term of its intent to extend the Lease and of the commencement
date of the
Initial
Option Teen.
|
| (c) |
Additional
Options. If
Tenant exercises the Initial Option Term, then Tenant shall .have
the option to extend the Lease for two (2) additional periods of
ten (10)
years
each (each an "Additional Option Term") by providing written to
Landlord
of
its intent to exercise an Additional Option Term at least thirty
(30) days
prior to the
expiration of the then current term of the
Lease.
|
| (d) |
Definitions. "Option
Periods" as used in this Lease shall referred to collectively to
the Initial Option Term and each Additional Option Term to the
extent same
are
exercised. "Term" shall mean the Initial Term and any Option
Periods.
|
3.
Rent. Tenant
hereby agrees to pay to Landlord, at the address of Landlord set forth in
Section 27(g), or at such other place as Landlord may hereafter from time
to
time designate in writing,
Base Rent, payable in monthly installments beginning on the Commencement
Date
and continuing on the same day of each month for the remainder of the Term,
in
accordance with the following
payment schedule:
1
| (a) |
Initial
Term. $11,000
per month.
|
| (b) |
Option
Periods. The
rent payable during the Option Periods shall be:
|
| (i) |
During
the Initial Option Term:
|
|
Year
|
Per
Square Foot
|
Monthly
Amount
|
Annual
Amount
|
|||
|
1
|
$25.00
|
$17,291.67
|
$207,500
|
|||
|
2
|
$25.50
|
$17,637.50
|
$211,650
|
|||
|
3
|
$26.01
|
$17,990.25
|
$215,883
|
|||
|
4
|
$26.53
|
$18,349.92
|
$220,199
|
|||
|
5
|
$27.06
|
$18,716.50
|
$224,598
|
|||
|
6
|
$27.60
|
$19,090.00
|
$229,080
|
|||
|
7
|
$28.15
|
$19,470.42
|
$233,645
|
|||
|
8
|
$28.71
|
$19,857.75
|
$238,293
|
|||
|
9
|
$29.29
|
$20,258.92
|
$243,107
|
|||
|
10
|
$29.87
|
$20,660.08
|
$247,921
|
|
(ii)
|
During
each Additional Option Term, the rent payable under this Lease
shall
be equal to the annual base rent payable in the immediately preceding
year of this Lease increased by two percent (2%) and shall increase
by two (2%) each year thereafter (i.e.
the
rent payable in the first year
of the first Additional Option Term shall be $247,921 x 1.02, or
$252,879
payable in equal monthly
installments).
|
| (c) |
Rental
Adjustment. Rent
for the Initial Option Term and Additional Option Terms
shall be adjusted based on the actual square footage of the Building
as
determined
by Tenant's architect.
|
| (d) |
Late
Charge. If
Tenant fails to pay the rent due under this Lease for more than
five
(5) days after same is due, Tenant shall pay Landlord a late fee
of Twenty
Five
Dollars ($25.00) per day but not to exceed Five Hundred Dollars
($500.00).
|
4.
Tenant
Improvements. Subject
to the obligation of Landlord to provide the tenant improvement
allowance described herein, Tenant, at its sole cost and expense, shall have
the
right
to
improve or alter the Demised Premises in any manner it deems appropriate
for its
intended
use. If Tenant elects to exercise its option to extend the Lease for the
Initial
Option Term, Landlord shall provide Tenant with a tenant improvement allowance
in the amount of
Two
Hundred Forty Nine Thousand Dollars ($249,000.00) (the "Allowance") to be
used
by Tenant
to
improve the interior and/or exterior of the Demised Premises in any manner
Tenant
2
deems
appropriate for its use of the Demised Premises. Landlord shall pay the
Allowance to Tenant
as
follows:
| (a) |
one-third
(1/3) of the Allowance upon submission of paid invoices for material,
labor
or other costs incurred in connection with the alterations and
improvements to
the Demised Premises in the amount of at least
$83,000.00;
|
| (b) |
the
next one-third (1/3) of the Allowance upon submission of additional
paid
invoices for material, labor or other costs incurred in connection
with
the alterations
and improvements to the Demised Premises in the amount of at least
$83,000.00
and no more.
|
|
(c)
|
the
remaining portion of the Allowance upon presentation by Tenant
to Landlord
of
a temporary or final certificate of
occupancy.
|
|
(d)
|
all
payments to Tenant shall be made within fifteen (15) days of Tenant's
written request
and delivery of the required
information.
|
5. Real
Estate Taxes and Assessments.
| (a) |
Initial
Term. During
the Initial Term only, Landlord shall be responsible for the payment
of all real estate taxes, special assessment installments and other
governmental
charges of any kind which are attributable to the Demised Premises
(collectively,
the "Taxes") and which become due during the Initial Term. Taxes
shall
expressly exclude Landlord's estate, gift, successors, Michigan
Single
Business
Tax, income tax or any tax attributed to Landlord as a result of
a
transfer at
the Real Property. Within fifteen (15) days of Landlord's submission
to
Tenant of
evidence of payment of the Taxes, Tenant shall reimburse Landlord
for
one--half
(1/2) of such sum paid. It is the express intention that Landlord
and
Tenant equally
share the Taxes due for 2005.
|
| (b) |
Option
Periods. During
the Option Periods, Tenant shall be responsible for the direct
payment of all Taxes which become due and payable during the Option
Periods. Upon the expiration of the Option Periods, Landlord shall
reimburse Tenant
for any Taxes paid prior to such expiration which are attributable
to
periods
subsequent to the expiration, based on the so-called "due date"
basis with
such
Taxes being treated as if they were paid in advance. Upon
the commencement of the Initial Option Term, the provisions of
Section
5(a) above shall
cease to apply to this Lease.
|
6.
Assignment
and Subletting. Tenant
covenants not to assign or transfer this Lease or sublet all or any part
of the
Demised Premises without the prior written consent of Landlord, whose
consent will not be unreasonably withheld conditioned or delayed. In the
event
of any permitted
assignment or transfer, Tenant shall remain fully liable to perform Tenant's
obligations under
this Lease. Notwithstanding the foregoing, Tenant shall have the right without
Landlord's consent
to assign or transfer this Lease, or sublet any portion of the Demised Premises,
to (a) any entity
which is a parent, subsidiary or affiliate of Tenant; (b) to any entity to
which
is the survivor
of a merger with Tenant or which purchases substantially all of the assets
or
ownership
3
interests
in Tenant; or (c) to any entity that is a national bank in which Xxxxxx Xxxx
is
the president.
7.
Bankruptcy. Tenant
agrees that if the estate created hereby shall be taken in execution
or
by
other process of law, or if Tenant shall be declared bankrupt or insolvent
according to law by a court of competent jurisdiction, or any receiver be
appointed for the business and property of
Tenant, or if any assignment shall be made for the benefit of creditors,
then
and in such event, this
Lease may be canceled at the option of Landlord unless Tenant has same reversed
within sixty
(60) days of such an event. Notwithstanding the foregoing, the provisions
of
Section 25 of this
Lease shall control over this provision.
8.
Right
to Mortgage. Landlord
reserves the right to subject and subordinate this Lease at all
times
to the lien of any mortgage or mortgages now or hereafter placed on the
Landlord's interest
in the. Demised Premises; provided, however, the holder of any such mortgage
must acknowledge
and agree not to disturb Tenant's rights under this Lease in the event of
a
foreclosure
so long as Tenant is not in default hereunder beyond any applicable notice
and
cure period.
Upon reasonable prior notice, Tenant covenants and agrees to execute and
deliver
to Landlord
such further reasonable instruments evidencing such subordination of this
Lease
to the lien
of
any such mortgage provided such instruments provide that Tenant's rights
under
this Lease
will not to be disturbed in the event of a foreclosure so long as Tenant
is not
in default hereunder
beyond any applicable notice and cure period. If there is an existing mortgage
on the Demised
Premises, Landlord shall furnish Tenant with a customary form non-disturbance
agreement
executed by any such mortgage holder.
9.
Use
and Occupancy. It
is
understood and agreed by the parties hereto that the Demised Premises
shall be used and occupied for the construction of improvements to the Demised
Premises
to create a commercial bank, the operation of a commercial bank, for purposes
incidental
thereto and for no other purposes without the written consent of Landlord,
which
consent
shall not be unreasonably withheld, conditioned or delayed. Tenant will not
use
the Demised
Premises for any purpose in violation of any law, municipal ordinance, or
regulation.
10. Obligation
of Tenant. It
is the
obligation of Tenant to obtain occupancy and any other required
permits.
11. Fire.
| (a) |
Initial
Term. If
during the Initial Term, the Demised Premises is damaged or destroyed
by
fire or other casualty, in whole or in part, Landlord shall promptly
repair
such damage to the condition which existed immediately prior to
such
casualty.
The rent and other financial obligations of Tenant under this Lease
shall
be abated on a pro rata basis with respect to the portion of the
Building
rendered untenantable.
Further, all time periods relative to the exercising of the option
to
extend
the Lease for Initial Option Term and the commencement of the Initial
Option
Teen shall be extended for the number of days the Building or any
portion
thereof
is rendered untenantable. If Tenant reasonably determines that
the
Demised
Premises cannot be restored within one hundred (120) days, Tenant
shall
have the right to terminate this Lease by providing written notice
to
Landlord within
thirty (30) days after the date of such
damage.
|
4
| (b) |
Option
Periods. If,
during any of the Option Periods, the Demised Premises is damaged
or destroyed in whole or in part, by fire or any other casualty,
Tenant
will
restore the Demised Premises (to the extent insurance proceeds
are
available) same
to a good and tenantable condition with reasonable dispatch and
the rent
herein
provided shall not xxxxx for any reason unless such damage or destruction
was
a result of Landlord's acts or omissions. Notwithstanding the foregoing,
if such
damage or destruction occurs during the last three (3) years of
any of the
Option
Periods or if the insurance proceeds are insufficient to repair
or restore
the Demised Premises, Tenant shall have the right not to repair
the
Demised Premises but
to terminate the Lease and to pay any insurance proceeds received
to
Landlord.
|
12.
Repairs,
Alterations and Maintenance. Tenant,
at its sole cost and expense, shall be responsible
for the keeping the interior and exterior portions of the Demised Premises
in a
good state
of
repair including without limitation: the
roof,
gutters, heating and air conditioning, maintenance
and operation, front and rear doors, internal and external walls, floors
including tile and
carpeting, plumbing, utilities, ceiling and ceiling fixtures, payment of
all
fees snow removal and
lawn
maintenance, and all repairs and alterations, of every nature, kind and
description.
13. Insurance
and Indemnification.
| (a) |
Tenant
Insurance Requirements. Tenant
shall keep in full force and effect, at its sole
cost and expense, with respect to the Demised Premises, the following
types of
insurance in the amounts specified:
|
| (i) |
During
the entire term,
and
during the portions of the Term Comprehensive
public liability and property damage insurance with
limits of
liability not less than Three Million Dollars ($3,000,000.00)
per occurrence
for bodily injury, personal injury or
death, or property damage.
|
| (ii) |
During
the Option Periods, Tenant, at its sole cost and expense shall
keep
the
All-Risk Insurance (as defined below) in full force and
effect.
|
All
policies of insurance required to be maintained by Tenant under this Lease
shall
be
issued by an insurance company licensed to do business in Michigan and
shall
name Landlord and any other parties in interest designated by Landlord and
Tenant
as
additional insured as their respective interests may appear, and shall
contain
a
provision that the insurer will not cancel, change or fail to renew the
insurance without endeavoring to give Landlord thirty (30) days prior written
notice.
Tenant shall furnish to Landlord certificates of insurance evidencing the
insurance
carried under this Lease within fifteen (15) days of execution for the insurance
required under Section 13(a)(i) and within fifteen (15) days after the
commencement
of the Initial Option Term for the insurance required under Section
13(a)(ii). If Tenant fails to obtain such insurance, Landlord shall have
the
right
to
Landlord obtain such insurance and Tenant agrees that it will forthwith on
demand
pay to the Landlord the cost thereof with interest at seven percent (7%)
per
annum.
5
| (b) |
Landlord
Insurance Requirements. During
the Initial Term, Landlord, at its sole cost and expense, shall
maintain
the All-Risk Insurance in full force and
effect.
|
| (c) |
All-Risk
Insurance Defined. "All
Risk Insurance" shall mean fire and extended coverage
insurance covering the structures located on the Demised Premises
and all
other structural improvements (excluding Tenant's trade fixtures,
furnishings and
equipment) against loss or damage by fire, windstorm, hail, smoke
damage
and vandalism and malicious mischief and such other risks as are
from time
to time
covered under an "extended coverage" endorsement in an amount equal
to
the
full replacement cost of the Building with a commercially reasonable
deductible.
|
| (d) |
Indemnification.
|
| (i) |
Tenant
shall indemnify and hold harmless Landlord, its members, employees,
successors and assigns, from and against all claims, causes,
causes
of action, judgments, liabilities, obligations, losses,
costs and
expenses (including court costs and reasonable attorneys' fees)
arising
from, related to or as a result of: (a) any accident,
injury, death,
loss or damage whatsoever to any person or to the property
of any
person, including the person and property of Landlord
and
its employees, agents, clients, licensees, invitees, contractors
and subtenants, that occurs during the Term, within the
Building
or Premises, and/or (b) any act or omission of Tenant
or any
agent, contractor, officer, employee, subtenant, licensee,
invitee
or client of Tenant, excluding in each case any claims
based
upon or arising out of the intentional acts, negligence
or
willful misconduct of Landlord or any claims based on
any harm
to persons or damage to property caused by Landlord,
its contractors or subcontractors. It is understood and
agreed that
allpersonal property of any kind, nature or description whatsoever,
kept, stored or maintained upon or in the Building shall
be kept,
stored or maintained at the sole risk and responsibility
of Tenant
exclusively. The foregoing indemnity obligations shall
survive the
cancellation or termination of this Lease, and shall be
without
exception, and without the right to seek contribution
from
Landlord.
|
| (ii) |
Landlord
shall indemnify and hold harmless Tenant, its officers,
shareholders, employees, successors and assigns, from and
against all claims, causes, causes of action, judgments,
liabilities, obligations, losses, costs and expenses (including
court costs and reasonable attorneys' fees) arising from,
related to
or as a result of any act or omission of Landlord or any
agent,
contractor, officer, employee, licensee, invitee, excluding
any
claims based upon or arising out of the intentional acts,
negligence or willful misconduct of Tenant or any claims
based on
any harm to persons or damage to property caused by Tenant,
its
contractors or subcontractors. The foregoing indemnity
obligations shall survive the cancellation or termination
of
this Lease, and shall be without exception, and without
the
right to seek contribution from
Tenant.
|
6
| (e) |
Waiver
of Subrogation. Landlord and Tenant, on behalf of themselves and
their respective insurance carriers, hereby release each
other and
their respective agents and employees from any and all
liability to
each other or anyone claiming through or under them by
way of
subrogation or otherwise for any loss or damage to property
caused
by or resulting from risks insured against under fire or
extended
coverage casualty insurance carried by the parties and
in force at
the time of any such loss or damage; provided, however,
that this
release shall be applicable and in force and effect only
with
respect to loss or damage occurring during such time as
the
releasor's policies contain a clause or endorsement to
the
effect that any such release shall not adversely affect
or
impair such policies or prejudice the right of the releasor
to
recover thereunder. Landlord and Tenant each agrees that
it will
request its insurance carriers to include in its policies
such
a clause or endorsement, and will include such a clause
only
so long as it is includable without additional cost, or if there
is
an additional cost, only so long as the other party pays such
additional cost. Each party will notify the other of any such
additional cost, and such other party may, at its election,
pay the
applicable amount.
|
14. Eminent
Domain.
|
(a)
|
If
any portion of the floor area of the Building is condemned or taken
in any
manner,
including without limitation any conveyance in lieu of condemnation,
for
any
public or quasi public use ("Taken"), or if access to the Demised
Premises
is substantially
impaired as a result of any such condemnation, then Tenant shall
have
the right, but not the obligation, to terminate this Lease by the
delivery
of written
notice thereof to Landlord within thirty (30) days after written
notice of
such
taking is delivered to Landlord and Tenant by the condemning authority.
If
Tenant
so elects to terminate this Lease, the Term of this Lease shall
cease and
terminate
as of the date title is vested in the condemning authority. The
whole of
any
award or compensation for any portion of the Demised Premises Taken,
including
the value of Tenant's leasehold interest under the Lease, shall
be solely
the
property of Landlord; provided, however, Landlord shall reimburse
Tenant
for any
leasehold improvement made to the Demised Premises in excess of
the
Allowance.
Tenant is not precluded from seeking, at its own expense, an award
from
the condemning authority for loss of the value of any trade fixtures
or
other personal
property in the Demised Premises, or moving expenses, provided
that the
award
for such claim or claims shall not diminish the award made to Landlord.
In
the event the Demised Premises or any portion are Taken, Tenant
shall have
no claim
against Landlord for the value of any unexpired Terms of this Lease
or
otherwise.
|
7
| (b) |
In
the event of a partial taking of the Demised Premises which does
not
result in a termination
of this Lease, the Lease shall continue in full force and effect
and
there
shall be no reduction in rent.
|
15.
Compliance
with Laws. At
all
times during this Lease, Tenant shall comply with all laws,
orders, regulations and ordinances applicable to its use and occupancy of
the
Demised Premises.
Landlord represents and warrants that as of the date of this Lease, Landlord
has
no knowledge
of any violation of law with respect to the Demised Premises.
16.
Condition
of Premises. Tenant
further acknowledges that it has examined the Demised Premises
prior to the making of this Lease, and knows the condition thereof, and that
no
representations
as to the condition or state of repairs thereof have been made by the Landlord
or his
agent
which are not herein expressed, and the Tenant hereby accepts the Demised
Premises in their
present condition at the date of the execution of this Lease.
17.
Gas,
Water, Heat, Electricity: Tenant
will pay all charges made against said Demised Premises
for gas, water, heat, air conditioning and electricity, and during the Option
Periods shall pay
charges for repairs or replacement thereof, during the continuance of this
lease, as
the
same
shall become due.
18.
Access
To Premises. During
the Initial Term and upon reasonable prior notice to Tenant,
Landlord shall have the right to enter upon the Demised Premises at all
reasonable hours for
the
purpose of inspecting the same. During the Option Periods, any such entry
onto
the Demised
Premises shall be only with the accompaniment of a representative of Tenant.
If
the Landlord
reasonably deems any repairs necessary he may demand that the Tenant make
the
same and
if
same are Tenant's obligation and should Tenant refuse or neglect to commence
such repairs
and complete the same with reasonable dispatch Landlord may make or cause
to be
made such repairs and shall not be responsible to Tenant for any loss or
damage
that may accrue to his business
by reason thereof, and if Landlord makes or causes to be made such repairs
Tenant agrees
that it will forthwith on demand pay to the Landlord the cost thereof with
interest at seven percent
(7%) per annum.
19.
Reentry. In
case
any rent shall be due and unpaid for more than ten (10) days after written
notice to Tenant or if default be made in any of the covenants herein contained
for more than
thirty (30) days after written notice to Tenant, then Landlord shall be
permitted, subject to applicable law, to reenter into, repossess the Demised
Premises and to remove Tenant and each and
every
occupant.
20.
Quiet
Enjoyment. Landlord
covenants that Tenant, on payment of all the aforesaid installments
and performing all the covenants aforesaid, shall and may peacefully and
quietly
have,
hold and enjoy the Demised Premises for the term of this Lease and that Tenant's
quiet enjoyment of the Demised Premises will not be disturbed by Landlord
or
anyone claiming by, through
or under Landlord.
21. Surrender
The
Demised Premises, including the Building, any alterations, additions and
improvements thereto, except movable office furniture, trade features and
Tenant’s personal property, shall remain upon, and be surrendered with the
Demised Premises, and shall be the property of Landlord at the termination
of
this Lease.
8
22.
Remedies
Not Exclusive. It
is
agreed that each and every of the rights, remedies and benefits provided
to
Landlord and Tenant by this Lease shall be cumulative, and shall not be
exclusive
of any other of said rights, remedies and benefits, or of any other rights,
remedies and benefits allowed by law. Notwithstanding
anything to the contrary contained in this Lease, Landlord
shall provide Tenant with at least ten (10) days written notice in the event
of
a monetary
default and at least (30) days written notice in the event of a non-monetary
default prior
to
pursuing any remedy. If Tenant cures any alleged default (or commences such
cure
and diligently
pursues same) during such cure periods, Landlord shall be prohibited from
pursuing any
remedies at law or provided under this Lease.
23. Waiver. One
or
more waivers of any covenant or condition by Landlord shall not be construed
as a waiver of a further breach of the same covenant or condition.
24.
Holding
Over. It
is
hereby agreed that in the event of the Tenant herein holding over after
the
termination or expiration of this Lease, thereafter the tenancy shall be
from
month to month
in
the absence of a written agreement to the contrary.
25.
FDIC
Clause. Notwithstanding
any other provisions contained in this Lease, in the event Tenant
or
its successors or assignees shall become insolvent or bankrupt, or if it
or
their interest under
this Lease shall be levied upon or sold under execution or other legal process
by any depository
institution supervisory authority ("Authority"), Landlord may, in either
such
event, terminate
this Lease only with the concurrence of any receiver or liquidator appointed
by
such Authority, provided, that in the event this Lease is terminated by the
receiver or liquidator, the maximum
claim of Landlord for rent, damages or indemnity for injury resulting from
the
termination,
rejection or abandonment of the unexpired Lease shall be by law no greater
than
an amount
equal to all accrued and unpaid rent to the date of termination.
26.
Attorneys
Fees. If
either
party hereunder commences an action against the other party to enforce
any of the terms of this Agreement, the prevailing party shall be entitled
to
recover its actual
attorney fees and expenses incurred in prosecuting or defending the
action.
27. Miscellaneous.
| (a) |
Authority. Landlord
and Tenant each represent to the other party that the person executing
this Lease on behalf of such party is duly authorized to execute
and
deliver
this Lease, and that each such party has taken all action necessary
to
authorize
the execution and performance of its respective obligations under
this
Lease.
|
| (b) |
Delays. In
the event either party is delayed or prevented from the performance
of
any
of its obligations under this Lease, by reason of strikes, lockouts,
labor
troubles,
inability to procure materials, failure of power, restrictive governmental
laws
or regulations, riots, insurrection, war or other reason not within
the
reasonable
control of such party, then the performance of such act shall be
excused
for the period of the delay, and the period for the performance
of such
act shall be extended for a period equivalent to the
delay.
|
9
|
(c)
|
Recording. Tenant
shall have the right to record a memorandum of this Lease. Landlord
shall
execute such memorandum upon request of
Tenant.
|
| (d) |
Successors. This
Lease shall inure to the benefit of and be binding upon the parties
hereto, their respective heirs, administrators, personal representatives,
successors
and assigns.
|
| (e) |
Severability. If
any provision of this Lease is held by a court of competent jurisdiction
to be invalid, void or unenforceable in any manner, the remaining
provisions of this Lease shall nonetheless continue in full force
and
effect without being impaired or invalidated in any way. In addition,
if
any provision of this Lease may be modified by a court of competent
jurisdiction such that it may be enforced, then said provision
shall be so
modified and as modified shall be fully
enforced.
|
| (f) |
Entire
Agreement. This Lease and the Exhibits attached set forth
all the covenants, promises, agreements, conditions and
understandings between Landlord and Tenant. No alteration,
amendment, change or addition to this Lease shall be binding
upon Landlord or Tenant unless reduced to writing and signed
by each party.
|
| (g) |
Notices. Any
notice, demand, request, consent or other instrument which
may be or
is required to be given under this Lease shall be in writing
and
sent by United States registered or certified mail, return
receipt
requested, bearing adequate postage prepaid, or by overnight
express
courier when such courier can provide evidence of the date
of
delivery, and shall be effective upon delivery or refusal
to accept
delivery. All such notices shall be sent to the following
addresses:
|
| If To Landlord: | Xxxxxx X. Xxxxx Family Limited Partnership | |
| Attn: Xxxxxx X. Xxxxx | ||
| 00000 Xxxxxxx Xxxxx | ||
| Xxxxxxx Xxxxx, XX 00000 | ||
| Summer Residence | ||
| 00000 Xxx Xxxxx | ||
| Xxxxxxxxxx Xxxx, XX 00000 | ||
| If To Tenant: | Birmingham Bloomfield Bancorporation | |
| At the Demised Premises with a copy to: | ||
| Attn: Xxxxxx Xxxx | ||
| 00000 Xxxxxxxx Xxxx | ||
| Xxxxxxx Xxxxx, XX 00000 | ||
Any
party
to this Lease may at any time change the address for notices to that party
by
giving notice
in
this manner.
10
28. Environmental
Laws.
| (a) |
To
Landlord's knowledge, the Demised Premises do not contain Hazardous
Materials
in violation of any Environmental Laws or in excess of generic
residential
cleanup criteria under Part 201 of the Natural Resources and Environmental
Protection Act.
|
| (b) |
Tenant,
its agents, employees, sublessees or assignees, if any, shall not
discharge, release
or dispose of, on, in or under the Demised Premises, any substances
or
materials
which will cause the Demised Premises, or any part thereof, to
be in
violation of any federal, state or local health or safety statute,
ordinance, rule, regulation,
order or decree relating to the environment or imposing liability
or
standards
concerning or in connection with the presence, storage, use, maintenance
and/or removal of asbestos, PCB transformers, oil based products
or
other
hazardous, dangerous or toxic materials, waste or substances (collectively
the
"Hazardous Materials"), including any common law theories based
on
nuisance,
negligence or strict liability (collectively the "Environmental
Laws").
Tenant
shall defend and indemnify Landlord from and against any losses,
claims,
damages,
penalties, liabilities, costs (including cleanup costs) and expenses
(including
reasonable attorneys' fees) resulting from Tenant's, its agents',
employees',
sublessees' or assignees' breach or
violation of
any such
Environmental
Laws during the Term. Tenant represents that Tenant does not and
shall not utilize any Hazardous Materials in connection with their
intended uses
of the Building and Premises except for such Hazardous Materials
which are
used
in compliance with all Environmental
Laws.
|
| (c) |
Landlord
shall defend and indemnify Tenant from and against any losses,
claims,
damages,
penalties, liabilities, costs (including cleanup costs) and expenses
(including
reasonable attorneys fees) resulting from (a) any breach of Landlord
representation
contained in this Section 28; and/or (b) the violation of any Environmental
Law or the presence of any Hazardous Materials located on the Premises
that, in each case, occurred or existed prior to the date of this
Lease.
The
foregoing indemnity obligations shall survive the termination or
cancellation of
this Lease.
|
29. Brokers.
| (a) |
Except
for Xxxxx Xxxxxx and Cumberland Real Estate Advisors (the "Broker"),
Landlord
represents and warrants to Tenant, that there are no claims for
brokerage
commissions
or finder's fees in connection with this Lease as a result of the
contracts,
contacts or actions of Landlord and Landlord agrees to indemnify
Tenant
and hold it harmless from all liabilities arising from an alleged
agreement or
act by Landlord (including, without limitation, the cost of counsel
fees
in connection
therewith and any sums due and owing to the Broker; such agreement
to
survive the termination of this Lease. Tenant
represents and warrants to Landlord
that there are no claims for brokerage commissions or finder's
fees in
connection
with this Lease as a result of the contracts, contacts or actions
of Tenant,
and Tenant agrees to indemnify Landlord and hold it harmless from
all
liabilities
arising from any such claim arising from an alleged agreement or
act by
Tenant
(including, without limitation, the cost of counsel fees in connection
therewith);
such agreement to survive the termination of this
Lease.
|
11
|
(b)
|
Pursuant
to a separate agreement, Landlord has agreed to pay the Broker
the sum
of
Sixty Six Thousand Dollars
($66,000).
|
30.
Security
Deposit. Upon
the
execution of this Lease, Tenant has deposited with Landlord
the sum of Seventeen Thousand Two Hundred Ninety One and 67/100 Dollars
($17,291.67)
(the "Deposit"). The Deposit shall be held by Landlord as
security
for the faithful performance
by Tenant of all of the provisions of this Lease to be performed or observed
by
Tenant.
If Tenant fails to pay rent or other charges due hereunder, or otherwise
defaults with respect
to any provision of this Lease, Landlord may, but shall have no obligation
to
use, apply or
retain
all or any portion of the Deposit for the payment of any rent or other charge
in
default or
for
the payment of any other sum to which Landlord may become obligated by reason
of
Tenant's
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby.
If Landlord so uses or applies all or any portion of the Deposit, Tenant
shall
within thirty
(30) days after demand therefore deposit cash with Landlord in an amount
sufficient to restore
the Deposit to the full amount thereof. If Tenant performs all of Tenant's
obligations hereunder,
the Deposit or so much thereof as had not theretofore been applied by Landlord
shall be
returned, without payment of interest or other increment for its use, to
Tenant
(or, at Landlord's
option, to the last assignee, if any, of Tenant's interest hereunder) at
the
expiration of the
Term
and after Tenant has vacated the Demised Premises.
31.
Landlord's
Contribution. Landlord's
obligation for the Allowance, brokerage commissions,
fees, taxes, and payments of every kind and nature under this Lease shall
be
limited
to Three Hundred Fifteen Thousand Seven Hundred Two Dollars ($315,702.00).
Notwithstanding the foregoing, Landlord shall remain responsible for the
payment
of Taxes under
Section 5(a) and All Risk Insurance under Section 13(b) in excess of this
limitation.
[SIGNATURES
ON NEXT PAGE]
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THIS
LEASE AGREEMENT
was
executed on the day and year first above written.
| LANDLORD: | ||
|
XXXXXX X. XXXXX FAMILY LIMITED
PARTNERSHIP,
a
Michigan limited partnership
|
||
| By: /s/ Xxxxxx X. Xxxxx President of Xxxxxx X. Xxxxx Family Ltd. Partnership | ||
| Xxxxxx X. Xxxxx, General Partner | ||
| TENANT: | ||
| BIRMINGHAM BLOOMFIELD | ||
| BANCORPORATION, a Michigan corporation | ||
| By: /s/ Xxxxxx Xxxx | ||
| Xxxxxx Xxxx, President | ||
13
