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EXHIBIT 10(H)
BRANCH LEASE FOR XXXX SUPERMARKET BRANCH
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") has been made and entered into as of
June 1, 1995, by and between XXXXXXXX'X MARKETS, INC., a Michigan Corporation,
with offices at 000 Xxxx Xxx Xxxxxx, X.X. Xxx 000, Xxxxxxxx, Xxxxxxxx 00000
(Supermarket), and COMMERCIAL NATIONAL FINANCIAL CORPORATION, a Michigan Banking
corporation having its principal place of business located at 000 X. Xxxx Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000 ("Bank").
WITNESSETH:
WHEREAS, Supermarket is the Tenant of certain real estate and
improvements thereon situated in the City of Xxxx, and State of Michigan,
commonly known as the Xxxxxxxx'x - Alma, located at 0000 Xxxxxx Xxxxxx, Xxxx,
Xxxxxxxx ("Store"); and
WHEREAS, Supermarket desires to sublease to Bank certain space in the
Store and Bank desires to lease the space on the terms and conditions stated
below.
IN CONSIDERATION of the mutual promises and subject to the terms and
conditions set forth therein, Supermarket hereby grants to Bank the right to
install, maintain and operate a Financial Service Facility, as defined below,
through this Lease in the Store in accordance with the provisions hereinafter
set forth.
1. DEFINITIONS
When used in this Lease, the following-defined terms shall carry the
definitions which follow them, unless the context clearly indicates to the
contrary:
A. "Common Areas" means all portions of the Property available for
common use and not intended to be leased.
B. "Leased Premises" means that area within the Store containing
approximately 440 net rentable square feet pursuant to Building and Office
Manager Association ("BOMA") standards to be leased by Bank, together with the
appurtenant right to the use, in common with others, of lobbies, parking area,
telephone and electric closets, truck docks, rest rooms, entrances, stairs,
elevators, access ways, platforms, passageways, pipes, ducts, conduits, wires
and appurtenant facilities, and all public portions and facilities of the Store
C. "Property" means the real estate upon which the Supermarket is
located and all improvements constructed or to be constructed, by Supermarket
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thereon commonly known as Xxxxxxxx'x - Midland, located at 0000 Xxxxx Xxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxx (sometimes referred to as the "Store").
D. "Automated Teller Machine" or "ATM" shall mean an electronic
terminal that performs certain banking functions, including dispensing cash,
coupons and traveler's checks, accepting deposits and loan payments, making
transfers between accounts and giving account balances. These terms however,
shall not include point-of-sale systems or other direct debit systems installed
by Supermarket at its check-out lanes.
E. "Financial Service Facility" or "FSF" shall mean a banking facility
staffed with one (1) or more bank employees whose functions include without
limitation, opening new deposit accounts, accepting loan applications and
performing customary teller transactions, such as cashing checks and taking
deposits. An FSF may be equipped with an ATM, safe deposit boxes and a night
depository. An FSF may also offer such other products and services as may be
permitted by applicable law and regulation, including, without limitation,
insurance, investment products and travel agency services.
2. DEMISE OF LEASED PREMISES; TERM; OPTION TO RENEW.
(a) The term of this Lease shall be Five (5) years (the "original
Term"). The beginning date of the Original Term shall be the
date upon which FSF opens for business, but not later than June 1,
1995, unless the opening of the FSF is delayed because of circumstances
beyond the reasonable control of Bank. This date shall be called the
"Commencement Date" and, unless sooner terminated as herein provided,
the Original Term shall expire Five (5) years from the Commencement
Date.
(b) Bank covenants to pay to Supermarket's address set forth below,
rent as follows: (i) during the first through fifth lease years, the
annual rent will be Seven Thousand Five Hundred and Twenty Dollars
($7,520). This yearly rental payment is based upon Twenty Dollars
($20.00) per square foot per year payable in equal monthly installments
of Six Hundred Twenty-Six and 67/100 ($626.67).
(c) Each monthly installment of rent shall be due and payable on the
first day of each and every month during the term hereof except that
the first month's rent shall be paid on the date on which the term of
this Lease shall commence, and rent shall be apportioned for any period
during the term hereof of less than a full month.
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3. RENEWAL OPTION
Supermarket hereby grants Bank the exclusive right and option to renew
or extend this Lease by notice to Supermarket, as hereinafter provided, for two
additional terms of five (5) years each upon and subject to the same terms,
conditions, and provisions as are herein set forth and provided with respect to
the original term. During the first five (5) year renewal term, the annual
rental shall be increased to ________________________($) Dollars, payable in
equal monthly installments of _________________________($) Dollars.
The annual rental during the second five (5) year term shall be
increased to _______________________________($) Dollars, payable in equal
monthly installments of _________________________________($) Dollars.
Notice of intention to exercise any extension period hereunder shall be
given by Bank to Supermarket, in writing, at least one hundred twenty (120) days
prior to the expiration of the Original Term or the immediately preceding
Renewal Term, as applicable.
4. USE OF LEASED PREMISES; SUPERMARKET'S TITLE
ALLOWABLE USE; ENVIRONMENTAL
A. Bank shall have the exclusive right to operate an FSF and ATM within
the store and may provide and promote those financial services which are
typically transacted or conducted by the Bank in operation of its facilities.
Supermarket shall not conduct nor allow any other entity to conduct or offer
competing banking services, including, but not limited to, operating and
servicing of checking and savings accounts, acquiring and servicing loans or
other extensions of credit, including consumer financing, commercial financing,
credit cards and mortgages; trust company functions; operating a safe deposit
box business; issuance and sale of U.S. Savings Bonds and travelers checks; tax
planning and preparation; selling credit life insurance; providing financial
counseling and portfolio investment advice; providing securities brokerage
service; engaging in the sale of annuity and similar products; engaging in title
insurance activities; and providing real estate appraisal services. Supermarket
shall not allow a financial institution other than Bank to advertise in the
Store. Supermarket shall be permitted to provide such service of making change,
cashing checks, verifying checks, selling money orders and conducting point of
sale transactions.
B. Each party shall conduct its business at the Store in a clean and
lawful manner. Each party agrees that it shall not block or restrict the aisles
or passageways of the other party, nor shall either party interfere with the
other party's business.
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C. Bank agrees to open for business in the premises on the
commencement date, and thereafter during the term of this Lease, continuously
use the Premises for the purpose stated in this Lease, carrying on Bank's
business with reasonable diligence.
D. Supermarket represent and warrants to Bank that it is leasing the
Store from Market Development Corporation pursuant to a Master Lease dated
11-01-94. This Lease is subject to the terms and conditions of the Master Lease,
a copy of which will be given to the Bank by the Supermarket upon request
therefore. Said Master Lease with Ray's Shopping Center, Inc. permits the
Supermarket to lease the premises to the Bank hereunder, and the Supermarket has
the right to make this Lease for the original term and any renewal term
aforesaid; that the provisions of this Lease do not conflict with or violate the
provision of the existing agreement between Supermarket and third parties; that
the Certificate of Occupancy for the Store will allow Bank to use the Leased
Premises for the purposes set forth above; that the Leased premises and Common
Areas and the uses thereof for the purposes specified in this Lease are, or will
be at the commencement of the Original Term, in conformity with all applicable
federal, state, local and other legal requirements including, without
limitation, the Americans with Disabilities Act of 1990, applicable
environmental legislation, zoning and planning ordinances, and all applicable
restrictions, if any. These representations and warranties shall remain in full
force and effect throughout the Original Term and any Renewal Term, and
Supermarket shall indemnify and hold Bank harmless from any and all costs,
including attorneys' fees, in connection with a breach of said representations
and warranties.
E. Supermarket represents and warrants that there is no Hazardous
Material on the Property or in the Store, including its interior systems or
structure. "Hazardous Material" shall mean: (i) asbestos or asbestos containing
material, (ii) polychlorinated biphenyl in concentrations greater than 50 parts
per million and (iii) any other material or substance, whether solid, gaseous or
liquid, which may pose a present or potential hazard to human health or the
environment including (1) hazardous waste identified in accordance with Section
3001 of the Federal Resource Conservation and Recovery Act of 1976, as amended,
and (b) hazardous waste or material identified by regulation of any governmental
authority regulating environmental or health matters. In the event that any such
Hazardous Material is present in the Property or the Store, Supermarket shall,
at its own cost, (i.e., this is not an Operating Expense), in accordance with
applicable laws and regulations remove such Hazardous Material and restore the
Premises and Store to its conditions prior to Supermarket's removal of the
Hazardous Material. There shall be an abatement or adjustment of Rent for any
period that Bank is restricted in its use of the Leased Premises as a result of
the presence of Hazardous Material therein or as a result of remedial measures
in respect thereto taken by Supermarket.
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F. Bank shall have the option, in its sole discretion, to have a
qualified environmental consultant of its choice perform testing, which may
include invasive testing such as the installation of soil borings and/or monitor
xxxxx, at its own expense, to further assess the environmental condition of the
Property and Store at any time prior to the Commencement Date. If the results of
such testing are unsatisfactory to Bank in Bank's sole discretion, Bank shall
notify Supermarket of said results within ten (10) days. Bank shall thereafter
have the option to declare this Lease null or void.
G. Supermarket shall indemnify, defend and hold harmless the Bank, its
agents, employees, officers, directors, affiliates, assigns and/or contractors
from and against any and all loss, liability, suits, fines (both civil and
criminal), damages, judgments, penalties, claims, charges, costs and/or expenses
(including actual attorneys fees) imposed on, incurred by or otherwise suffered
as a result of any claim made by any party whatsoever, public or private,
including the Bank itself, arising from the environmental condition of the
Property unless such condition is caused by Bank. This indemnity shall survive
the termination by any means of this Lease and shall not require a third party
claim to trigger by discovery or damage, contamination, loss or expense incurred
by Bank itself.
H. Bank is not and shall not be considered an operator of the property
for purposes of determining environmental liability. Bank has no authority to
and does not control the subsurface or air space of the property. Supermarket is
the operator of the property for any purpose encompassed by this provision.
I. Supermarket shall provide to Bank, prior to the Commencement Date, a
copy of all its environmental audits of the Property and Store.
5. POSSESSION
Bank shall have access to the Leased Premises at least Sixty (60) days
prior to the Commencement Date of the Lease for Bank to construct the FSF, to
utilize the premises for on-site training of its employees and to install its
communication systems, furniture and equipment. Such access shall be under all
the terms and conditions of this Lease except for the obligation to pay rent.
Supermarket will cooperate with Bank in allowing the type of access to the
Leased Premises which will allow bank to construct its FSF within the
Supermarket building.
It is anticipated that the Commencement date will be approximately June
1, 1995. If possession of the Leased Premises for Bank's use as contemplated in
Section 4 above, shall not be delivered by the Supermarket to Bank by June 1,
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1995, Bank, at its option may terminate this Lease by and upon written notice to
Supermarket.
6. QUIET ENJOYMENT
A. Supermarket covenants and agrees with Bank that upon Bank's paying
the Rent and observing and performing all the material terms, covenants and
conditions to be performed and observed hereunder, Bank may peaceably and
quietly enjoy the Leased Premises.
B. All persons employed by Bank in or about, or in connection with, the
operation of the FSF shall be Bank's employees for all purposes under this
Agreement. Bank's employees and agents and employees of companies which service
the FSF who are not Bank employees or agents shall be granted access to the
Store for the purpose of servicing, maintaining and otherwise performing
services in connection with the FSF. Supermarket agrees to cooperate with Bank
in providing access to the Premises during periods of time the Store may not be
open for business.
C. Bank shall, at its own cost and expense, maintain worker's
compensation coverage, unemployment compensation coverage and any other
insurance which may be required by law with respect to its employees.
D. Employees of Bank, while working at the FSF, shall be entitled to
use the toilet facilities and break-room in the Store provided by Supermarket
for the convenience of Supermarket employees.
E. Employees of Bank, while working at the FSF, shall be permitted to
park their automobiles in spaces designated by Supermarket for parking by
Supermarket employees.
F. The Supermarket grants to Bank the right to have Bank's employees
conduct promotional activities in the aisles of Supermarket's supermarket in
which the Leased Premises is located so long as the promotional activities do
not interfere with the ability of Supermarket's customers to conduct their
shopping activities in the Supermarket. The Supermarket acknowledges that such
promotional activities are extremely important to the success of the Bank's
operation of its FSF in the Store. The Store Manager and the FSF Manager will
coordinate special promotional campaigns. All in-store promotional campaigns
shall be conducted by the Bank in a professional and courteous manner, and shall
not unreasonably interfere with Supermarket's conduct of its business at the
Store.
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G. Bank shall have access to intercommunications systems ("Intercom")
within the Store. The use of such intercom shall be coordinated between the
Store Manager and the FSF Manager.
H. Supermarket and Bank may advertise the existence and location of
the FSF in such media and in such manner as each deems appropriate.
I. Supermarket shall maintain the Store free of all ads, fliers and
signs that might prohibit or unreasonably hinder the operation of Bank's
business within the Premises or which might prohibit or hinder viewing through
or into the Premises.
J. Supermarket shall maintain the Store free and clear of any sale
items, fixtures, barriers, signs or other obstructions that would materially
inhibit the ingress to, and egress from the Premises, and shall, in all events,
keep the Store free and clear of all items within a reasonable distance from the
Teller counters in the FSF.
7. USE, MAINTENANCE AND CONTROL OF COMMON AREAS
Supermarket hereby grants to Bank the nonexclusive right to use the
Common Areas for the purposes for which they were designed. Supermarket shall
maintain and operate the Common Areas.
8. USE, MAINTENANCE AND CONTROL OF COMMON AREAS
A. Bank shall, at all times during the initial and any renewal term of
this Lease, put, keep, and maintain in good repair and in an ordinary condition
all portions of the Leased Premises and shall be responsible for the expenses of
housekeeping of the Leased Premises, including janitorial services for the FSF.
Supermarket shall furnish, at its sole cost and expense, air conditioning, heat,
and electricity to the Leased Premises and the Common Areas and in addition
shall furnish to the Leased Premises, at its sole cost and expense the HVAC
units and any utility lines to the Leased Premises. Bank will provide all
necessary electrical conduits, communication conduits, wiring and communication
services (herein "Special Utility Services") required in connection with the
operation of Bank's banking services. The cost of installation of the Specialist
Utility Services, hardware and services is to be paid by the Bank. Installation
of the Special Utility Services is to be coordinated with the Supermarket to
insure minimum disruption of the Supermarket's business. When the Bank vacates
the Leased Premises, all Special Utility Services located above the ceiling
elevation are to be abandoned by Bank. Subject to the provisions of the C. of
this Section, Supermarket shall not be in default hereunder by reason of (1) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services
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when such failure or delay is caused by accident or any condition beyond the
reasonable control of Supermarket or by the making of necessary repairs or
improvements to the Leased Premises or the total Store; or (3) so long as the
condition is generally prevailing and does not arise from any default by
Supermarket, the limitation curtailment, rationing or restrictions on use of
water, electricity, gas or any other form of energy serving the Leased Premises
or the Store. Supermarket shall use its best efforts to diligently remedy any
interruption in the furnishing of such services.
B. Supermarket, at its sole cost and expense, shall maintain, in
condition and repair, consistent with that of other first-class buildings,
(including replacement, when necessary, to maintain such standards), the Store
and the Common Areas, including, without limitation, the plumbing, electrical,
HVAC and other utility facilities servicing, the Store and the Leased Premises;
the structural components of the Store, including, without limitation, footings
and foundations, bearing and exterior walls, subflooring and roof, and fire
sprinkler system which are a part of and/or service the Leased Premises. Such
maintenance and repair shall include, but not be limited to periodic painting of
the Store's exterior and interior public areas, replacement of carpeting in the
public areas, and the maintenance and cleaning of all exterior windows.
Supermarket shall maintain or cause to be maintained, the parking area,
sidewalks, curbs and passageways and driveways and keep the same in a clean and
orderly condition, free of rubbish, snow, ice unlawful obstructions.
C. Supermarket shall be obligated to make repairs of which it does not
have notice, only after Bank has given Supermarket notice of the need for the
repair and only if the repair was not caused by the negligence or willful act of
Bank or its agents, employees, invitees or licensees. Bank shall also be
responsible for all repairs or replacement occasioned by the negligence or
willful act of Bank or its agents, employees, invitees or licensees.
9. PREPARATION OF LEASED PREMISES
A. Bank, at its sole cost and expense, shall furnish all fixtures
equipment and furnishings which it deems necessary or desirable for FSF
operations and shall pay any and all costs of modification of the Store for the
installation of its fixtures, equipment and furnishings. Bank shall not make any
modification or attach any substantial fixtures or equipment without
Supermarket's prior written approval, which shall not be unreasonably withheld.
Supermarket consents to all work to be completed by Bank at its own expense, as
described on Exhibit C, attached hereto ("Bank's Work").
B. If the Bank's plans for improvements (the FSF) have not been
finalized at the time of the execution of this Lease, Bank shall, within thirty
(30) days hereof, submit to Supermarket plans for all improvements proposed,
including
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without limitation, construction materials, colors, fixtures, lighting, signing
and graphics. Supermarket agrees, within fifteen (15) days after receipt of the
plans from Bank, to give Bank written approval, disapproval or approval with
conditions to such plans. In the event Supermarket fails to so notify Bank, in
writing, within the fifteen (15) day period, such plans shall be construed as
being approved as submitted. If Supermarket refuses to approve plans, Bank shall
have the right to terminate this agreement with no further obligation with
return of any amounts paid to date of termination.
C. Supermarket expressly waives its right to a lien upon any and all
fixtures, machinery or equipment installed or to be installed on the Premises by
or through Bank for the satisfaction of any cause which may accrue to
Supermarket under the provisions of this Lease. Supermarket further agrees to
execute any documents necessary to evidence said waiver as may be required from
time to time by third parties from which Bank leases such fixtures, machinery or
equipment.
10. COVENANT AGAINST LIENS
A. Bank expressly covenants and agrees that it will during the Original
Term and any Renewal Term hereof, promptly remove or release, by the posting of
a bond or otherwise, as required or permitted by law, any lien attached to or
upon said Leased Premises or any portion thereof by reason of any act or
omission on the part of Bank, and hereby expressly agrees to save and hold
harmless the Supermarket from or against any such lien or claim of lien. In the
event any such lien does attach, or any claim of lien is made against said
Leased Premises which is occasioned by any act or omission upon the part of
Bank, and shall not be thus released within sixty (60) days after notice
thereof, Supermarket, in its sole discretion (but nothing herein contained shall
be construed as requiring it to do so) may pay and discharge the said lien and
relieve the Leased Premises from any such lien, and Bank agrees to pay and
reimburse to Supermarket upon demand for or on account of any reasonable expense
which may be incurred by Supermarket in discharging such lien or claims.
Supermarket shall immediately contact Bank if there is any claim of lien and
ascertain if there is reasonable cause for said lien. Nothing in this Lease
shall require Bank to remove or release any lien(s) which may attach to said
Leased Premises or any portion thereof by reason of Supermarket's act or
omission.
B. Supermarket covenants and agrees that at the Commencement Date, the
said Leased Premises shall be free and clear of all liens and charges of any
kind or nature with the exception of the master Lease and any master mortgage
and Supermarket further covenants and agrees that Supermarket shall protect,
save and hold harmless Bank from any such liens and charges against the Leased
Premises.
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11. ALTERATIONS BY BANK
A. Except as permitted by Section 9 above, Bank shall not make any
alterations, improvements, additions or physical changes ("Alterations") to the
Leased Premises without the prior written consent of Supermarket, such consent
not to be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Bank shall have the right to make Alterations, the costs of which do
not exceed Twenty Five Thousand and 00/100 Dollars ($25,000.00) without
Supermarket's consent, provided Bank complies with all applicable laws and
furnishes Supermarket with a copy of the plans indicating the work to be done.
12. SIGNS; BUILDING IDENTIFICATION
Supermarket shall permit Bank to place signs identifying its operations
inside the Store at locations to be agreed upon by the parties. Bank will submit
to Supermarket for its approval, a signage package detailing the appearance and
size of all signs to be installed. Exterior signs at such dimensions as
Supermarket and Bank may agree upon may be permitted only upon the consent of
Supermarket, its Supermarket, if needed, and compliance with all local
ordinances and regulations. Supermarket agrees to cooperate with Bank in
obtaining all necessary approvals from third parties with respect to such signs.
Supermarket's approval under this paragraph shall not be unreasonably withheld
or delayed.
13. APPROVALS
A. Supermarket agrees to cooperate with and assist Bank in obtaining
any necessary approvals and permits in connection with construction,
installation and operations of the FSF.
B. Notwithstanding any other provision hereunder, this Agreement is
subject to and conditioned upon the receipt by Bank of regulatory approval to
operate the FSF and any local governmental approvals, including zoning, to allow
the conduct of the Bank's business activities and the FSF at the Store. If said
approvals are not obtained, then the Bank shall be entitled to terminate this
Lease upon written notice to Supermarket. Bank agrees to use reasonable efforts
to obtain all such necessary approvals.
C. This Lease is contingent upon the Supermarket/Bank obtaining from
Market Development Corporation, written consent allowing the Bank to operate its
FSF upon the Leased Premises; and in obtaining any other consents necessary from
the Master Landlord as required by the Master Lease with Market Development
Corporation dated 11-01-95. Supermarket shall use its best efforts to obtain
such consent and if all such written consents are not
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obtained within thirty (30) days from the date of execution of this Lease
Agreement, Bank shall have the option to terminate this Lease upon written
notice to the Supermarket prior to the Commencement Date.
14. CONDITION OF LEASES PREMISES; REPAIRS
Bank shall, at all times during the Term hereof and at Bank's sole cost
and expense, repair any damage which it does to the Leased Premises and every
part thereof, including all improvements and fixtures, whether installed by
Supermarket or Bank, except for ordinary wear and tear, earthquakes, casualty,
acts of God or the elements and at the end of the Term of this Lease, Bank shall
surrender the Leased Premises to Supermarket in the same condition as received,
except as described in this paragraph above or covered by Supermarket's repair
obligations.
Supermarket shall, at its expense, maintain the Store in good condition
and repair. Without limiting the Supermarket's obligation to maintain and
repair, Supermarket specifically agrees at its expense:
A. To replace any windows damaged other than by the fault of Bank;
B. To repaint those portions of the Leased Premises bearing a painted
surface as requested by Bank, but not more often than once every
five (5) years during the Term of this Lease;
C. To retain a maintenance staff for the making of minor repairs and
adjustments; and
D. To provide and replace light bulbs and fluorescent bulbs in
ceilings as needed.
Supermarket shall keep and maintain the roof, exterior walls (including
exterior window glass), structural floor slabs, columns, elevators, public
stairways, corridors and lobbies, lavatories, equipment and systems, including
plumbing, electrical, security, and heating, ventilating and air conditioning,
and the common facilities of the Store and any associated Common Area and
parking spaces in first class condition and repair and in compliance with all
applicable laws, codes and regulations. In particular, all Store systems and
equipment shall be repaired by competent repairmen, and serviced, inspected and
maintained in accordance with good business practice.
Bank shall have the right, at its cost and expense, to install a
security system for the Leased Premises and shall have the right to remove the
security system at the termination of this Lease or any extension thereof.
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15. DESTRUCTION FIRE OR OTHER CAUSE
A. If the Store shall be totally destroyed by fire, wind, or other
casualty, or the casualty exceeds fifty percent (50%) of the replacement cost of
the Store as determined by a mutually acceptable insurance adjuster, then in
either event, either Bank or Supermarket may terminate this Lease by giving the
other written notice of its election to terminate this Lease, not more than
thirty (30) days following the date of such damage or destruction. In the event
of partial destruction (less than 50% of the replacement Store cost), or if
destruction is greater but neither Supermarket or Bank elects to terminate this
Lease, said Store shall be restored and repaired by Supermarket. The Rent for
the Leased Premises shall be abated during the period of restoration and repairs
if the Leased premises is unusable by Bank for the purpose set forth in this
Lease.
B. If the Leased Premises are partially damaged or rendered partially
unusable by fire, earthquake or other casualty, the damages hereto shall be
promptly repaired by and at the expense of Supermarket and the Rent, until such
repair shall be substantially completed, shall be apportioned from the date
following the casualty according to the part of the Leased Premises which is
usable.
C. If the Leased Premises are totally destroyed or rendered
substantially unusable, as determined by Bank in its sole discretion, by fire,
earthquake or other casualty, then Bank, at its option, may either terminate
this Lease or elect that the Rent shall be paid up to the time of the casualty
and thence forth shall cease until the date which, in Bank's sole judgment, the
Leased Premises may be used by the Bank for the purpose set forth in this Lease.
16. EMINENT DOMAIN
If all or any part of the Leased Premises or the Store or a material
portion of the Common Areas shall be taken or condemned by any competent
authority for any public use or purpose, or if the same shall be sold by
Supermarket to any public agency or authority in lieu of condemnation, the Term
shall, at the option of Bank, end as of the date of the actual taking or sale,
but Bank's obligations hereunder shall terminate on the date the condemning
authority takes possession of all or such portion of the Leased Premises, the
Store, or such material portion of the Common Areas. In such event, Bank may
terminate this Lease by written notice to Supermarket within ten (10) days after
Supermarket shall have given Bank written notice of such taking, or in the
absence of such notice from Supermarket, within ten (10) days after the
condemning authority shall have taken possession. If Bank does not so terminate
this Lease, it shall remain in full force and effect as to the remaining portion
of the Leased Premises, except that Bank's Rent shall be reduced based on the
proportion that the area taken bears to the total Leased Premises. In such
event, Supermarket
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shall, to the extent of compensation received by Supermarket in connection with
such condemnation of the Leased Premises, the Store or the Common Areas, repair
any damage to same caused by such condemnation, except to the extent Bank has
been reimbursed therefore by the condemning authority. In either case, there
shall be no apportionment to Bank of any portion of the award or damages for
such taking; provided, however, that Bank shall be entitled to any funds awarded
it for moving expenses or business interruption. In the event of a termination
pursuant to this Section 16, Rent shall be prorated to the date of such taking.
17. INDEMNIFICATION
A. Bank shall indemnify Supermarket against and hold it harmless from
any and all liabilities, obligations, damages, penalties, claims, costs and
expenses, including reasonable attorneys' fees, paid or incurred as a result of
or in connection with (i) the carelessness, negligence or improper conduct of
Bank, any of its subtenants, or any of its agents, contractors, employees,
customers, invitees, or licensees, or (ii) any breach by Bank, and its
subtenants, or any of its agents, contractors, employees, customers, invitees of
licensees, or any covenant or condition of this Lease.
B. Supermarket shall indemnify Bank against and hold it harmless from
any and all liabilities, obligations, damages, penalties, claims, costs and
expenses, including reasonable attorneys' fees, paid or incurred as a result of
or in connection with (i) the carelessness, negligence or improper conduct of
Supermarket, or any of its agents, contractors, employees, customers, invitees,
or licensees, or (ii) any breach by Supermarket, or any of its agents,
contractors, employees, customers, invitees or licensees, of any covenant or
condition of this Lease.
18. INSURANCE
A. Bank shall secure and maintain in force during the Term of this
Lease Commercial general liability insurance with a combined single limit for
bodily injury and property damage in an amount not less than One Million Dollars
($1,000,000) per occurrence. Bank's general liability insurance policy shall
insure the performance by Bank of the indemnity agreement set forth in Section
17, and shall be endorsed to provide that Supermarket is named as additional
insured. Bank shall have the option to self-insure its insurance obligations
under this Lease.
B. Supermarket will maintain at all times during the terms of this
Lease:
(i) All risk or comprehensive peril insurance in an amount not less
than the actual replacement costs (exclusive of foundations and
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excavations) of the Store as calculated annually. Bank shall be named as an
additional insured and the insurer shall acknowledge acceptance of the mutual
waiver of claims by Supermarket and Bank set forth in this Section 18 below. In
the event that Bank obtains insurance on the store, such insurance shall be
excess and not contributing with insurance maintained by the Supermarket. In the
event Supermarket fails to comply with such requirements, Bank may obtain such
insurance and deduct the premium from the next rent payment due.
(ii) Commercial general liability insurance insuring against damage
occurring in, on or about the Store and Common Areas in such an
amount as are customary for properties comparable to the building,
but in no event in an amount less than One Million Dollars
($1,000,000) combined single limit, per occurrence. Supermarket's
commercial general liability insurance policy shall insure the
performance by the Supermarket of the indemnity agreement set
forth in Section 17. Bank shall be named as an additional insured
in Supermarket's public liability insurance policy.
C. Notwithstanding anything to the contrary contained herein, each of
the parties hereto releases the other Store, to the extent of each party's
insurance coverage, from any and all liability for any loss or damage which may
be inflicted upon the property of such party even if such loss or damage shall
be brought about by the fault or negligence of the other party, or other
tenants, or their agents, employees or assigns; provided, however that this
release shall be effective only with respect to loss or damage occurring during
such time as the appropriate policy of insurance shall contain a clause to the
effect that this release shall not affect the policy or the right of the insured
to recover thereunder.
The provisions of this Section 18 shall survive the termination or
earlier expiration of the Term of this Lease with respect to any damage, injury,
or death occurring prior to termination.
19. DEFAULT; REMEDIES
A. Default of Bank
The happening of any one or more of the following events shall
constitute an event of default hereunder by Bank.
(i) Non-payment by Bank when due of any Rent due hereunder and such
non-payment shall continue for a period of fifteen (15) days after
written notice thereof from Supermarket; or
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(ii) Non-observance or non-performance of any other covenant,
obligation, condition or requirement imposed upon Bank by this
Lease and the continuation of such non-performance or non-
observance of a period of thirty (30) days after written notice
thereof from Supermarket to Bank except that in case of any
default relating to the condition or maintenance of the Leased
Premises there shall be excluded from the calculation of such
period of thirty (30) days, periods of unavoidable delays,
including, but not limited to, delays due to strikes, Acts of
God, governmental restrictions, unavailability of labor or
materials, enemy action, civil commotion, fire, unavoidable
casualties or causes beyond the control of Bank, and period
during which Bank shall be diligently proceeding to cure such
default to the end it shall be cured expeditiously and without
delay.
B. Supermarket's Remedies Upon Default
In the event of the uncured default of Bank, Supermarket may:
(i) Cancel and terminate this Lease by notifying Bank of
Supermarket's election of this remedy and upon giving such
written notice this Lease will cease and terminate; or
(ii) Supermarket may be appropriate legal proceedings require Bank to
specifically perform its covenants and obligations hereunder; or
(iii) Supermarket may relet said Leased Premises or any part thereof
as agent for Bank and receive the rent therefore and Bank shall
pay all of Supermarket's reasonable expenses in connection with
such reletting, including the expenses of keeping said Leased
Premises in repair, brokerage commissions, concessions to Bank
or other expenses that Supermarket may incur, and Bank shall be
liable for any deficiency, which deficiency may be recovered
from time to time. Supermarket shall actively attempt to relet
the Leased Premises in order to mitigate the damages of
Supermarket.
(iv) Supermarket may recover by appropriate legal proceedings, if
necessary as liquidated and agreed current damages the Rent and
other sum payable to Supermarket by Bank under the Term of this
Lease up to and including the date of termination, of what would
have been the Original Term or applicable Renewal Term in the
absence of termination, expiration, default or repossession.
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C. Default of Supermarket
The happening of the following event shall constitute an event of
default hereunder by Supermarket:
(i) Non-observance or non-performance of any covenant, obligation,
condition or requirement imposed upon it by this Lease,
including, but not limited to, presence of Hazardous Material on
the Property, and the continuation of such non-performance or
non-observance for a period of thirty (30) days after written
notice thereof from Bank to Supermarket except that in case of
any default relating to the condition or maintenance of the
Leased Premises, the Building or Common Areas, there shall be
excluded from the calculation of such period of thirty (30)
days, periods of unavoidable delays, including, but not limited
to, delays due to strikes, Acts of God, governmental
restrictions, unavailability of labor or materials, enemy
action, civil commotion, fire, unavoidable casualties or causes
beyond the control of Supermarket, and period during which
Supermarket shall be diligently proceeding to cure such default
to the end it shall be cured expeditiously and without delay.
D. Bank's Remedies Upon Default
In the event of an uncured default of Supermarket, Bank may:
(i) Perform such obligations of Supermarket and deduct the
reasonable costs of completing such obligations from future
Rent; or
(ii) By appropriate legal proceedings, require Supermarket to
specifically perform its covenants and obligations hereunder; or
(iii) Cancel and terminate this Lease by notifying Supermarket of
Bank's election of this remedy and upon giving such written
notice this Lease will cease and terminate.
E. Remedies Are Cumulative
The remedies as given in this Lease to Supermarket and Bank are
cumulative and shall be in addition to all other remedies now and hereafter
existing, whether in law, at equity, or by statute. No waiver by the Supermarket
or Bank of any default or breach of any covenant, condition or stipulation
herein contained shall be regarded as a waiver of any subsequent default or
breach of the same or of any other covenant, condition or stipulation hereof.
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F. Expense of Enforcement
In the event any legal proceedings arise under or in connection with
this Lease, the prevailing party shall be awarded costs, reasonable attorneys
fees and reasonable expert witness fees incurred in connection with such
proceedings.
20. TERMINATION: SURRENDER OF POSSESSION
A. Upon the expiration or termination of this Lease, Bank shall:
(i) Restore the Leased Premises to its condition at the beginning of
the Original Term (other than any Bank's work), ordinary wear
and tear excepted, remove all of its personal property and trade
fixtures from the Leased Premises (including, at its option the
FSF) and the Property and repair any damage caused by such
removal; and
(ii) Surrender possession of the Leased Premises to Supermarket.
21. HOLDING OVER
If Bank remains in possession of the premises after the expiration or
termination of the Lease, it shall be deemed to be occupying the premises as a
Bank from month-to-month, subject to all the conditions, provisions and
obligations of this Lease as far as it applies to month-to-month tenancy,
cancelable by either party upon thirty (30) days written notice to the other
party.
22. ASSIGNMENT AND SUBLETTING
Bank shall have the right to assign this Lease or any interest
hereunder or sublet the Leased Premises or any part thereof. However, such
assignment or subletting must be approved by Supermarket which approval shall
not be unreasonably withheld, conditioned or delayed and shall no be construed
to relieve Bank from its obligations hereunder, unless agreed to in writing by
Supermarket. Notwithstanding the foregoing, in the event Bank is purchased by or
merged into another financial institution or if Bank desires to assign this
Lease to successors interest, the interest of Bank hereunder can be assigned to
its successor without the consent of Supermarket. Supermarket will allow Bank to
sublet to its subsidiary, Commercial Bank, under the same terms and conditions
as the lease to Bank (Holding Company).
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23. SUPERMARKET'S ACCESS TO LEASED PREMISES
Supermarket may enter the Leased Premises at reasonable times upon
reasonable notice for the purpose of inspecting or showing them, preventing
waste, loss or destruction, enforcing any of its rights or powers under this
Lease, or making such repairs or alterations as it is required or permitted to
make. If Bank is not present to open and permit entry, Supermarket may enter the
Leased Premises by master key (or forcibly) only in the event of an emergency,
except for routine cleaning. The obligations of Bank hereunder shall not be
affected by any such entry.
24. PARKING
For and in consideration of the Rent paid pursuant to this Lease,
Supermarket shall provide to Bank a sufficient number of parking spaces located
in close proximity to the Supermarket Store for use by Bank's employees and
customers.
25. NOTICES
All communications required hereunder shall be in writing and shall be
deemed to have been given if either delivered personally or mailed by certified
or registered mail to a party at the addresses set forth on the first page of
this Lease. The parties' addresses may from time to time be changed by written
notice.
Copies of any notices to Bank shall also be sent to:
COMMERCIAL BANK
ATTN: XXXX X. XXXXXXXX
PRESIDENT AND CEO
X.X. XXX 000
000 X. XXXX XXXXX XX.
XXXXXX, XX 00000
26. LITIGATION
Supermarket and Bank waive trial by jury in any proceeding brought by
either party pursuant to this Lease.
27. GOVERNING LAW; INVALIDATION
This Lease shall be governed by and construed in accordance with the
laws of the State of Michigan. The invalidation of one or more terms of this
Lease shall not affect the validity of the remaining terms.
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28. AMENDMENT
This Lease, including any exhibits, schedules, or riders attached
hereto, represents the entire agreement between the parties. No oral or written,
prior or contemporaneous agreements shall have any force or effect, and this
Lease may not be amended, altered or modified unless done so by means of a
written instrument signed by both parties.
29. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE
A. This Lease shall, at the option of Supermarket or its lenders, be
subject and subordinate to the interests of the holders of any notes secured by
mortgages on the Property or the Leased Premises, now or in the future, and to
all renewals, modifications, consolidations, replacements and extensions
thereof. While the provisions of this Section 29 are self-executing, Bank shall
execute such documents as many reasonably be desired by Supermarket or any
mortgagee to affirm or give notice of such subordination. In turn, Bank shall be
entitled to receive the customary non-disturbance agreement from each such
lender in form and substance satisfactory to Bank whereby the lender agrees to
recognize Bank's rights under this Lease following foreclosure so long as Bank
is not in material default hereunder.
B. Bank shall attorn to any foreclosing mortgagee, or to any purchaser
of the Property or the Leased Premises at any foreclosure sale, or sale in lieu
of foreclosure, for the balance of the Original Term or applicable Renewal Term
on all the terms and conditions herein contained.
C. At the request of Supermarket, Bank shall within ten (10) days
deliver to Supermarket, or anyone designated by Supermarket, a certificate
stating and certifying to such information as may reasonably be requested to
verify the state of the Supermarket-Bank relationship established by this Lease.
D. Notwithstanding any provisions with respect to the subordination of
the Lease to any superior lease or any superior mortgage which may hereafter be
made or to any renewal, modification, replacement or extension hereafter of any
superior lease or any superior mortgage, any such subordination is subject to
the express conditions that so long as the Lease is in full force and effect:
(i) Bank shall not be joined as a party defendant (a) in any action
or proceeding which may be instituted or taken by the lessor of
such superior lease for the purpose of terminating such superior
lease by reason of any default thereunder, or (b) in any
foreclosure action or proceeding which may be instituted or
taken by the holder of such superior mortgage;
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(ii) Bank shall not be evicted from the Leased Premises, nor shall
Bank's continuing use and occupancy of the Leased Premises be
interrupted, restricted or impaired, nor shall any of Bank's
rights under the Lease be affected in any way be reason of any
default under such superior lease or such superior mortgage; and
(iii) Bank's leasehold estate under the Lease shall not be terminated
or disturbed by reason of any default under such superior lease
or such superior mortgage and this Lease and Bank's rights
hereunder, including any rights of offset, shall be recognized
by the lessor under any such superior lease or the holder of any
such superior mortgage.
Supermarket represents that there are the following superior leases and
superior mortgages existing at the date of the Lease: Bobenal Investments.
Supermarket further represents that there are not existing defaults by
Supermarket under any such superior lease or superior mortgage, nor shall there
be as of the Commencement Date. Supermarket agrees to procure and deliver to
Bank, with reasonable promptness after the date of the Lease, written agreements
of the lessors of the aforesaid superior leases and the holders of the aforesaid
mortgages. If all such agreements shall not be tendered to Bank within ten (10)
days after the date of the Lease, Bank may, at Bank's option (a) delay the
Commencement Date of the Lease and the payment of Rent until Supermarket
procures such agreements, or (b) cancel the Lease on the date set forth in such
notice, which shall not be less than ten (10) nor more then sixty (60)) days
after the date of such notice, and the Lease and the terms and estate hereby
granted shall then terminate at noon of such cancellation date as if such
cancellation date were the expiration date, unless all of such agreements shall
have been tendered meanwhile. Upon any such cancellation Supermarket shall have
no further obligation to Bank hereunder except to return any monies theretofore
paid by Bank to Supermarket on account of Rent under the Lease.
30. SECURITY; HOURS OF BUSINESS
A. It shall be Bank's obligation to provide security for the FSF. Bank
shall have the right to have the Security Guard who is an employee or agent of
Bank in the Store at all times, and to install any electronic surveillance
equipment it deems necessary.
B. The Leased Premises are located entirely within the Supermarket's
building and because there is no separate access for ingress or egress to the
Leased Premises, Bank acknowledges that access to the Leased Premises will be
limited to those hours in which the Supermarket's operation is open for
business.
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Bank shall have the right to access the Leased Premises during the time
that the Supermarket operation is not open for business for the following
reasons:
(a) Security purposes
(b) To ready the Leased Premises for Bank's business;
(c) Emergency matters
Supermarket shall cooperate with Bank in allowing Bank to have access
to the Leased Premises for the reasons stated above, upon Bank's notice to
Supermarket; provided, however, Bank shall not have a key to the Store (without
Supermarket's consent) which contains the Leased Premises and its right of
access herein shall be through the security company maintained by Supermarket
governing access to the premises during the hours in which the Supermarket is
not in operation. Supermarket shall cooperate and direct its building security
company to establish a communication protocol with Bank's security company
and/or staff so that Bank's access as may be required for the above states
purposes will be properly coordinated and Supermarket will direct its security
company to act reasonably to facilitate cooperation between Bank's security
services and Supermarket's security services.
31. BANKING SERVICES
Supermarket may, but is not required to, conduct any of its in-house
banking services at Bank's facility, and the Bank shall maintain sufficient cash
funds to enable the Supermarket to conduct its banking business. Supermarket
shall have the right, during regular banking hours established by Bank, to make
deposits, withdrawals, cash checks, and conduct its other banking business at
Bank's facility, subject to any rules, regulations, policies, procedures, and/or
charges established by the Bank for similar commercial customers from time to
time.
32. GENDER; SINGULAR AND PLURAL
Whenever in this Lease words, including pronouns are used in the
masculine, they shall be read in the feminine or neuter whenever they would so
apply and vice versa, and words in this Lease that are singular shall be read as
plural whenever the latter would so apply and vice versa.
33. AMERICANS WITH DISABILITIES ACT
Bank shall, regarding the FSF, at all times and at its own expense,
comply with all federal, state and local laws, rules, regulations, ordinances,
and requirements regarding discrimination towards those who are disabled,
removal of architectural and communication barriers, providing auxiliary aids
and services
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for disabled persons, and making facilities accessible to disabled persons,
including, without limitation, the Americans Disabilities Act, 42 USC Section
12101 et seq., and the regulations issued thereunder at 28 CFR Part 36
(together, the "Act"). Bank's obligations under the Act shall not apply to (i)
any structural components of the Store, (ii) any new construction or alterations
undertaken by Supermarket, and (iii) any portions of the Leased Premises which
are not specifically Bank's responsibility; provided, however, that Bank's
compliance responsibilities under the Act shall in any event extend to the vault
and safety deposit box areas. Supermarket shall at all times and at its own
expense, comply with all federal, state and local laws, rules, regulations,
ordinances, and requirements regarding discrimination towards those who are
disabled, removal of architectural and communication barriers, providing
auxiliary aids and services for disabled persons, and making facilities
accessible to disabled persons, including, without limitation, the Americans
Disabilities Act, 42 USC Section 12101 et seq., and the regulations issued
thereunder at 28 CFR Part 36 (together, the "Act").
Bank shall defend, indemnify and hold Supermarket harmless from all
claims, costs and liabilities, including attorneys' fees and costs, arising out
of or in connection with Bank's failure to comply with the Act as required
pursuant to the terms hereof. Supermarket shall defend, indemnify and hold Bank
harmless from all claims, costs and liabilities, including attorneys' fees and
costs, arising out of or in connection with Supermarket's failure to comply with
the Act as required pursuant to the terms hereof.
34. SUCCESSORS AND ASSIGNS
The covenants, conditions, and agreements contained in this Lease shall
bind and inure to the benefit of Supermarket and Bank and their respective
successors and assigns.
35. COVENANTS AND CONDITIONS
All covenants and conditions contained in this Lease are independent of
one another.
36. NOTICE OF LEASE
Each party shall, upon the request of the other, execute, acknowledge
and deliver a memorandum or short form of the Lease in form suitable for
recording in accordance with local law or custom.
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37. BROKERS
Supermarket and Bank each represent and warrant to the other that it
has dealt with no broker in connection with this Lease. Supermarket and Bank
agree to indemnify and hold harmless the other from any and all claims, losses,
costs and expenses (including reasonable attorneys' fees) and liability for any
compensation, commissions or charges by any broker or agent if its
representation in this Section 37 is not true.
38. CONSENT
Wherever in this Lease it is provided that either party shall not
unreasonably withhold consent or approval, such consent or approval
(collectively referred to as "consent") shall also not be unreasonably
conditioned or delayed. If a party considers that the other party has
unreasonably withheld or delayed a consent it shall so notify the other party
within ten (10) days after receipt of notice of denial of the request consent
or, in case notice of denial is not received, within twenty (20) days after
giving the first mentioned notice, and may submit the question of whether the
withholding or delaying of such consent is unreasonable to determination by
arbitration.
39. AUTHORITY TO EXECUTE
The individuals executing this Lease warrant that they have full and
complete authority properly vested to execute this Lease and thereby bind their
respective entity to each and every term set forth herein applicable to them.
40. CONFIDENTIALITY
Each party acknowledges that in connection with this Agreement or in
the performance thereof, it has or will come into possession or knowledge of
material and information which is proprietary to the other party. Each party,
therefore, agrees to hold such material and information in strictest confidence,
not to make use thereof, except in the performance of this Agreement, and not to
release or disclose it to any other party with the exception of parent
companies, subsidiaries, and affiliates of the parties.
41. TAXES
Supermarket shall pay or cause to be paid all real property taxes and
special assessments levied against the premises. Bank shall pay all personal
property taxes assessed against any personal property owned by the Bank on the
premises.
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42. RULES AND REGULATIONS
Supermarket reserves the right to adopt from time-to-time reasonable
rules and regulations for the operation of the Supermarket which are not
inconsistent with the provisions of this Lease and which do not unreasonably
interfere with the Bank's use of the Premises for the intended purposes. Bank
and its agents, employees, invitees and licensees will comply with all those
reasonable rules and regulations.
43. CHANGES BY SUPERMARKET
Supermarket reserves the absolute right at any time, and from
time-to-time to make changes or revisions in the center, including changes to
the parking lot, driveways, signs, landscaping and sidewalks by making additions
to, subtractions from, or rearrangements of the improvements in the center,
which do not unreasonably interfere with Bank's use of the Premises for its
intended purposes, including significant alteration of the customer traffic
patterns.
44. NO PARTNERSHIP
Any intention to create a joint venture or partnership between the
parties is expressly disclaimed.
45. FORCE MAJEURE
Neither party shall be responsible for delays or failures in
performance resulting from acts beyond the control of such party, including,
without limitation, acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulation superimposed after the fact, fire;
communication line failures, earthquakes, floods, or other disasters.
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IN WITNESS WHEREOF, this Lease has been executed as of the day and year
first above written.
WITNESSES: LANDLORD:
BY:
---------------------- ----------------------
ITS:
---------------------- ----------------------
STATE OF MICHIGAN )
: SS
COUNTY OF GRATIOT )
The foregoing instrument was acknowledged before me by of, a
corporation, on behalf of the corporation. He/she identified the instrument as
Lease Agreement and signed it willingly on behalf of the corporation.
Notary Public
--------------------
County
----------------
My Commission Expires:
-----------
WITNESSES: TENANT:
BY:
---------------------- --------------------------
ITS:
---------------------- ---------------------------
STATE OF MICHIGAN )
: SS
COUNTY OF GRATIOT )
The foregoing instrument was acknowledged before me by of, a
corporation, on behalf of the corporation. He/she identified the instrument as
Lease Agreement and signed it willingly on behalf of the corporation.
Notary Public
-------------------
County
----------------
My Commission Expires:
-----------
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