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EXHIBIT 10.11
BANK LICENSE AGREEMENT
Agreement #: 102
Operator: VG's Food Centers
Store: Davison
Targeted Opening Date: 11/15/96
THIS AGREEMENT, made as of the 12 day of November, 1996 by and between
VG'S FOOD CENTERS, a Michigan corporation ("Operator"), whose address is 000 X.
Xxxxx Xx., Xxxxxx, XX and THE STATE BANK, a Michigan Corporation ("Licensee"),
whose address is One Xxxxxx Square, Fenton, MI.
WITNESSETH:
That, for and in consideration of the mutual promises herein, Operator and
Licensee have agreed as follows:
1. GRANT OF LICENSE. Subject to the terms and conditions set forth herein,
Licensee shall have the right and license to install a mini-branch banking
facility (hereinafter referred to as the "Branch Facility") in the
above-captioned store (hereinafter referred to as the "Licensed Location"),
and the right to operate a banking office, along with the right to offer
any services that a bank or bank affiliate is lawfully permitted to offer
in the Branch Facility (collectively the "Permitted Services"). It is
specifically agreed that Licensee will not engage in any other business or
sell or offer for sale any merchandise that is not related to the operation
of a bank branch facility or to the operation of any business by such a
bank affiliate and which would compete with merchandise sold or offered for
sale by Operator or any other licensee or concessionaire in the Licensed
Location, except as described herein.
2. TERM. The initial term of this Agreement shall commence on the date
hereof, and shall terminate ten (10) years from the last day of the month
of the Targeted Opening Date, unless earlier terminated or extended as
provided hereunder. Licensee may renew this Agreement for up to two (2)
additional five (5) year terms, by giving Operator written notice of
renewal at least one hundred eighty (180) days before the expiration of the
then current term. Operator may terminate this Agreement by written notice
to the Licensee if the Branch Facility does not open for business on the
Targeted Opening Date, unless the Targeted Opening Date is extended by
reason of Force Majeure (as defined in Section 17, below) or otherwise with
Operator's consent.
3. PAYMENTS.
(a) Licensee shall pay to Operator the license fee (hereinafter referred
to as "License Fees") set forth in Exhibit "A". Payments shall commence on
the date on
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which the Branch Facility first opens for business. License fees shall be
payable in equal monthly installments in advance on the first day of each
month, with such payments being prorated on a daily basis for any partial
month.
4. USE AND OCCUPANCY.
(a) So long as Licensee is operating a Branch Facility in the Licensed
Location, Licensee shall have the exclusive right to operate a full service
branch banking business and to offer the Permitted Services in the Licensed
Location. Licensee may offer certain of the Permitted Services, including
without limitation insurance products and investment services, through
separate departments of the Licensee and/or affiliated companies, provided
that such affiliated companies shall be controlled by or be under common
control with Licensee. Operator shall not permit any other licensee,
concessionaire, or other third party to install ATMs or other cash
dispensing machines in the Licensed Location during the term of this
Agreement.
(b) Licensee shall commence operations on the Targeted Opening Date, as
the same may be extended pursuant to the terms hereof, and shall operate
the Branch Facility on at least a seven (7) day per week basis with at
least fifty-six (56) hours of operation in each week, except for state or
federal holidays on which Licensee's other branches are closed. The Branch
Facility will be adequately staffed during its hours of operation.
Licensee's use of the Branch Facility shall be subject to such reasonable
limitations and restrictions as Operator may from time to time impose
(including limiting hours of operation to periods in which the Licensed
Location is open to the public) in order to assure that the operation of
the Branch Facility does not interfere with Store operations; provided,
however, that such restrictions and limitations shall not unreasonably
interfere with or hinder Licensee's operations. Operator's personnel shall
not block or restrict access to the Branch Facility.
(c) Operator agrees that Licensee's employees may market Licensee's
services to the customers in the Store, and that Licensee may promote
Licensee's services through the reasonable use of in-aisle signage and
banners; provided, however, that the mode of approaching customers and the
use and placement of in-aisle signage and banners shall be subject to
Operator's approval, which approval shall not be unreasonably withheld or
delayed.
(d) Operator hereby warrants and represents that there are no exclusive
use provisions that would prevent Licensee from operating its Branch
Facility as contemplated by this Agreement.
5. LICENSEE'S EMPLOYEES.
(a) Licensee is an independent contractor, and nothing in this Agreement
shall be construed to create a partnership, joint venture, or co-employer
or joint employer relationship by and between Operator and Licensee.
Operator and Licensee shall have the sole and exclusive right to select and
direct their respective employees and to determine the terms and conditions
of their employment. Licensee shall at its own cost and expense, maintain
workers' compensation coverage, unemployment
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compensation coverage and any other insurance that may be required by law
with respect to Licensee's employees.
(b) Licensee's employees, while working at the Licensed Location, shall be
entitled to use toilets, "break rooms" and other similar facilities
provided by Operator for the convenience of its employees. Operator agrees
to provide parking facilities and agrees to allow Licensee, its employees,
agents, and invitees, to use such parking facilities, on a nonexclusive
basis, subject to such reasonable rules and regulations of Operator which
Operator may, from time to time, establish.
6. IMPROVEMENTS AND ADDITIONS: SIGNS.
(a) Operator has designated the area of the Licensed Location depicted on
Exhibit "B" attached hereto and made a part hereof for installation of the
Branch Facility, and Licensee or its contractors at Licensee's sole cost
and expense shall install the Branch Facility in accordance with plans
approved by Operator. Licensee shall not make any material modification to
the Branch Facility without Operator's prior written approval, which
approval shall not be unreasonably withheld or delayed.
(b) Licensee shall furnish all fixtures, equipment and finishings which it
deems necessary or desirable for its operations at the Branch Facility, and
shall obtain all necessary permits and governmental approval. Operator
acknowledges that all fixtures and equipment located in the Branch Facility
are the property of Licensee and agrees that Licensee may remove them at
the expiration or earlier termination of this Agreement; provided, however,
that any fixtures or equipment remaining after such expiration or earlier
termination shall be considered abandoned, and Operator may remove and
dispose of them as it sees fit at Licensee's expense.
(c) Licensee's signage shall be subject to Operator's prior written
approval. Licensee's signs shall be removed upon the expiration or earlier
termination of this Agreement and any damage caused by such removal shall
be repaired. Licensee shall obtain any approvals required by any
applicable municipal ordinances and regulations. Operator shall assist
Licensee in obtaining any such approvals, including without limitation
requesting waivers or variances where applicable.
(d) If any general contractor or subcontractor of Licensee files a lien
against the Licensed Location, Licensee shall cause such lien to be
discharged of record.
7. REMODELING.
Licensee recognizes that Operator may, from time to time, remodel the
Licensed Location to accommodate changes in retailing patterns. If
Operator determines that the Branch Facility must be relocated in
connection with such remodeling, Operator shall notify Licensee of its
proposed new location of the Branch Facility, which location shall be at
the front of the Store, convenient to the checkout stands and plainly
visible to customers. If Licensee is not satisfied with the new location
proposed by Operator, Licensee's exclusive and sole remedy is to terminate
this
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Agreement. If Licensee and Operator agree upon a remodel location,
Operator shall move the Branch Facility to the new location, and shall
endeavor to minimize disruption to the operation of Licensee's business
during its remodeling of the Licensed Location.
8. MAINTENANCE; SERVICES.
Licensee shall maintain the Branch Facility in good order and repair.
Operator shall maintain the Licensed Location in good order and repair.
Operator shall furnish janitorial services for aisles and floors adjacent
to the Branch Facility and electricity, heating, and air conditioning
required as a result of normal activity to be carried on in the Branch
Facility. Where services are the responsibility of a third party, Operator
will use reasonable efforts to obtain conformance with this paragraph.
9. INSURANCE.
(a) Licensee shall carry personal property insurance and public liability
insurance with respect to its operations in the Licensed Locations naming
Operator, and Operator's Landlord (if any), as additional insured parties
under the liability insurance policy. The limits of the liability
insurance policy shall not be less than $2,000,000.00 per occurrence for
bodily injury and for property damage. Licensee shall furnish Operator a
certificate evidencing such coverage and a renewal certificate at least
twenty (20) days prior to the cancellation or expiration of such policy.
(b) The parties hereto agree that the merchandise and other property of
each at the Licensed Location may be subject to damage or loss by reason of
many hazards such as theft, fire, leakage, heater power failure, accidents,
defects in plumbing, boiler or other explosions, and the bursting of pipes,
and that insurance is obtainable against most if not all of such hazards.
Operator shall not be liable for any damage to the Branch Facility or to
the fixtures or equipment of Licensee contained therein or any loss
suffered by Licensee caused by fire or other hazards, regardless of the
cause thereof. Licensee hereby agrees to release Operator of and from all
liability for such damages. Licensee shall not be liable for any damage to
the Licensed Location or any part thereof or any loss suffered by Operator,
caused by fire or other hazards, regardless of the cause thereof. Operator
hereby agrees to release Licensee of and from all liability for such
damages. Subject to the foregoing mutual waiver of subrogation, Licensee
and Operator shall hold the other harmless from any and all claims for
injury, death, or damages resulting from its respective activities or
business or from the negligent or wrongful acts, at the Licensed Location
of its respective employees, agents, and contractors acting within the
scope of their employment, agency or contract.
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10. TAXES.
Licensee shall pay all license fees and taxes assessed by any taxing
authority on its operations, fixtures, and equipment and machinery.
Operator agrees to forward to Licensee all tax bills, license notices, and
the like that are payable by Licensee but are received by Operator,
promptly upon their receipt.
11. ADVERTISING.
Both Operator and Licensee recognize that it is in their best interest to
promote the business of each other at the Licensed Location. Operator and
its employees shall cooperate and promote the goodwill and business of
Licensee at the Licensed Location, and Licensee and its employees shall
promote the goodwill and business of Operator at the Branch Facility. The
cost of any advertising jointly undertaken by Operator and Licensee shall
be shared on a mutually acceptable basis. In addition, Operator and
Licensee may each, at its own expense, separately advertise the existence
of the Branch Facility in the Licensed Location in such media and in such
manner as each deems appropriate; provided, however, that Operator and
Licensee shall obtain the prior approval of the other in respect of any
advertisement or notice that refers to both Operator and Licensee.
12. DEFAULT.
(a) If Licensee fails to make the payments of license fees required under
Paragraph 3, above, or any other charge provided for hereunder or under
paragraph 1 when the same is due and the same shall not be paid after ten
(10) days written notice to Licensee, of if Licensee breaches any other
covenant of this Agreement, and fails to remedy same within thirty (30)
days after written notice to Licensee specifying the nature of such
default, or fails to commerce efforts within such thirty (30) day period to
remedy such default which cannot be cured within thirty (30) days and
thereafter diligently to prosecute such efforts to completion, Operator may
declare this Agreement terminated, and Licensee shall thereupon promptly
vacate the Licensed Location. In addition, in the event of Licensee's
default as aforesaid, Operator may, without terminating this Agreement,
reenter and take possession of the Licensed Location from Licensee by any
lawful means; and it is agreed that the commencement and prosecution of any
action by Operator, or any execution of any judgment or decree obtained in
any action to recover possession of the Licensed Location or any other
reentry, shall not be construed as an election to terminate this License,
and shall not be deemed to have absolved or discharged Licensee from any of
its obligations or liabilities for the remainder of the licensed term.
(b) In case of any default, whether or not this Agreement is terminated,
Licensee will indemnify Operator against all loss of rent and other
payments provided herein to be paid by Licensee to Operator between the
time of default or termination and the expiration of the term of this
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Agreement. It is understood and agreed that at the time of the termination
or reentry or any time thereafter, Operator may rent the Licensed Location
for a term which may expire after the expiration of the term of this
Agreement without releasing Licensee from any liability whatsoever; that
Licensee shall be liable for any expenses incurred by Operator in
connection with obtaining possession of the Licensed Location and in
connection with any relicensing, including, but without limitation,
reasonable attorneys' fees, reasonable brokers' fees, and reasonable
consultants' fees; and that monies collected from any relicensing shall be
applied first to the foregoing expenses and then to payment of the license
fee and all payments due from Licensee to Operator. Said indemnification
of Operator by Licensee shall be accomplished by payments made on the days
on which said License Fee and other payments would have been due and
payable hereunder if this Agreement had not terminated.
(c) If any dispute shall arise between Operator and Licensee as to any
claimed default by Licensee and such dispute is referred to arbitration
pursuant to the terms of this Agreement, and provided Licensee performs all
of the other terms and conditions of this Agreement except for the item in
dispute, no default shall be deemed to exist on the part of Licensee and no
period for the remedying of such alleged default shall be deemed to
commence until the day following the arbitrator's determination of such
dispute adversely to Licensee, nor shall Licensee pay or be obligated to
pay any attorney's fees or other expenses incurred by Operator in enforcing
any of the obligations under this Agreement unless any such dispute or
default is determined adversely to Licensee.
13. TERMINATION.
Operator may terminate this Agreement upon one hundred twenty (120) days
written notice to Licensee if Operator elects to discontinue its business
at the Licensed Location, unless Operator sells or subleases the Licensed
Location to a retailer, acceptable to Licensee, which assumes Operator's
obligations hereunder.
14. CASUALTY.
(a) If by fire or other casualty, the Licensed Location is destroyed or
damaged, Operator agrees to notify Licensee as to whether it shall repair
the damage or destruction resulting from such casualty as soon as possible,
but in any event within sixty (60) days from the date of such damage or
destruction. If Operator elects to repair such damage or destruction,
Operator shall proceed with due diligence to restore the Licensed Location
to substantially the same condition as existed before such damage or
destruction as soon as reasonably possible after the date of such damage or
destruction. If Operator fails to notify Licensee within sixty (60) days of
such damage that it intends to repair such damage or destruction, Licensee
shall have the right and option to terminate this Agreement by written
notice to Operator.
(b) If by fire or other casualty, the Branch Facility is destroyed or
damaged to the extent that Licensee is deprived of occupancy or use of the
same or Licensee's business is materially impaired, Licensee shall repair
the damage or destruction resulting from such casualty as soon as possible,
but in any event within (i) ninety (90) days from the date of such damage
or destruction, if the damage or destruction is confined to the Branch
Facility or (ii) ninety (90) days from Operator's
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commencement of restoration of the Licensed Location or such longer period
as may elapse prior to Operator's completion of repairs to the Licensed
Location, if the Licensed Location is also damaged or destroyed. If such
damage or destruction is not substantially repaired within the period set
forth above, Operator shall have the right and option to terminate this
Agreement by written notice to Licensee. Notwithstanding the foregoing,
Licensee shall be under no obligation to repair any such damage or
destruction that occurs within the last year of any term of this Agreement.
15. CONDEMNATION.
Operator reserves to itself, and Licensee assigns to Operator, all rights
to damages accruing or awards or other compensation payable on account of
any taking by eminent domain or by reason of any of act of public authority
or sale in lieu thereof for which damages or awards or other compensation
are payable. Licensee agrees to execute such instruments of assignment as
may be reasonably required by Operator in any petition for the recovery of
such damages, and to turn over to Operator any damages that may be
recovered by Licensee in any such proceeding. It is agreed and understood,
however, that Operator does not reserve to itself and Licensee does not
assign to Operator any award of damages payable for the Branch Facility or
any trade fixtures installed by Licensee; provided such award shall not
limit or diminish the amount of the award, damages or other compensation
payable to Operator.
16. SECURITY.
It shall be Licensee's obligation to provide any security, including
security personnel, deemed necessary by Licensee.
17. FORCE MAJEURE
Performance hereunder (other than the payment of money) shall be excused,
and the deadline for such performance shall be extended, during the period,
and to the extent, such performance is rendered impossible, impracticable
or unduly burdensome owing to acts of God, strikes, lockouts, or labor
difficulty; governmental requirements; unavailability of parts through
normal supply sources; computer malfunction; failure of any utility to
supply its services for reasons beyond a party's control; explosion,
sabotage, accident, riot or civil commotion; act of war; fire or other
casualty; or any other cause beyond the reasonable control of the party
whose performance is to be excused.
18. NOTICES.
All notices and communications hereunder, shall be in writing and signed by
a duly authorized representative of the party making the same. All notices
shall be deemed effective when delivered personally or when deposited in
the United States mail, registered or certified, return receipt requested,
postage prepaid, or by a national private courier, such as Federal Express,
addressed as set forth in the heading of
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this Agreement. The names and addresses for the purposes of this paragraph
may be changed by giving written notice of such change in the manner herein
provided for giving notice. Until such written notice is actually
received, the last name and address stated by written notice or provided
herein shall be deemed to continue in effect for all purposes hereunder.
19. ENTIRE AGREEMENT.
The parties hereto agree that this Agreement sets forth all the promises,
agreement and understandings between them with respect to Licensee's right
and license to install, operate, and maintain the Branch Facility. No
amendment or modification to this Agreement shall be binding unless such
amendment or modification is reduced to writing and signed by both parties.
20. CAPTIONS.
The captions of the several sections of this Agreement are not part of the
context hereof and shall be ignored in construing this Agreement. They are
intended only as aids in locating various provisions hereof.
21. SEVERABILITY.
Each provision contained in this Agreement shall be independent and
severable from all other provisions contained herein, and the invalidity of
any such provision shall in no way affect the enforceability of the other
provisions.
22. GOVERNING LAW.
All questions of enforceability and interpretation which may arise under
this Agreement shall be determined by the laws of the State of Michigan.
23. BINDING EFFECT.
This Contract shall be binding upon and shall inure to the benefit of
Operator and Licensee and their respective legal representatives and any
entity that succeeds to the rights of Operator or Licensee as a result of
any merger, consolidation or other corporate combination.
24. APPROVALS AND REQUIREMENTS.
(a) Operator hereby warrants and represents that Operator has all
requisite consents and approvals to enter into this Agreement from, and is
in compliance with the requirements of, all landlords and mortgagees, and
if required, all necessary third parties, including but not limited to
state and federal regulatory authorities, zoning commissions, and other
local authorities.
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(b) The obligations of the Licensee as set forth herein are contingent
upon Licensee obtaining all necessary permits and approvals to operate a
branch banking facility at the Licensed Location. Operator or Licensee may
elect to terminate this Agreement if Licensee is not able to obtain all
such permits or approvals by the Targeted Opening Date, as the same may be
extended. This contingency shall be satisfied upon delivery of such notice
to Operator that Licensee has obtained such permits or approvals.
25. ASSIGNMENT.
The identity and character of Licensee is a substantial part of the
consideration for this Agreement, and this Agreement shall be personal to
Licensee. Without the prior written consent of Operator this Agreement and
the rights granted hereunder may not be assigned or transferred in any
manner whatsoever, whether voluntarily, involuntarily, or by operation of
law; provided, however, that this Agreement may be assigned, or the Branch
Facility may be sublicensed, in whole or in part, to any corporation into
or with which the Licensee may be merged or consolidated or to any
corporation which shall be an affiliate, subsidiary, parent or successor of
licensee, without the prior consent of Operator, provided in every such
instance that the use of the Branch Facility shall remain the same.
Acquisition by Licensee, its corporate successors or assigns, of a
substantial portion of the assets, together with the assumption of all or
substantially all of the obligations and liabilities of any corporation,
shall be deemed a merger of such corporation into Licensee for purposes of
this Paragraph.
26. WAIVER.
The failure of either party hereto to seek redress for violation of, or to
insist upon the performance of, any covenant or condition of this Agreement
shall not prevent the continuation of said act of a subsequent act from
having all the force and effect of an original violation.
27. RECORDATION.
This Agreement shall not be recorded.
28. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or
relating to any breach or claimed breach hereof shall be settled by
arbitration, in accordance with the rules then pertaining, of the American
Arbitration Association. This agreement for arbitration shall be
enforceable and judgment upon the award rendered by all or a majority of
the arbitrators may be entered in any court for a judicial acceptance of
such award and an order of enforcement, as the case may be.
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29. CONSENTS OR APPROVALS.
Any requirement for the consent or approval of either party shall be
subject to the further proviso that such consent(s) or approval(s) shall
not be unreasonably withheld or delayed.
30. SUSPENSION OF BUSINESS BY GOVERNMENT ORDER.
If the Licensee is prohibited from conducting its business in the Branch
Facility by any governmental authority having jurisdiction, Licensee shall
notify Operator of the same, and the License Fees and other charges
reserved hereunder shall be wholly abated while such prohibition remains in
effect. If such prohibition shall continue in effect longer than thirty
(30) days, this Agreement shall terminate.
IN WITNESS WHEREOF, the parties hereto have caused duplicate counterparts
of this Agreement to be duly executed and delivered on or as of the date first
set forth at the beginning of this Agreement.
LICENSEE: THE STATE BANK OPERATOR: VG'S FOOD CENTERS
By: /s/Xxxxxxx X. Xxxxxx By: /s/Xxxxxxx X. XxxXxxxxx, Xx.
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Xxxxxxx X. Xxxxxx Xxxxxxx X. XxxXxxxxx, Xx.
Title: Senior Vice President Title: Chairman
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EXHIBIT "A"
LICENSE FEES
Licensee shall pay to Operator monthly License Fees according to the schedule
below:
Years 1 - 5 $2,520/monthly $30,240/annually
Years 6 - 10 $2,970/monthly $35,640/annually
Years 11 - 15 $3,420/monthly $41,040/annually
Years 16 - 20 $3,870/monthly $46,640/annually
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