Exhibit 10.35
PENTECOST PLAZA
AGREEMENT OF LEASE
THIS LEASE made this 29th day of April, 2005, by and between
Landlord:
Joe D. Pentecost Trust
1651 W. Lake Lansing Avenue, Suite #200
East Lansing, Michigan 48823
(517)336-5000 fax(517) 336-5882
and Tenant:
Mercantile Bank of West Michigan
5650 Byron Center Avenue, SW
Wyoming, MI 49519
(616) 406-3780 fax(616) 406-3737
ARTICLE 1. NONSTANDARD PROVISIONS
The following entries constitute the nonstandard provisions of the Lease and
referred to elsewhere herein:
(a) Premises: 1651 W. Lake Lansing Road, Suite #300, East Lansing, MI 48823
(b) Leased Premises: A portion of the first floor of the Premises consisting of
approximately 7714 sq ft as described in Exhibit A. Tenant's pro-rata share of
the Premises is 66.95% ("Tenant's Pro-Rata Share")
(c) The term of this Lease shall be 24 months and shall commence on the 15th day
of June 2005, and end on the 15th day of June 2007.
(d) Monthly Rental is due on the 1st day of each month in advance in the amount
of Nine Thousand Three Hundred and Twenty One Dollars and xx/100 ($9321.00).
Rent for said term is the sum of Two Hundred Twenty Three Thousand Seven Hundred
Four Dollars and xx/100 ($223,704.00). In addition to the monthly rental, upon
execution of this Lease, Tenant shall pay to Landlord a one time fee of $15,000
(which fee will not be payable upon any extension of this Lease as described
below).
(e) Use of premises by Tenant: OFFICE AND BANK BRANCH
(f) Security Deposit: Five Thousand Dollars and xx/100 ($5000.00)
(g) This Lease, together with Exhibits A (Site Plan and legal description), B
(Rules and Regulations), C (Signage), and D (floor plan) referred to herein,
embodies the entire agreement between the parties.
(h) Tenant shall have the option to extend the term of this lease for Two (2)
additional Three (3) year periods by providing written notice via certified
mail, return receipt requested to Landlord of the exercise of each such option
not less than six (6) months prior to the expiration of the current or extended
term of this Lease. Each extension shall be upon the same terms and conditions
as this lease; provided that the
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monthly rental for the first option term shall be $9,881 and the monthly rental
for the second option term shall be $10,474.
(i) The provisions of this section (i) shall govern notwithstanding anything to
the contrary contained in this Lease. The Landlord shall not have access to the
Premises unless supervised by representatives of Tenant, except in case of
emergency to save property or life or Tenant unreasonably fails to provide
supervision (after reasonable notice) for any access granted to Landlord under
the terms hereof. Landlord shall have no access to Tenant's Confidential
Information (as defined below). In the event Landlord obtains any Confidential
Information, all such Confidential Information shall be immediately returned to
Tenant and held in confidence by Landlord to the same extent and using at least
the same degree of care as Landlord uses to protect its own confidential or
proprietary information, but in no event less than reasonable care. Landlord
shall not disclose, publish, release, transfer or otherwise make available
Confidential Information in any form to, or for the use or benefit of, any other
person or entity. "Confidential Information" shall mean all confidential or
proprietary information of Tenant, including trade secrets and documentation,
and all "nonpublic personal information" as such term is defined under Title V
of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1138), as
it may be amended from time to time, the regulations promulgated thereunder or
other applicable law.
(j) Notwithstanding anything in this Lease to the contrary, Landlord covenants
and agrees that during the term of this Lease and any extension: (i) no part of
the Premises occupied by any other person shall be used as a site for the
operation of a bank, mortgage company, or other financial institution and (ii)
no banking, mortgage, or other financial services shall be provided from any
part of the Premises not occupied by Tenant including, without limitation, the
providing of services through automated teller machine(s) or cash dissemination
machine(s); provided, however, the following activities and operations shall be
permitted: stockbroker, brokerage houses, insurance agency, financial planner,
investment advisor, realtor or law practice (the "Restrictive Covenant"). In the
event of a violation or breach of the Restrictive Covenant, Tenant, shall have
the right to proceed at law or in equity to compel compliance with the
Restrictive Covenant or to prevent its violation or breach and the fee title
owner of the Premises at the time of such violation/breach shall reimburse
Tenant for all costs, including reasonable attorneys fees, incurred in enforcing
the Restrictive Covenant. No failure of Tenant to enforce its rights hereunder
shall be construed to constitute a waiver thereof.
ARTICLE 2. PREMISES
Landlord, in consideration of the rent to be paid and the covenants to be
performed by Tenant, does hereby demise and lease unto Tenant and Tenant hereby
rents from Landlord, those certain premises, which is shown and legally
described on the site plan marked Exhibit A attached hereto and made a part
hereof, such leased premises being cross-hatched on Exhibit D (floor plan). The
leased premises extend to the exterior face of the exterior walls and the
centerline of the demising walls separating the leased premises from the
premises of other tenants.
Tenant has examined the leased premises and knowingly accepts the present
condition of same, and acknowledges that such condition is satisfactory for its
purposes.
ARTICLE 3. TERM
The term of the Lease shall be as set forth in Article 1(c).
ARTICLE 4. RENT
Tenant shall pay the Landlord the monthly rental which is set forth in
Article l(d) in advance on the first day of each calendar month during said
term, made payable and addressed to Landlord as set forth on page 1 of this
Lease, or such other place as Landlord may from time to time designate in
writing. The
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installment of rent payable for any portion, less than all, of a calendar month
shall be a pro-rata portion of the installment payable for a full calendar
month.
ARTICLE 5. REAL ESTATE AND PERSONAL PROPERTY TAXES
Tenant shall annually pay (within 30 days after invoice) Tenant's Pro-Rata
Share (as set forth in section l(b) above) of real estate taxes and assessments
assessed against the Premises prorated to cover the term of this Lease. Tenant
to pay all personal property taxes on fixtures, equipment, inventory, etc. owned
or leased by tenant.
ARTICLE 6. USE OF PREMISES AND OPERATION OF BUSINESS
Tenant agrees that the leased premises shall be used and occupied by Tenant
or anyone claiming under Tenant only for the purpose specified as the use
thereof in Section l(e) and for no other purpose or purposes without the prior
written consent of Landlord.
Tenant agrees to comply promptly with all laws, ordinances, orders, and
regulations affecting the leased premises and the cleanliness, safety,
operation, and use thereof. Tenant also agrees to comply with the reasonable
recommendations of an insurance company, inspection bureau or similar agency
selected by Landlord with respect to the leased premises.
Tenant agrees not to:
(A) Permit any unlawful or immoral practice to be carried on or committed on the
leased premises.
(B) Make any use of or allow the leased premises to be used in any manner or for
any purpose that might invalidate or increase the rate of Landlord's insurance
thereof, except that Tenant may use the Premises for the purposes described in
section 1(e).
(C) Keep or use or permit to be kept or used on said leased premises any
inflammable fluids or explosives without in each instance obtaining the prior
written approval of Landlord.
(D) No waste, nuisance, or damage shall be committed upon or to the demised
premises.
ARTICLE 7. COMMON AREAS
Landlord agrees to cause to be operated, managed, and maintained in good
and clean working order during the term of this Lease all common areas, parking
areas, roads, sidewalks, landscaping, drainage, and common area lighting
facilities related to the Premises.
The manner in which such areas and facilities shall be maintained and
operated and the expenditures therefor by Landlord shall be commercially
reasonable and the use of such areas and facilities shall be subject to such
reasonable regulations as Landlord shall make from time to time. Tenant shall
pay Tenant's Pro-Rata Share (as set forth in section l(b) above) of all common
area expenses.
Landlord hereby grants to Tenant and Tenant's customers and invitees the
right to use, subject to the conditions hereinafter stated, the common areas in
the Premises. The use of the common areas by Tenant and Tenant's customers and
invitees shall be subject to the rights of Landlord under the terms of this
Lease and shall be used by Tenant, its agents, employees, customers, and
invitees in common with agents, employees, customers, and invitees of Landlord,
the other owners, occupants, and tenants from time to time in the Premises.
Tenant shall make no use of the common areas which shall interfere in any way
with the use of the common areas by others or with the business of any other
Tenant or with the Landlord. The use of all common areas shall be subject to the
rules and regulations from time to time approved by Landlord.
ARTICLE 8. ALTERATIONS BY TENANT
Tenant shall not make or cause to be made any alterations, additions, or
improvements to the leased premises or install or cause to be installed any
exterior signs, floor covering, interior or exterior lighting, plumbing
fixtures, shades, canopies or awnings, or make any changes to the leased
premises
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without the prior written approval of Landlord, which approval shall not be
unreasonably withheld. Tenant shall present to the Landlord plans and
specifications for such work at the time approval is sought.
All alterations, decorations, additions, and improvements made by Tenant
shall be deemed to have been attached to the leasehold and to have become the
property of Landlord upon such attachment and upon expiration of this Lease or
any renewal term thereof. The Tenant shall not remove any of such alterations,
decorations, additions, and improvements except trade fixtures installed by
Tenant (including safes, surveillance equipment and similar fixtures) and
personal property of Tenant (hereinafter referred to as "Tenant's Property").
Landlord, at the expiration of the term, may elect to require Tenant to remove
all or any part of Tenant's Property and/or the alterations made by Tenant, and,
in such event, such removal shall be done at Tenant's cost and expense, and
Tenant shall, at its cost and expense, repair any damage to the leased premises
or the building caused by such removal, provided that Landlord may remove such
Tenants Property and/or alterations, and Tenant shall pay to Landlord,
Landlord's cost of removal within ten (10) days after the receipt of a bill
therefor. In the event Landlord does not so elect and Tenant vacates the leased
premises without so removing Tenant's Property, such Tenant's Property and/or
alterations, shall become Landlord's property.
ARTICLE 9. ALTERATIONS BY LANDLORD
Landlord reserves the right at any time to make alterations, modifications,
reductions, expansions, or additions to, any portion of the Premises (other than
the leased premises), provided that such actions do not interfere with Tenant's
business or impair the value of the leased premises.
ARTICLE 10. MAINTENANCE OF PREMISES
Landlord shall, at its expense, keep, maintain and repair the Premises
(other than interior leased premises), including all mechanical systems,
structural components and roof, in good working order and repair at all times
and shall make all necessary replacements of such systems, components and roof.
Lessee is responsible for nonstructural repairs and maintenance replacements on
Lessee's premises. Tenant shall replace all light bulbs and janitorial supplies
in the leased premises.
Tenant shall keep and maintain the interior leased premises in a clean,
sanitary, and safe condition in accordance with the laws of the State of
Michigan and in accordance with all directions, rules, and regulations of the
health officer, fire marshal, building inspector, or other proper officials of
the governmental agencies having jurisdiction, at the sole cost and expense of
Tenant, and Tenant shall comply with all requirements of law, ordinance and
otherwise, affecting said interior leased premises. If Tenant refuses or
neglects to commence and to complete repairs promptly and adequately, Landlord
may, but shall not be required to do so, make and complete said repairs, and
Tenant shall pay the cost thereof to Landlord upon demand. At the time of the
expiration of the tenancy created herein, Tenant shall surrender the leased
premises in good condition, reasonable wear and tear, loss by fire or other
unavoidable casualty excepted.
ARTICLE 11. INSURANCE AND INDEMNITY
Tenant shall, during the entire term hereof, keep in full force and effect
a policy of public liability and property damage insurance with respect to the
leased premises and the business operated by Tenant and any subtenants of Tenant
in the leased premises, in which the limits of public liability shall not be
less than Two Million ($2,000,000) Dollars per person per accident and in which
the limit of property damage liability shall not be less than Five Hundred
Thousand ($500,000) Dollars. Such insurance may be furnished by Tenant under any
blanket policy carried by it or under a separate policy therefor.
Landlord agrees, during the term hereof, to carry insurance against fire,
vandalism, malicious mischief, and such other perils as are from time to time
included in a standard extended coverage endorsement and, at Landlord's option,
special extended coverage endorsements insuring the improvements to the Premises
in an amount determined solely by Landlord but not less than One Hundred (100%)
Percent of the full replacement cost, if available. Tenant will pay Tenant's
Pro-Rata Share (as set forth in section
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or responsibility for any direct or consequential loss, injury, or damage to the
premises or its contents, caused by fire or any other casualty, during the term
of this Lease, even if such fire or other casualty may have been caused by the
negligence (but not willful act) of the other party or one for whom such party
may be responsible. Inasmuch as the above mutual waivers will preclude the
assignment of any aforesaid claim by way of subrogation (or otherwise) to an
insurance company (or any other person), each party hereto agrees, if required
by said policies, to give to each insurance company which has issued to it fire
and other property insurance, written notice of the terms of said mutual waivers
and to have said insurance policies properly endorsed, if necessary, to prevent
the invalidation of said insurance coverage by reason of said waivers.
ARTICLE 12. UTILITIES
Tenant will be responsible for Tenant's Pro-Rata Share (as set forth in
section l(b) above) of all charges for water, sewer, and trash removal,
furnished to the Premises. Tenant shall be responsible for all charges for
electricity, gas, telephone and janitorial services provided directly to (or
metered to) the leased premises.
ARTICLE 13. ATTORNMENT AND SUBORDINATION
At any time and from time to time, Tenant agrees, within ten (10) days
after request in writing from Landlord, to execute and deliver to Landlord, for
the benefit of such persons as Landlord names in such request, a statement in
writing and in form and substance satisfactory to Landlord certifying to the
following information as Landlord shall request:
(A) This Lease constitutes the entire agreement between Landlord and Tenant and
is unmodified and that this lease is in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications);
(B) The amount of and dates to which the rent and other charges hereunder have
been paid and the amount of any security deposited with Landlord;
(C) The leased premises have been renovated on or before the date of such letter
and that all conditions precedent to the Lease taking effect have been carried
out;
(D) The tenant has accepted possession, that the lease term has commenced, that
Tenant is occupying the leased premises and that Tenant knows of no default
under the Lease by the Landlord, and that there are no defaults or offsets which
Tenant has against enforcement of this Lease by Landlord (or, if in default, the
nature thereof in detail);
(E) The actual Commencement Date of the Lease and Expiration Date of the Lease;
and,
(F) The Tenant's business located in the leased premises is open and operating,
provided all of the foregoing facts are true and ascertainable.
ARTICLE 14. OWNERSHIP, ASSIGNMENT, AND SUBLETTING
Tenant shall not transfer, assign, sublet, mortgage, enter into a license
or concession agreement or hypothecate this Lease or Tenant's interest in and to
the leased premises, or permit any transfer of Tenant's interest created hereby
or allow any liens upon Tenant's interest by operation of law, or permit the use
or occupancy of the leased premises or any part thereof by anyone other than
Tenant without first obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld.
ARTICLE 16. EMINENT DOMAIN
If the whole of the leased premises shall be taken by any public authority
under the power of eminent domain, then the term of this Lease shall cease as of
the day possession shall be taken by such public authority, and the rent shall
be paid up to that day with a proportionate refund by Landlord of such rent as
may have been paid in advance for a period subsequent to the date of the taking.
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If only a part of the leased premises shall be taken by any public
authority under the power of eminent domain, then either Landlord or Tenant
shall have the right to terminate this Lease and declare the same null and void
by written notice of such intention to the other party within ten (10) days
after such taking. In the event neither party exercises said right of
termination, this Lease term shall cease only on the part so taken as of the day
possession shall be taken by such public authority and Tenant shall pay rent up
to that day, with appropriate refund by Landlord of such rent as may have been
paid in advance for a period subsequent to the date of the taking, and
thereafter all the terms herein provided shall continue in effect, except that
the fixed monthly rental shall be reduced in proportion to the amount of the
leased premises taken and Landlord shall at its own cost and expense make all
the necessary repairs or alterations to the basic building as originally
installed by Landlord so as to constitute the remaining leased premises a
complete architectural unit.
All damages awarded for such taking under the power of eminent domain,
whether for the whole or a part of the leased premises, shall belong to and be
the property of Landlord, whether such damages shall be awarded as compensation
for diminution in value to the leasehold or to the fee of the premises;
provided, however, that Landlord shall not be entitled to the award made for
depreciation to, and cost of removal of, Tenant's stock and fixtures.
ARTICLE 17. DEFAULT OF TENANT
In the event of any failure of Tenant to pay any rental or other charges
due hereunder on the day the same shall be due, or any failure to perform any
other of the terms, conditions, or covenants of this Lease to be observed or
performed by Tenant for more than ten (10) days after written notice of such
default shall have been mailed to Tenant, or if Tenant shall abandon said
premises or permit this Lease to be taken under any writ of execution, then the
Landlord, besides other rights or remedies it may have, shall have the right to
declare this Lease terminated and the term ended and/or shall have the immediate
right of re-entry and may remove all persons and property from the leased
premises, and such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant, without evidence of
notice or resort to legal process and without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby.
Should Landlord elect to re-enter, as herein provided, or should it take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, it may either terminate this Lease or it may from time to time, without
terminating this Lease, make such alterations and repairs as may be necessary in
order to relet the premises, and relet said premises or any part thereof for
such term or terms (which may be for a term extending beyond the term of this
Lease) and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable.
Upon each such reletting, all rentals and other sums received by Landlord
from such reletting shall be applied: first, to the payment of any indebtedness
other than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs and expenses of such reletting, including reasonable brokerage fees
and attorneys' fees and of costs of such alterations and repairs and costs of
moving other tenants in the Premises in order to relet the leased premises, such
as repairs and alterations to other portions of the Premises or reduced rental
to other tenants; third, to the payment of rent and other charges due and unpaid
hereunder, and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and payable hereunder. If such
rentals and other sums received from such reletting during any month be less
than that to be paid during that month by Tenant hereunder, Tenant shall pay
such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall in no event be entitled to any rent collected as payable
under any reletting, whether or not such rent shall exceed the rent reserved in
this Lease. No such re-entry or taking possession of said premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction. Notwithstanding any
such reletting without termination, Landlord may at any time hereafter elect to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur
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by reason of such breach, including the cost of recovering the leased premises,
reasonable attorneys' fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the leased premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable from
Tenant to Landlord.
Abandonment of the leasehold shall not terminate tenant's obligations
hereunder. In the event tenant seeks relief pursuant to 11 USC of the United
States Bankruptcy Code, the parties hereto agree that any relief approved by the
court thereunder after Motion of the Debtor will only be effective as of the
date of the Hearing on such Motion, or such later date as the court may
designate. Landlord shall be entitled to immediate administrative payment of all
amounts due under the lease from the date of filing any Petition in Bankruptcy,
until said relief may be granted by the court.
In case suit shall be brought for recovery of possession of the leased
premises, for the recovery of rent or any other amount due under the provisions
of this Lease, or because of the breach of any other covenant herein contained
on the part of Tenant to be kept performed, and a breach shall be established,
Tenant shall pay to Landlord all expenses incurred therefor, including
reasonable attorneys' fees.
If any amount due from Tenant is not received by Landlord within five (5)
days of when due, Tenant shall pay to the Landlord an additional sum equal to
five (5%) percent of such overdue amount as a late charge. Payment of any such
late charge shall not excuse or cure any default or prevent Landlord from
exercising any of its other rights and remedies.
ARTICLE 18. ACCESS BY LANDLORD
Landlord or Landlord's agent shall have the right to enter the leased
premises at all reasonable times to examine the same and to show them to
prospective purchasers or mortgagees of the building and to make such repairs,
alterations, improvements, or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into and upon said
premises that may be required therefor without the same constituting an eviction
of Tenant in whole or in part, and the rent reserved shall in no way abate while
said repairs, alterations, improvements, or additions are being made, by reason
of loss or interruption of business of Tenant, or otherwise. During the six (6)
months prior to the expiration of the term of this Lease or any renewal term,
Landlord may exhibit the premises to prospective tenants and place upon the
premises the usual notices "To Let" or "For Rent", which notices Tenant shall
permit to remain thereon without molestation.
ARTICLE 19. TENANT'S PROPERTY
Tenant shall be responsible for and shall pay before delinquency all
municipal, county, state, and federal taxes assessed during the term of this
Lease against any leasehold interest or Tenant's property.
The Landlord shall not be responsible or liable to the Tenant for any loss
or damage that may be occasioned by or through the acts or omissions of persons
occupying adjoining premises or any part of the premises adjacent to or
connected with the premises hereby leased or any part of the building of which
the leased premises are a part or for any loss or damage resulting to the Tenant
or its property from bursting, stoppage, or leaking of water, gas, sewer, or
steam pipes or for any damage or loss of property within the leased premises
from any cause whatsoever (unless caused by the neglect or act of Landlord).
Tenant shall give immediate notice to Landlord in case of fire or accidents
in the leased premises or in the building of which the premises are a part or of
defects therein or in any fixtures or equipment.
ARTICLE 20. HOLDING OVER
Any holding over after the expiration of the term hereof with the consent
of the Landlord shall be construed to be a tenancy from month to month and shall
otherwise be on the same terms and conditions herein specified so far as
applicable.
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ARTICLE 21. RULES AND REGULATIONS
Tenant agrees to comply with and observe all rules and regulations
established by Landlord from time to time, provided the same shall apply
uniformly to all tenants of the Premises. Tenant's failure to keep and observe
said rules and regulations shall constitute a breach of the terms of this Lease
in the manner as if the same were contained herein as covenants. "Rules and
Regulations" are attached as Exhibit B and are made a part hereof. Landlord
reserves the right to change, alter, or amend said Rules and Regulations upon
giving tenant thirty (30) days written notice; provided that any such change
shall not: unreasonably interfere with Tenant's use of the leased premises; or
result in additional cost or expense to Tenant.
ARTICLE 22. QUIET ENJOYMENT
Upon payment by the Tenant of the rent herein provided and upon the
observance and performance of all the covenants, terms, and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the leased premises for the term hereby demised without hindrance
or interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through, or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease and any mortgages to which this Lease is
subordinate.
ARTICLE 23. SECURITY DEPOSIT
The Landlord herewith acknowledges receipt of the sum set forth in 1(f),
which it is to retain as security for the faithful performance of all covenants,
conditions, and agreements of this Lease, but in no event shall the Landlord be
obliged to apply the same upon rents or other charges in arrears or upon damages
for the Tenant's failure to perform the said covenants, conditions, and
agreements; the Landlord may so apply the security, at its option; and the
Landlord's right to the possession of the leased premises for nonpayment of rent
or for any other reason shall not in any event be affected by reason of the fact
that the Landlord holds this security. The said sum, if not applied toward the
payment of rent in arrears or toward the payment of damages suffered by the
Landlord by reason of the Tenant's breach of the covenants, conditions, and
agreements of this Lease, is to be returned to the Tenant without interest when
this Lease is terminated, according to these terms, and in no event is the said
security to be returned until the Tenant has vacated the premises and delivered
possession to the Landlord.
In the event that the Landlord repossesses itself of the leased premises
because of the Tenant's default or because of the Tenant's failure to carry out
the covenants, conditions, and agreements of this Lease, the Landlord may apply
the said security upon all damages suffered to the date of said repossession and
may retain the said security to apply upon such damages as may be suffered or
shall accrue thereafter by reason of the Tenant's default or breach. The
Landlord shall not be obliged to keep the said security as a separate fund or
pay interest thereon but may mix the said security with its own funds.
ARTICLE 24. ENVIRONMENTAL
Tenant represents, warrants and covenants that the leased premises shall
not be used for the temporary or permanent generation, storage, treatment,
manufacture, handling, processing, disposal, release, or discharge of any toxic,
hazardous, industrial or chemical materials, substances, wastes or pollutants,
including but not limited to any substance, material, waste, contaminant or
pollutant which is (i) subject to regulation under any federal, state, county,
municipal and other governmental laws, statutes, regulations, orders, permits,
decrees and ordinances ("Law") from time to time in effect or (ii) known to be a
hazard to health, safety, property or the environment (collectively, "Hazardous
Materials"), and that the Premises will be operated and maintained, and the
occupants of the Premises shall conduct their activities in the building in
compliance with all Laws and in a manner calculated to prevent damage to human
health, safety, welfare and the environment. In no event shall Tenant dispose
of, or permit the disposal of,
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Hazardous Materials in, on or under the Premises or property adjacent to the
Premises, and all Hazardous Materials shall be removed from the Premises in the
manner set forth below. In no event shall Tenant permit or cause a release of
Hazardous Materials at or from the Premises which is reportable or cognizable
under the federal Comprehensive Environmental Response Compensation and
Liability Act (42 USCA 9601 et seq.) or any other Laws. Tenant shall not burn,
or permit the burning of, any trash, garbage or Hazardous Materials at any time
in or about the Premises. Notwithstanding anything in this Lease to the
contrary, Tenant shall not store, or permit the storage of, waste (whether
recyclable or otherwise) or Hazardous Materials, except as is customarily used
or stored at similar premises, in non-leaking and secure above-ground
containers, and in compliance with all applicable Laws, and as is stored in a
manner calculated to prevent damage to human health, safety, welfare and the
environment, and the materials in which are removed from the leased premises
substantially prior to the time that such containers have been filled to
capacity, Tenant shall not introduce or permit the introduction of any material
except uncontaminated sanitary sewage and uncontaminated wash waters into the
sewers, it being recognized that this provision shall not prevent ordinary and
customary hand washing within the Premises. Tenant shall indemnify, defend and
hold harmless Landlord, its employees, agents, partners, officers and directors,
from and against all claims, liabilities, damages, costs and expenses, including
reasonable attorney fees, fees of environmental consultants, and any clean-up
costs, arising from any breach of the foregoing representations, warranties and
covenants or as the result of the presence or release of any Hazardous Materials
within, on or flowing from the leased premises.
ARTICLE 25. LANDLORD INDEMNITY
A. Representations and Warranties of Landlord. Landlord hereby represents and
warrants to Tenant that Landlord is the owner of the Premises and that Landlord
has title thereto and the full right to enter into this Lease with Tenant, and
that the premises are properly zoned for the intended use by Tenant.
B. Environmental Conditions. Landlord hereby represents and warrants to Tenant
that the Premises have not been used to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce or process hazardous
substances (as defined in a federal, state or local law or regulation), or other
dangerous or toxic substances, or solid wastes, except in compliance with all
applicable federal, state and local laws or regulations, and has not caused or
permitted and has no knowledge of the release of any hazardous substances on the
Leased Premises.
C. Indemnification by Landlord. Landlord, its successors and assigns, shall
defend, indemnify and hold harmless Tenant and its directors, officers,
shareholders, agents, successors and assigns from and against any and all costs,
losses, claims, liabilities, fines, expenses, penalties, and damages (including
reasonable legal fees and any remediation costs) in connection with or resulting
from:
(i) the existence or occurrence of any environmental condition on the
Leased Premises or environmental claims with respect thereto arising from events
occurring prior to the date Tenant occupies the Leased Premises, including
without limitation the failure of any person to fully comply with any federal,
state or local law or regulation having as its object the protection of public
health, natural resources or the environment; or
(ii) any injury or death of any person or damage to any property from
any act or omission of Landlord or its agents or employees.
ARTICLE 26. MISCELLANEOUS PROVISIONS
WAIVER OF JURY TRIAL. Tenant and Landlord hereby waive trial by jury in any
action or proceeding arising out of or in any way relating to the performance or
non-performance of this lease by either party other than claims by third parties
for personal injury or property damage.
WAIVER. One or more waivers of any covenant or condition by Landlord shall
not be construed as a waiver of a subsequent breach of the same covenant or
condition, and the consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to render
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unnecessary Landlord's consent or approval to or of any subsequent similar act
by Tenant. No breach of a covenant or condition of this Lease shall be deemed to
have been waived by Landlord unless such waiver be in writing signed by
Landlord.
ENTIRE AGREEMENT. This Lease and the Exhibits, and Rider, if any, attached
hereto and forming a part hereof, set forth all the covenants, promises,
agreements, conditions, and understandings between Landlord and Tenant
concerning the leased premises, and there are no covenants, promises,
agreements, conditions, or understandings, either oral or written, between them
other than are herein set forth. 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.
INTERPRETATION. Nothing contained herein shall be deemed or construed by
the parties hereto, nor by any third party as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
rent nor any other provision contained herein, nor any acts of the parties
herein shall be deemed to create any relationship between the parties hereto
other than the relationship of Landlord and Tenant
DELAYS. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder 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 of a like nature not the fault of the party delayed in
performing work or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay. The party entitled to such extension
hereunder shall give written notice as soon as possible to the other party
hereto of its claim of rights to such extension and the reason(s) therefor. The
provisions of this section shall not operate to excuse Tenant from prompt
payment of rent, percentage rent, or any other payments required by the terms of
this Lease.
NOTICES. Any notice, demand, request, or other instrument which may be or
is required to be given under this Lease shall be sent by United States First
Class mail, postage prepaid, and shall be addressed as set forth on page one (1)
or at such other address as the Landlord or tenant may designate by written
notice.
NO OPTION. The submission of this Lease for examination does not constitute
a reservation of or option for the leased premises and shall vest no right in
either party. This Lease becomes effective as a lease only upon execution and
delivery thereof by the parties hereto.
BROKER'S COMMISSION. Except for the brokerage fee to be paid by Landlord
pursuant to paragraph 13 of the Preliminary Agreement to Lease for Commercial
Property dated April 14 and 15, 2005 executed by Tenant and Landlord, Tenant
represents and warrants unto the Landlord that there are no claims for brokerage
commissions or finder's fees in connection with this Lease, 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 the indemnifying party
(including, without limitation, the cost of counsel fees in connection
therewith); such agreement to survive the termination of this Lease.
RECORDING. Tenant shall not record this Lease without the written consent
of Landlord; however, upon request of either party, the other party shall join
in the execution of a memorandum or so-called "short form" of this Lease for the
purposes of recordation. Said memorandum or short form Lease shall describe the
parties, the leased premises, the term of this Lease, any special provisions,
and shall incorporate this Lease by reference.
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LAWS OF THE STATE OF MICHIGAN. This Lease shall be governed by, and
construed in accordance with, the laws of the State of Michigan. If any
provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease shall not be affected thereby, and each provision of the Lease
shall be valid and enforceable to the fullest extent permitted by the law.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease
as of the day and year first above written.
In the Presence of:
TENANT LANDLORD
Mercantile Bank Joe D Pentecost Trust
of West Michigan
By /s/ Joseph Calvaruso, SVP /s/ Rita F. Stoskopf
---------------------------------- ----------------------------------------
Joseph Calvaruso, SVP Rita F. Stoskopf, Trustee
/s/ Robert Phipps
----------------------------------------
Robert Phipps, Trustee
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EXHIBIT A
(Site Plan)
EXHIBIT B
RULES AND REGULATIONS
Tenant covenants and agrees with Landlord that:
(A) Tenant shall not use handbills or balloons for advertising at the Office
Building.
(B) No awnings or other projections shall be attached to the exterior walls of
the leased premises or the building of which they form a part.
(C) All loading and unloading of goods shall be done only at such time, in the
areas, and through the entrance designated for such purpose by Landlord.
(D) All garbage and refuse shall be kept in the kind of container, be placed in
the areas, and prepared for collection in the manner and at the times and places
specified by Landlord.
(E) No aerial shall be erected on the roof, on exterior walls of the leased
premises or the Office Building, or on the grounds, without in each instance
having obtained Landlord's prior written consent. Any such device or aerial so
installed without such prior consent shall be subject to removal without notice
at any time.
(F) No loudspeakers, television sets, phonographs, radios, or other devices
shall be used in a manner so as to be heard or seen outside the leased premises.
(G) Tenant shall not permit any obstructions or merchandise in the service
corridors, sidewalks, entrances, passages, courts, corridors, elevators, or
stairways.
(H) Tenant and Tenant's employees shall park their cars only in those portions
of the parking area designated for employee parking by Landlord. Tenant shall
furnish Landlord the state automobile license numbers assigned to the car or
cars of Tenant and its employees within five (5) days of any request to do so by
Landlord. Tenant shall not store any vehicles on site. NO OVERNIGHT PARKING.
(I) Tenant shall use at Tenant's cost such pest extermination contractor as
Landlord may direct and at such intervals as Landlord may reasonably require,
provided the cost thereof is competitive to any similar service available to
Tenant.
(J) Tenant shall not make or permit any noise or odor which Landlord deems
objectionable to emanate from the leased premises, and no person shall use the
leased premises as sleeping quarters, sleeping apartments, or lodging rooms.
(K) Tenant shall obtain all permits or licenses necessary to conduct its
business.
TENANTS INITIAL'S /s/ JC LANDLORD'S INITIAL'S /s/ RFS RP
------------------- -------------------
DATE 4-29-05 DATE 4-29-05
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EXHIBIT C
SIGNAGE
With the prior written consent of Landlord, which consent shall not be
unreasonably withheld, Tenant shall be entitled to display such sign or signs
advertising Tenant's business at the Premises as shall be permitted by local
ordinances.
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EXHIBIT D
(Floor Plan)