Exhibit 10.11
LEASE AGREEMENT
(ELBERTA, ALABAMA
BRANCH)
FOR
B ANKING F ACILITIES
VISION BANK
Gulf Shores,
Alabama
TABLE OF CONTENTS
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1.
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LEASED
PREMISES.
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1
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2.
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LEASE
TERM.
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1
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2.1
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Continuance
During Term.
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1
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2.2
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Renewal
Options.
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1
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3.
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USE.
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1
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3.1
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Permitted
Use.
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1
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3.2
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Legal Use
and Violation of Insurance Coverage.
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1
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3.3
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Nuisance.
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2
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4.
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BASE
RENTAL.
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2
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5.
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COSTS.
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2
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6.
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SERVICES TO BE FURNISHED
BY LANDLORD.
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2
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6.1
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Defined
Services.
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2
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7.
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GRAPHICS.
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2
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8.
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CARE OF THE LEASED
PREMISES BY TENANT.
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2
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8.1
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Condition of
Leased Premises at Commencement; Notice to Landlord.
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2
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8.2
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No Waste;
Regulated Materials.
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3
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9.
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REPAIRS AND ALTERATIONS
BY TENANT
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3
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9.1
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Repair by
Tenant.
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3
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9.2
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Compliance
with Laws; Repair by Landlord.
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3
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9.3
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Alterations
or Additions by Tenant.
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3
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9.4
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Property of
Landlord.
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4
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10.
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LAWS, REGULATIONS AND
RULES.
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4
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10.1
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Applicable
Ordinances.
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4
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10.2
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Building
Rules.
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4
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11.
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ENTRY BY
LANDLORD.
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4
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12.
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FURNITURE, FIXTURES AND
PERSONAL PROPERTY.
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4
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13.
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TAXES ON TENANT’S
PROPERTY.
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4
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14.
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ASSIGNMENT AND
SUBLETTING.
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4
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14.1
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No
Assignment Without Consent.
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4
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14.2
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Assignment
or Sublease
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5
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14.3
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Further
Assignment.
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5
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14.4
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Assigns and
Sublessees.
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5
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14.5
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Transfers by
Landlord.
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5
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15.
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MECHANIC’S
LIEN.
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5
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15.1
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Tenant Not
to Permit Liens.
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5
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15.2
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Rights of
Landlord; Additional Rent.
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5
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16.
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INSURANCE.
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5
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i
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16.1
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Tenant.
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5
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16.2
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Insurance
— General.
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6
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16.3
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Subrogation.
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6
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17.
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CASUALTY
DAMAGE.
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6
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18.
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CONDEMNATION.
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6
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19.
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INDEMNITY.
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7
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19.1
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Indemnification by Tenant.
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7
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19.2
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Indemnification by Landlord.
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7
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19.3
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No
Liability.
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7
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20.
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DAMAGES FROM CERTAIN
CAUSES.
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7
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21.
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EVENTS OF
DEFAULT/REMEDIES.
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7
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21.1
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Events of
Default by Tenant.
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7
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21.2
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Landlord’s Remedies for Tenant
Default.
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8
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21.3
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Landlord’s Remedies are
Cumulative.
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9
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21.4
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Obligation
to Pay Rent is Independent; No Setoff.
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10
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21.5
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Special
Rights of Depository Institution Supervisory
Authority.
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10
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22.
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PEACEFUL
ENJOYMENT.
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10
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22.1
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Rights of
Tenant.
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10
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22.2
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Limitation.
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10
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23.
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HOLDING
OVER.
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10
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23.1
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Rental
Amount.
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10
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23.2
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No Extension
of Term.
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10
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24.
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SUBORDINATION.
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10
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24.1
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Subject to
Mortgages and Certain Leases.
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10
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24.2
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Subordination of Lease Agreement.
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11
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24.3
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Approval of
Lease Agreement by Landlord’s Mortgagee.
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11
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24.4
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Attorney-in-Fact.
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11
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24.5
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Estoppel
Certificates; Financial Certificates.
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24.6
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Attornment.
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11
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24.7
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Notice to
Mortgagees.
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11
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25.
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ATTORNEY’S
FEES.
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11
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26.
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NO IMPLIED
WAIVER.
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26.1
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No
Waiver.
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11
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26.2
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Partial
Payment.
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12
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27.
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PERSONAL
LIABILITY.
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12
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28.
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FORCE
MAJEURE.
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12
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29.
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RELATIONSHIP OF
PARTIES.
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12
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30.
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MISCELLANEOUS.
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12
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30.1
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Severability.
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12
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ii
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30.2
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Recordation.
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12
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30.3
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Governing
Law.
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12
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30.4
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Time of
Performance.
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12
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30.5
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Commissions.
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12
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30.6
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Parking.
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13
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30.7
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Effect of
Delivery of this Lease Agreement.
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13
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30.8
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Section
Headings.
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13
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30.9
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Entire
Agreement.
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13
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30.10
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Successors
and Assigns.
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13
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30.11
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Notices.
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13
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30.12
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Gender.
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13
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30.13
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Time of the
Essence.
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13
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30.14
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Building
Name.
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13
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30.15
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No
Merger.
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14
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31.
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EXHIBITS AND
SCHEDULES.
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14
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iii
Exhibit A Floor Plan of Leased
Premises
iv
STATE OF ALABAMA
COUNTY OF BALDWIN
LEASE AGREEMENT
This Lease Agreement made and
entered into on this the 1 st day of November, 2004, between
Elberta Holdings, LLC , an Alabama limited liability company
(hereinafter called (“ Landlord” ), and
VISION BANK , an Alabama banking corporation (hereinafter
called (“ Tenant” ). Tenant’s address for
purposes hereof is P. O. Box 4649, Gulf Shores, Alabama
36547.
W I T N E S S E T H:
1. LEASED PREMISES.
Subject to and upon the terms,
provisions and conditions hereinafter set forth, and each in
consideration of the duties, covenants and obligations of the other
hereunder, Landlord does hereby lease, demise and let to Tenant and
Tenant does hereby lease from Landlord those certain premises (the
“ Leased Premises ”) in the buildings (the
“ Buildings ”) located at 24989 State Street and
13027 Main Street, Elberta, Alabama, such Leased Premises being
approximately 4,618 square feet and 800 square feet of Rentable
Area, respectively, as reflected on the floor plan of such Leased
Premises attached hereto and made a part hereof as Exhibit
A.
2. LEASE TERM.
2.1 Continuance During Term . This Lease
Agreement shall continue in force during a period beginning on the
Commencement Date (hereafter defined) and ending on midnight on the
date which is ten (10) years after the first day of the first
calendar month immediately following the calendar month in which
the Commencement Date occurs (the “ Lease Term
”), unless this Lease Agreement is sooner terminated or
extended to a later date under any other term or provision of this
Lease Agreement. For purposes of this Lease, the term “
Commencement Date ” shall mean the earlier of (a) the
date the Leased Premises are ready for occupancy by Tenant for the
operation of its business, or (b) November 1, 2004.
2.2 Renewal Options . Provided that no Event
of Default has occurred under this Lease and is continuing, Tenant
shall have an option to renew this Lease for two additional terms
of five (5) year each on the same terms and conditions as set forth
herein, except that Landlord shall be entitled to raise the Base
Rental for such extension period, in its sole discretion, and
Tenant shall thereafter have sixty (60) days to agree or terminate
following receipt of notification from Landlord not less than
ninety (90) days prior to expiration of the original lease
term.
3. USE.
3.1 Permitted Use . The Leased Premises are
to be used and occupied by Tenant solely for general office
purposes, including but not limited to the operation of a
bank.
3.2 Legal Use and Violation of Insurance
Coverage . Tenant agrees not to occupy or use, or permit any
portion of the Leased Premises to be occupied or used for any
business or purpose that is unlawful, disreputable or deemed to be
extra-hazardous. Tenant will not keep any substance or carry on or
permit any operation which might emit offensive gas, smoke, fumes,
dust, odors, waste products or conditions into other portions of
the Buildings, or use any apparatus which might make undue noise or
set up vibrations in the Buildings. Tenant will not permit anything
to be done which would increase the fire and extended coverage
insurance rate on the Buildings or contents, and if there is any
increase in such rates by reason of acts of Tenant, then Tenant
agrees to pay such increase promptly upon demand therefor by
Landlord.
Page 1
3.3 Nuisance . Tenant agrees to conduct its
business and control its agents, employees, invitees and visitors
in such manner as not to create any nuisance, or interfere with,
annoy or disturb any other tenant or Landlord in the operation of
the Buildings.
4. BASE RENTAL.
Tenant hereby agrees to pay a base
annual rental (herein called the “ Base Rental
”) of $65,016 at the rate of $12.00 per square foot of
Rentable Area. The Tenant shall also pay, as additional rent, all
such other sums of money as shall become due and payable by Tenant
to Landlord under this Lease Agreement. The Base Rental shall be
due and payable in twelve (12) equal installments of $5,418 on the
first day of each calendar month during the initial term and any
extensions or renewals thereof, and Tenant hereby agrees to pay
such rent to Landlord monthly in advance without demand and without
any reduction, abatement, counterclaim or setoff, at such address
as may be designated by Landlord. The “Base Rental,”
and any other additional rental shall be collectively referred to
as “ Rent ” or “ rent .” If
the term of this Lease Agreement as heretofore established
commences on other than the first day of a month or terminates on
other than the last day of a month, then the Rent provided for
herein for such month or months shall be prorated and the
installment or installments so prorated shall be paid in advance.
The Base Rental shall be adjusted twice during the Lease Term: (1)
upon the first day of the fourth year of the Lease Term; and, (ii)
upon the first day of the seventh year of the Lease Term
(collectively, the “Adjustment Dates”). Upon each of
the Adjustment Dates, the Base Rental shall be adjusted to a figure
determined to be “market rent” by a MAI-designated
appraiser. The Tenant shall bear the expense of such appraiser. All
past due installments of rent shall bear interest at the lesser of
(i) the maximum rate permitted by applicable law, or (ii) three (3)
percentage points above the Prime Rate (hereinafter defined), from
the date due until paid. The term “ Prime Rate ”
for purposes of this Lease Agreement, shall mean the rate as
published in the W ALL
S TREET J OURNAL on
the date or dates on which reference to the Prime Rate is being
made (or in the event no such quotation is available on such date,
as quoted on the day most immediately preceding the date of
determination on which such a quotation was available), and shall
not be subject to adjustment, but shall in no event exceed the
maximum rate provided by applicable law.
5. COSTS.
Tenant shall bear the expense of all
insurance on the Property and Buildings, common area expenses, and
all real estate taxes. Tenant agrees to pay Landlord within fifteen
(15) days of receipt of invoice from Landlord or direct billing for
any charges not directly invoiced to Tenant. Any payments advanced
by Landlord shall be fully reimbursed by Tenant. Tenant
acknowledges this is a triple net lease.
6. SERVICES TO BE FURNISHED BY
LANDLORD.
6.1 Defined Services . Tenant agrees no
services are to be provided by Landlord.
7. GRAPHICS.
Landlord shall provide and install,
at Tenant’s cost, all letters or numerals at doors to the
Leased Premises. All such letters and numerals shall be in the
standard graphics for the Buildings, and no others shall be used or
permitted on the Leased Premises without Landlord’s prior
written consent. No signs, symbol or identifying mark shall be put
upon the Buildings, or in the halls, elevators, staircases,
entrances, parking areas or upon the doors or walls, without prior
written consent of Landlord.
8. CARE OF THE LEASED PREMISES BY
TENANT.
8.1 Condition of Leased Premises at Commencement;
Notice to Landlord . The taking of possession of the Leased
Premises by Tenant shall be conclusive evidence as against Tenant
(a) that it accepts the Leased Premises as suitable for the
purposes for which same are leased, subject to “punch
list” items to be installed or repaired by Landlord contained
in a punch list which must be submitted, if at all, to Landlord by
Tenant within ten (10) days after the Commencement Date; (b) that
it accepts the Property as being in a good and satisfactory
condition; and (c) that Tenant waives any defects in the Leased
Premises and its appurtenances and in all other parts of the
Property. Any subsequent modifications to the Leased Premises
required by governmental laws, rules or regulations, including
without limitation
Page 2
modifications required under the Americans with
Disabilities Act of 1990 and similar legislation, shall be the sole
responsibility of Tenant. Landlord shall not be liable to Tenant or
any of its agents, employees, licenses, servants or invitees for
any injury or damage to person or property due to the condition or
design of or any defect in the Buildings or its mechanical systems
and equipment which may exist or occur, or due to the leaking of
gas, water, sewer, or steam unless such injury or damage is due to
the gross negligence or willful misconduct of Landlord (but not
including the negligence or willful misconduct of Landlord’s
contractors); and Tenant, with respect to itself and its agents,
employees, licensees, servants and invitees shall have the
responsibility for all risks of injury or damage to person or
property, either proximate or remote, by reason of the condition of
the Leased Premises or the Property except for injury or damage
caused by the gross negligence or willful misconduct of Landlord.
Except as specifically set forth herein, no promises of the
Landlord to alter, remodel, repair or improve the Leased Premises
or the Buildings and no representations respecting the condition of
the Leased Premises or the Buildings have been made by Landlord to
Tenant. At all times during the Lease Term, including any
extensions thereof, Tenant agrees to give Landlord prompt notice of
any apparent defective condition in or about the Leased
Premises.
8.2 No Waste; Regulated Materials . Tenant
shall not commit waste or allow any waste to be committed on any
portion of the Leased Premises, and at the termination of this
Lease Agreement, Tenant shall deliver the Leased Premises to
Landlord in as good condition as at the date of the commencement of
the term of this Lease Agreement, ordinary wear and use excepted.
Tenant shall not treat, store, handle, generate, locate on,
discharge from, or dispose on the Leased Premises or the Buildings
any materials regulated, controlled, limited or restricted by
governmental laws, rules, regulations or ordinances.
9. REPAIRS AND ALTERATIONS BY
TENANT.
9.1 Repair by Tenant . Tenant shall, at
Tenant’s own cost and expense, repair any damage done to the
Buildings, or any part thereof, including replacement of damaged
portions or items, caused by Tenant or Tenant’s agents,
guests, employees, invitees, licensees, customers or visitors, and
Tenant covenants and agrees to make all such repairs as may be
required to restore the Buildings to as good a condition as it was
in prior to such damage. Tenant further agrees to maintain and keep
the interior of the Leased Premises in good repair and condition at
Tenant’s expense. Repair and replacement parts, materials and
equipment shall be of a quality equivalent to those initially
installed in the Buildings or Leased Premises.
9.2 Compliance with Laws; Repair by Landlord
. All such work or repairs by Tenant shall be effected in
compliance with all applicable laws; provided, however, if Tenant
fails to make such repairs or replacements promptly, Landlord may,
at its option, make repairs or replacements, and Tenant shall pay
to Landlord the cost thereof, within ten (10) days of
Landlord’s demand therefor, as additional rent.
9.3 Alterations or Additions by Tenant .
Tenant agrees with Landlord not to make or allow to be made any
alterations to the Leased Premises except in compliance with the
provisions of this Section.
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(a)
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Tenant shall be
entitled to make minor alterations such as placing items on the
walls of the Leased Premises so long as once they are removed,
Tenant repairs any damage caused thereby. Any and all such
alterations, physical additions, or improvements, when made to the
Leased Premises by Tenant, shall at once become the property of
Landlord and shall be surrendered to Landlord upon the termination
of this Lease by lapse of time or otherwise; provided, however,
this paragraph shall not apply to movable equipment or furniture
owned by Tenant. If, however, Landlord so requests in writing,
Tenant will, immediately prior to termination of this Lease, remove
any and all physical additions to the Leased Premises, including
partitions, and will repair any damage caused by such removal, all
at Tenant’s cost.
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(b)
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If the Tenant performs any
construction work on the Leased Premises, Tenant’s work will
be performed with materials of good quality. Tenant shall not do
any construction work or alterations, nor shall Tenant install any
equipment without first obtaining Landlord’s written approval
of the plans and specifications therefor. The approval of the
Landlord of such plans and specifications shall not constitute the
assumption of any liability on the part of the Landlord for their
accuracy or their conformity with requirements of any buildings
code, or other municipal or governmental regulation or ordinance,
and Tenant shall be solely responsible for such plans. Tenant shall
be responsible for all necessary permits, governmental or
otherwise, to include special use permits, signage permits,
etc.
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Page 3
9.4 Property of Landlord . Any and all
alterations to the Leased Premises shall become the property of
Landlord upon termination of this Lease Agreement (except for
movable equipment or furniture owned by Tenant).
10. LAWS, REGULATIONS AND RULES.
10.1 Applicable Ordinances . Tenant shall
comply with all applicable laws, ordinances, rules and regulations
of any governmental entity, agency or authority having jurisdiction
over the Leased Premises or Tenant’s use of the Leased
Premises.
10.2 Building Rules . Tenant shall comply with
the Building Rules adopted by Landlord and set forth in Schedule 2
hereto, as they may be amended by Landlord from time to time (the
“ Building rules ”), and will cause all of its
agents, employees, invitees and visitors to do so. All changes to
the Building rules will be furnished by Landlord to Tenant in
writing.
11. ENTRY BY LANDLORD.
Tenant shall permit Landlord or its
agents or representatives to enter into and upon any part of the
Leased Premises upon prior notice and at all reasonable hours (and
in emergencies at all times) to inspect the condition, occupancy or
use, to show the Leased Premises to prospective purchasers,
mortgagees, tenants or insurers, or to clean or make repairs,
alterations or additions. Tenant shall not be entitled to any
abatement or reduction of rent by reason of this right of
entry.
12. FURNITURE, FIXTURES AND PERSONAL
PROPERTY.
Tenant may remove its trade
fixtures, office supplies and movable office furniture and
equipment not attached to the Buildings provided: (a) such removal
is made within (30) days after the termination of the Term of this
Lease; (b) Tenant is not in default of any obligation or covenant
under this Lease at the time of such removal at Tenant’s sole
cost and expense. All other property at the Leased Premises and
alterations and additions to the Leased Premises (including
wall-to-wall carpet, paneling or other wall covering) and any other
article attached or affixed to the floor, wall or ceiling of the
Leased Premises shall become the property of Landlord and shall
remain upon and be surrendered with the Leased Premises as a part
thereof at the termination of this Lease, by lapse of time or
otherwise, Tenant hereby waiving all rights to any payment or
compensation therefor. If, however, Landlord so requests in
writing, Tenant will, immediately prior to termination of this
Lease, remove any and all alterations, additions, fixtures,
equipment and property placed or installed by it in the Leased
premises, and not permanently affixed thereto, and will repair any
damage caused by such removal, all at Tenant’s
cost.
13. TAXES ON TENANT’S
PROPERTY.
Tenant shall be liable for all taxes
levied or assessed against personal property, furniture or fixtures
placed by Tenant in the Leased Premises. If any such taxes for
which Tenant is liable are levied or assessed against Landlord or
Landlord’s property and if Landlord elects to pay the same or
if the assessed value of Landlord’s property is increased by
inclusion of personal property, furniture or fixtures placed by
Tenant in the Leased Premises, and Landlord elects to pay the taxes
based on such increase, then Landlord shall notify Tenant, and
Tenant shall pay to Landlord upon demand that part of such taxes
for which Tenant is liable hereunder.
14. ASSIGNMENT AND SUBLETTING.
14.1 No Assignment Without Consent . Tenant
shall not assign, sublease, transfer, pledge, or encumber this
Lease Agreement or any interest therein without Landlord’s
prior written consent. Any attempted assignment, sublease or other
transfer or encumbrance by Tenant in violation of the terms and
covenants of this paragraph shall be void.
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14.2 Assignment or Sublease . In the event
Tenant shall desire to assign this Lease Agreement or sublet the
Leased Premises or any part thereof, Tenant shall give Landlord
written notice of such desire, along with the name of the proposed
assignee or sublessee and a copy of the proposed assignment or
sublease instrument, at least ninety (90) days in advance of the
date on which Tenant desires to make such assignment or sublease.
Landlord shall then have a period of thirty (30) days following
receipt of such notice within which to notify Tenant in writing
that Landlord elects either (i) to permit Tenant to assign or
sublet such space, (ii) to refuse such request to assign or
sublease such space (which refusal may be made by Landlord without
regard to any commercially reasonable standard), or (iii) to
terminate this Lease Agreement as to the space so affected as of
the date so specified by Tenant in which event Tenant will be
relieved of all obligations arising thereafter as to such space.
Any rent or other payments otherwise due Tenant as a result of
assignment or subletting of all or any portion of the Leased
Premises in excess of the rent due Landlord by Tenant on such space
hereunder shall be payable as additional rent to Landlord by Tenant
promptly upon receipt by Tenant, and Tenant hereby assigns all
rights it might have or ever acquire in any such proceeds to
Landlord. If Landlord should fail to notify Tenant in writing of
such election within said thirty (30) day period, Landlord shall be
deemed to have elected option (i) above. No assignment or
subletting by Tenant shall relieve Tenant of any obligation under
this Lease Agreement. Any consent of Landlord hereunder is subject
to receipt by Landlord of an executed copy of the sublease or
assignment.
14.3 Further Assignment . Notwithstanding
Landlord’s consent on any one occasion, the rights of
Landlord set forth in Section 14.2 shall apply to any further
subletting or assignment.
14.4 Assigns and Sublessees . The provisions
of this Section shall be binding on any permitted assigns or
sublessees of Tenant.
14.5 Transfers by Landlord . Landlord shall
have the right to transfer and assign, in whole or in part, all its
rights and obligations hereunder and in the Buildings and the
Leased Premises referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such
obligations.
15. MECHANIC’S LIEN.
15.1 Tenant Not to Permit Liens . Tenant will
not create or permit to be created or to remain, and will
discharge, any lien (including, but not limited to, the liens of
mechanics, laborers, artisans or materialmen for work or materials
alleged to be done, furnished or delivered in connection with the
Leased Premises), encumbrance, or other charge upon the Leased
Premises or any part thereof, upon Landlord’s interest
therein, or upon Tenants leasehold interest; provided, that Tenant
shall not be required to discharge any such liens, encumbrances or
charges as may be placed upon the Leased Premises or Buildings by
the act of anyone other than Tenant or Tenant’s agents,
employees, servants or contractors. Provided that any
Landlord’s Mortgagee consents thereto in writing and Tenant
complies with all requirements of such Landlord’s Mortgagee
with respect thereto and provided further, Tenant furnishes
security reasonably acceptable to Landlord and any such
Landlord’s Mortgagee, Tenant shall have the right to contest,
in good faith by appropriate legal proceedings, the validity or
amount of any mechanics’, laborers’, artisans’ or
materialmen’s lien or other claimed lien. On final
determination of such lien or such claim for lien, Tenant will
immediately pay any judgement rendered with all proper costs and
charges and shall have such lien released or judgement satisfied at
Tenant’s sole expense. Tenant will pay, protect and indemnify
Landlord, within ten (10) days after demand therefor, from and
against all liabilities, losses, claims, damages, costs and
expenses, including reasonable attorneys’ fees, incurred by
Landlord by reasons of the filing of any lien and/or removal of
same.
15.2 Rights of Landlord; Additional Rent . If
any such lien is claimed against the Leased Premises, then, in
addition to any other right or remedy of Landlord, Landlord may,
but shall not be obligated to, discharge the same. Any amount paid
by Landlord for such purposes shall be paid by Tenant to Landlord
as additional rent within ten (10) days of Landlord’s demand
therefor.
16. INSURANCE.
16.1 Tenant . Tenant shall, during the Term
and at its sole expense, obtain and keep in force, with Tenant,
Landlord, and the mortgagees of Landlord, named as insureds, as
their respective interests may appear, (i) comprehensive
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general liability insurance coverage, personal
injury, bodily injury, broad form property damage, operations
hazard, owner’s protective coverage, contractual liability
and products and completed operations liability in limits not less
than $1,000,000.00 inclusive, and (ii) fire and extended coverage
i