Exhibit 10.84
LEASE AGREEMENT
by and between
ANCHOR COURT, L.L.C.,
a Michigan limited liability company,
as LANDLORD
and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.,
a Delaware corporation,
as TENANT
Premises: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dated as of: June 29, 2001
TABLE OF CONTENTS
PAGE
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1. Demise of Premises....................................................... 1
2. Certain Definitions...................................................... 1
3. Title and Condition...................................................... 9
4. Use of Leased Premises; Quiet Enjoyment.................................. 10
5. Term..................................................................... 10
6. Basic Rent............................................................... 11
7. Additional Rent.......................................................... 11
8. Net Lease; Non-Terminability............................................. 12
9. Payment of Impositions................................................... 13
10. Compliance with Laws and Easement Agreements; Environmental Matters...... 14
11. Liens; Recording......................................................... 15
12. Maintenance and Repair................................................... 16
13. Alterations and Improvements; Expansion Options.......................... 16
14. Permitted Contests....................................................... 17
15. Indemnification.......................................................... 18
16. Insurance................................................................ 19
17. Casualty and Condemnation................................................ 21
18. Termination Events....................................................... 23
19. Restoration.............................................................. 24
20. Procedures upon Purchase................................................. 25
21. Assignment and Subletting; Prohibition Against Leasehold Financing....... 27
22. Events of Default........................................................ 29
23. Remedies and Damages upon Default........................................ 30
24. Notices.................................................................. 33
25. Estoppel Certificate..................................................... 33
26. Surrender; Holding Over.................................................. 34
27. No Merger of Title....................................................... 35
28. Books and Records........................................................ 35
29. Determination of Value................................................... 35
30. Non-Recourse as to Landlord.............................................. 37
31. Costs; Financing......................................................... 37
32. Subordination, Non-Disturbance and Attornment............................ 38
33. Tax Treatment; Reporting................................................. 38
34. Right of First Refusal................................................... 38
35. Miscellaneous............................................................ 39
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EXHIBITS
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Exhibit A - Premises
Exhibit B - Fixtures
Exhibit C - Schedule of Permitted Encumbrances
Exhibit D - Rent Schedule
Exhibit E - List of LaSalle Bank National Association Loan Documents
Exhibit F - Form of Subordination, Non-Disturbance and Attornment Agreement
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LEASE AGREEMENT, made as of this 29th day of June, 2001, between
ANCHOR COURT, L.L.C., as landlord, a Michigan limited liability company
("LANDLORD"), with an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS
CO., as tenant, a Delaware corporation ("TENANT"), with an address at ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
In consideration of the rents and provisions herein stipulated to be
paid and performed, Landlord and Tenant hereby covenant and agree as follows:
1. Demise of Premises. Landlord hereby demises and lets to Tenant,
and Tenant hereby takes and leases from Landlord, for the term and upon the
provisions hereinafter specified, the following described property (hereinafter
referred to as the "LEASED PREMISES"): (a) the premises described in Exhibit A
hereto, together with the Appurtenances (collectively, the "LAND"); (b) the
buildings, structures and other improvements now or hereafter constructed on
the Land (collectively, the "IMPROVEMENTS"); and (c) the fixtures and other
property described in Exhibit B hereto (collectively, the "FIXTURES").
2. Certain Definitions.
"ADDITIONAL RENT" shall have the meaning assigned to such term in
Paragraph 7(a).
"ADJOINING PROPERTY" shall mean all sidewalks, driveways, curbs, gores
and vault spaces adjoining any of the Leased Premises.
"ALTERATION AMOUNT" shall mean $1,000,000 for the first Lease Year,
increased for each succeeding Lease Year as follows: (a) multiply the relevant
amount then in effect (i.e., $1,000,000) by a fraction the numerator of which
shall be the difference between the average CPI for the Prior Months ending
prior to the applicable adjustment date and the Alteration Cost Beginning CPI
and the denominator of which shall be the Alteration Cost Beginning CPI, and
(b) add the product of such multiplication to the then applicable Alteration
Amount.
"ALTERATION COST BEGINNING CPI" shall mean the average CPI for the
three (3) calendar months corresponding to the Prior Months but occurring one
(1) year earlier.
"ALTERATIONS" shall mean all changes, additions, improvements or
repairs to, all alterations, reconstructions, renewals, replacements or
removals of and all substitutions or replacements for any of the Improvements
or Fixtures, both interior and exterior, structural and non-structural, and
ordinary and extraordinary.
"APPLICABLE INITIAL DATE" shall have the meaning assigned to such term
in Paragraph 29(a)(i).
"APPURTENANCES" shall mean all tenements, hereditaments, easements,
rights-of-way, rights, privileges in and to the Land, including (a) easements
over other lands granted by any Easement Agreement and (b) any streets, ways,
alleys, vaults, gores or strips of land adjoining the Land.
"ASSIGNMENT" shall mean any assignment of rents and leases from
Landlord to a Lender, which may be contained within a Mortgage or separate
document, which (a) encumbers the Landlord's interest in this Lease and the
Rent and (b) secures Landlord's obligation to repay a Loan, as the same may be
amended, supplemented or modified from time to time.
"BASIC RENT" shall have the meaning assigned to such term in Paragraph
6.
"BASIC RENT PAYMENT DATES" shall have the meaning assigned to such
term in Paragraph 6.
"BEGINNING CPI" shall have the meaning assigned to such term in
Paragraph 4(a) of Exhibit D hereto.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day on which banks are authorized to be closed in the State.
"CASUALTY" shall mean any injury to or death of any person or any loss
of or damage (i) to any portion of or arising from or on the Leased Premises or
(ii) arising from or on any Adjoining Property.
"CERTIFICATE" shall have the meaning assigned to such term in
Paragraph 25.
"CODE" shall have the meaning assigned to such term in Paragraph 33.
"COMMENCEMENT DATE" shall have the meaning assigned to such term in
Paragraph 5(a).
"CONDEMNATION" shall mean any taking or damaging of all or a portion
of any of the Leased Premises (i) in or by condemnation or other eminent domain
proceedings pursuant to any Law or (ii) by reason of any agreement with any
condemnor in settlement of or under threat of any such condemnation or other
eminent domain proceeding. The Condemnation shall be considered to have taken
place as of the later of the date actual physical possession is taken by the
condemnor, or the date on which the right to compensation and damages accrues
under the Law applicable to the Leased Premises.
"CONDEMNATION NOTICE" shall mean written notice of the institution of
or intention to institute any proceeding for Condemnation.
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"CONTRACT" shall have the meaning assigned to such term in Paragraph
34(b).
"COSTS" of a Person or associated with a specified transaction shall
mean all reasonable and customary costs and expenses incurred by such Person or
associated with such transaction, including, without limitation, reasonable
attorneys' fees and expenses, court costs, brokerage fees, escrow fees, title
insurance premiums, recording fees and transfer taxes, as the circumstances
require.
"CPI" shall have the meaning assigned to such term in Paragraph 2 of
Exhibit D hereto.
"DEFAULT RATE" shall have the meaning assigned to such term in
Paragraph 7(a)(ii).
"DEFAULT TERMINATION AMOUNT" shall have the meaning assigned to such
term in Paragraph 23(a)(iii).
"EASEMENT AGREEMENTS" shall mean any conditions, covenants,
restrictions, reservations, easements, declarations, licenses and other
agreements listed as Permitted Encumbrances or as may hereafter affect the
Leased Premises.
"ENVIRONMENTAL LAW" shall mean any Law relating to pollution of the
environment, including, ambient air, surface water, groundwater, land and
subsurface soils.
"ENVIRONMENTAL VIOLATION" shall mean any violation of or noncompliance
with any Environmental Law occurring prior to the termination of this Lease, or
surrender of possession of the Leased Premises to Landlord, at the Leased
Premises, except in each case, to the extent attributable to acts or omissions
of the Landlord or Landlord's agents or representatives.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Paragraph 22(a).
"EXPIRATION DATE" shall have the meaning assigned to such term in
Paragraph 5(a).
"FAIR MARKET RENTAL VALUE" shall mean the fair market rental value of
the Leased Premises for the second Renewal Term determined in accordance with
the procedure specified in Paragraph 29.
"FAIR MARKET VALUE" shall mean the fair market value of the Leased
Premises as affected and encumbered by this Lease and assuming that the Term
has been extended for any Renewal Terms for which Tenant has delivered a
Renewal Notice. For all purposes of
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this Lease, Fair Market Value shall be determined in accordance with the
procedure specified in Paragraph 29.
"FAIR MARKET VALUE DATE" shall mean the date when the Fair Market
Value is determined in accordance with Paragraph 29.
"FEDERAL FUNDS" shall mean federal or other immediately available
funds which at the time of payment are legal tender for the payment of public
and private debts in the United States of America.
"FIRST ADJUSTMENT DATE" shall have the meaning assigned to such term
in Paragraph 3 of Exhibit D hereto.
"FIXTURES" shall have the meaning assigned to such term in Paragraph
1.
"GAAP" shall have the meaning assigned to such term in Paragraph 28.
"HAZARDOUS CONDITION" means any condition which would support any
claim or liability under any applicable Environmental Law.
"HAZARDOUS SUBSTANCE" means pollutants, contaminants, wastes,
chemicals, substances including, without limitation, petroleum and
constituents, in each case, as regulated pursuant to applicable Environmental
Laws.
"IMPOSITIONS" shall have the meaning assigned to such term in
Paragraph 9.
"IMPROVEMENTS" shall have the meaning assigned to such term in
Paragraph 1.
"INDEMNITEE" shall have the meaning assigned to such term in Paragraph
15(a).
"LAND" shall have the meaning assigned to such term in Paragraph 1.
"LANDLORD" shall have the meaning assigned to such term in the
Preamble.
"LANDLORD'S ACCELERATION NOTICE" shall have the meaning assigned to
such term in Paragraph 23(a)(iv).
"LAW" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation, policy,
requirement or administrative or judicial determination of every duly
constituted governmental authority, court or agency, now or hereafter enacted
or in effect.
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"LEASE" shall mean this Lease Agreement, as the same may be amended,
supplemented or modified in accordance with the provisions hereof.
"LEASE YEAR" shall mean, with respect to the first Lease Year, the
period commencing on the Commencement Date and ending at midnight on the last
day of the twelfth (12th) consecutive calendar month following the month in
which the Commencement Date occurred, and each succeeding twelve (12) month
period during the Term.
"LEASED PREMISES" shall have the meaning assigned to such term in
Paragraph 1.
"LEGAL REQUIREMENTS" shall mean the requirements of all present and
future Laws and all covenants, restrictions and conditions now or hereafter of
record which may be applicable to Tenant or to the Leased Premises.
"LENDER" shall mean any person or entity (and their respective
successors and assigns) which may, on or after the date hereof, make a Loan to
Landlord or is the holder of any Note, including, but not limited to, LaSalle
Bank National Association with respect to the Loan which is the subject matter
of the documents identified in Exhibit E hereto (the "LaSalle Bank Loan").
"LOAN" shall mean any loan made by one or more Lenders to Landlord,
which loan is secured by a Mortgage and evidenced by a Note, including, but not
limited to, the LaSalle Bank Loan.
"LOAN DOCUMENTS" shall mean all documents evidencing, securing or
executed in connection with a Loan, as the same may be amended, supplemented or
modified.
"MONETARY OBLIGATIONS" shall mean Rent and all other sums payable by
Tenant under this Lease to Landlord, to any third party on behalf of Landlord
or to any Indemnitee.
"MORTGAGE" shall mean any mortgage or deed of trust from Landlord to a
Lender which (a) encumbers the Landlord's interest in the Leased Premises and
(b) secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified.
"NET AWARD" shall mean (a) the entire award payable to Landlord by
reason of a Condemnation whether pursuant to a judgment or by agreement or
otherwise, or (b) the entire proceeds of any insurance required under clauses
(i), (ii) (to the extent payable to Landlord), (iv) or (v) of Paragraph 16(a),
as the case may be, less any reasonable expenses incurred by Landlord, Tenant
or any Lender in collecting such award or proceeds.
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"NON-PREAPPROVED ASSIGNEE" shall have the meaning assigned to such
term in Paragraph 21(a)(iii).
"NON-PREAPPROVED ASSIGNMENT" shall have the meaning assigned to such
term in Paragraph 21(a)(iii).
"NOTE" shall mean any promissory note evidencing Landlord's obligation
to repay a Loan, as the same may be amended, supplemented or modified.
"NOTICE OF SALE" shall have the meaning assigned to such term in
Paragraph 34(b).
"PARTIAL CASUALTY" shall mean any Casualty which does not constitute a
Termination Event.
"PARTIAL CONDEMNATION" shall mean any Condemnation which does not
constitute a Termination Event.
"PERMITTED ENCUMBRANCES" shall mean those Easement Agreements, liens
and other encumbrances listed on Exhibit C hereto.
"PERMITTED VIOLATIONS" shall have the meaning assigned to such term in
Paragraph 14.
"PERSON" shall mean an individual, trustee, trust, partnership,
association, corporation or other entity.
"PREAPPROVED ASSIGNEE" shall have the meaning assigned to such term in
Paragraph 21(a)(ii).
"PREAPPROVED ASSIGNMENT" shall have the meaning assigned to such term
in Paragraph 21(a)(ii).
"PREAPPROVED SUBLET" shall have the meaning assigned to such term in
Paragraph 21(b)(i).
"PREPAYMENT PREMIUM" shall mean any payment required under a Note or
any other document evidencing or securing a Loan (other than a payment of
principal and/or interest which Landlord is required to make under a Note or a
Mortgage) by reason of any prepayment by Landlord of any principal due under a
Note or Mortgage, and which may, but shall not be required to, be (in lieu of
such prepayment premium or prepayment penalty) (i) a "make whole" or yield
maintenance clause requiring a prepayment premium or (ii) a defeasance payment.
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"PRESENT VALUE" of any amount shall mean such amount discounted by a
rate per annum which is 7%.
"PRIME RATE" shall mean the annual interest rate as published, from
time to time, in The Wall Street Journal as the "Prime Rate" in its column
entitled "Money Rate". In the event The Wall Street Journal ceases publication
or ceases to publish the "Prime Rate" as described above, the Prime Rate shall
be the average per annum discount rate (the "DISCOUNT RATE") on ninety-one
(91-) day bills ("TREASURY BILLS") issued from time to time by the United
States Treasury at its most recent auction, plus three hundred (300) basis
points. If no such 91-day Treasury Bills are then being issued, the Discount
Rate shall be the discount rate on Treasury Bills then being issued for the
period of time closest to ninety-one (91) days.
"PRIOR MONTHS" shall have the meaning assigned to such term in
Paragraph 4(a) of Exhibit D hereto.
"REJECTION" shall have the meaning assigned to such term in Paragraph
18(c).
"RELEVANT AMOUNT" shall mean the Termination Amount or the Default
Termination Amount, as the case may be.
"RELEVANT DATE" shall mean (a) the date when Fair Market Value is
redetermined, in the event of a redetermination of Fair Market Value pursuant
to Paragraph 20(c), or (b) the date immediately prior to the Event of Default
giving rise to the need to determine Fair Market Value in the event Landlord
provides Tenant with notice of its intention to require Tenant to make a
termination offer under Paragraph 23(a)(iii).
"REMAINING OBLIGATIONS" shall have the meaning assigned to such term
in Paragraph 18(c).
"RENEWAL DATE" shall have the meaning assigned to such term in
Paragraph 5(b).
"RENEWAL TERM" shall have the meaning assigned to such term in
Paragraph 5(b).
"RENT" shall mean, collectively, Basic Rent and Additional Rent.
"REQUESTING PARTY" shall have the meaning assigned to such term in
Paragraph 25.
"RESPONDING PARTY" shall have the meaning assigned to such term in
Paragraph 25.
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"RESTORATION FUND" shall have the meaning assigned to such term in
Paragraph 19(a).
"REVIEW CRITERIA" shall have the meaning assigned to such term in
Paragraph 21(a)(iii).
"RIGHT OF FIRST REFUSAL" shall have the meaning assigned to such term
in Paragraph 34.
"SET-OFF" shall have the meaning assigned to such term in Paragraph
8(a).
"SITE ASSESSMENT" shall have the meaning assigned to such term in
Paragraph 10(c).
"SITE REVIEWERS" shall have the meaning assigned to such term in
Paragraph 10(c).
"STATE" shall mean the state of Michigan.
"SURVIVING OBLIGATIONS" shall mean any obligations of Tenant under
this Lease, actual or contingent, which arise on or prior to the expiration or
prior termination of this Lease and which have not been performed or satisfied
or which survive such expiration or termination pursuant to the provisions
hereof.
"TENANT" shall have the meaning assigned to such term in the Preamble.
"TERM" shall have the meaning assigned to such term in Paragraph 5(a).
"TERMINATION AMOUNT" shall mean with respect to the Leased Premises
the sum of (a) the applicable Prepayment Premium which the Landlord will be
required to pay in prepaying any Loan with proceeds of the Termination Amount
and all other amounts, including unpaid principal and unpaid accrued interest,
required to be paid to each Lender in order to obtain a discharge of such
Lender's Mortgage and (b) the Present Value of the amount by which (i) the
total Basic Rent that would have been payable under this Lease for what would
have been the remainder of the Term, calculated as of the Termination Date, if
this Lease had not terminated as of the Termination Date, exceeds (ii) the
product of (A) the amount of that monthly installment of principal and interest
payable under a Note outstanding as of the Termination Date which is the last
installment to become due prior to the Termination Date and (B) the number of
months that would have remained in the Term as of the Termination Date if this
Lease had not terminated as of the Termination Date, but in no event shall the
Termination Amount be less than the Fair Market Value.
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"TERMINATION DATE" shall have the meaning assigned to such term in
Paragraph 18(b).
"TERMINATION EVENT" shall have the meaning assigned to such term in
Paragraph 18(a).
"TERMINATION NOTICE" shall have the meaning assigned to such term in
Paragraph 18(a).
"THIRD PARTY PURCHASER" shall have the meaning assigned to such term
in Paragraph 21(h).
"WARRANTIES" shall have the meaning assigned to such term in Paragraph
3(d).
"WORK" shall have the meaning assigned to such term in Paragraph
13(b).
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the
rights of any Persons in possession of the Leased Premises, (ii) the existing
state of title of any of the Leased Premises, including any Permitted
Encumbrances, (iii) any state of facts which an accurate survey or physical
inspection of the Leased Premises might show, (iv) all Legal Requirements,
including any existing violation of any thereof, and (v) the condition of the
Leased Premises as of the commencement of the Term.
(b) Tenant accepts the title and condition of the Leased Premises in
its present condition "as is", with all faults and defects, latent or patent.
(c) Tenant acknowledges that (i) fee simple title (both legal and
equitable) is in Landlord and that Tenant has only the leasehold right of
possession and use of the Leased Premises as provided herein, (ii) all material
easements necessary for the use or operation of the Leased Premises have been
obtained, and (iii) all Fixtures necessary for the use or operation of the
Leased Premises have been installed and are presently in good condition and
repair, normal wear and tear excepted.
(d) Landlord hereby assigns to Tenant all assignable warranties,
guaranties, indemnities and similar rights (collectively, "WARRANTIES") which
Landlord may have against any manufacturer, supplier, engineer, contractor or
builder in respect of any of the Leased Premises; provided, however, that all
such warranties shall, automatically and without the requirement of any further
action, be reassigned back to Landlord upon the expiration or earlier
termination of this Lease except for a termination resulting from a conveyance
of the Leased Premises to Tenant. Tenant shall use commercially reasonable
efforts to enforce the Warranties in accordance with their respective terms.
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4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for general
office, research, development, prototype testing and other incidental and
related uses in connection with Tenant's business as now conducted and for no
other purposes without the prior written consent of the Landlord.
(b) Subject to the provisions hereof, Tenant shall quietly hold,
occupy and enjoy the Leased Premises throughout the Term, without any
hindrance, ejection or molestation by Landlord with respect to matters that
arise after the date hereof; provided, however, that (i) Landlord may enter
upon the Leased Premises at such reasonable times and during normal business
hours as Landlord may reasonably select upon reasonable notice to Tenant for
the purpose of inspecting the Leased Premises, showing the Leased Premises to
prospective tenants, purchasers, lenders or investors, verifying compliance or
non-compliance by Tenant with its obligation hereunder and taking such other
action within the Leased Premises as is permitted pursuant to the provisions
hereof and (ii) any Lender may enter upon the Leased Premises for any purposes
permitted under its Mortgage or other Loan Documents.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and hold the
Leased Premises for an initial term (such term, as extended or renewed in
accordance with the provisions hereof, being called the "TERM") commencing June
29, 2001 (the "COMMENCEMENT DATE") and ending on June 30, 2021 (the "EXPIRATION
DATE").
(b) If, on or prior to the Expiration Date or any other Renewal Date
this Lease shall not have been terminated pursuant to any provision hereof,
then on the Expiration Date and on the tenth (10th) anniversary of the
Expiration Date (the Expiration Date and such anniversary each being
hereinafter referred to as a "RENEWAL DATE"), the Term shall be deemed to have
been automatically extended for an additional period of ten (10) years (each
such extension, a "RENEWAL TERM"), unless Tenant shall notify Landlord in
writing at least one (1) year prior to the next Renewal Date that Tenant is not
extending this Lease as of the next Renewal Date. Any such extension of the
Term shall be subject to all of the provisions of this Lease.
(c) If Tenant exercises its option not to extend or further extend
the Term, then Landlord shall have the right during the remainder of the Term
then in effect and, in any event, Landlord shall have the right during the last
year of the Term, to erect upon the Leased Premises one (1) sign advertising
the Premises for lease and/or sale, the size and location of which shall be
subject to Tenant's approval, which approval shall not be unreasonably
withheld, conditioned or delayed.
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6. Basic Rent. Commencing on June 29, 2001, Tenant shall pay to
Landlord, as annual rent for the Leased Premises during the balance of the Term
in equal monthly installments, the amounts determined in accordance with
Exhibit D hereto (the "BASIC RENT"), such installments to continue and be
payable on the twenty-fifth (25th) day of each month thereafter during the Term
(each such day being hereinafter referred to as a "BASIC RENT PAYMENT DATE").
Each such rental payment shall be made to Landlord at such address as Landlord
may direct by fifteen (15) days' prior written notice to Tenant. In the event a
Basic Rent Payment Date shall not be a Business Day, the payment of Basic Rent
due on such Basic Rent Payment Date shall be made on the Business Day
immediately following such Basic Rent Payment Date. Pro rata Basic Rent for the
Leased Premises for the period from the date hereof through the thirtieth
(30th) day of June, 2001 shall be paid on the date hereof and pro rata Basic
Rent for the period from the thirtieth (30th) day of the last month of the Term
through the last day of the last month of the Term shall be paid with the final
monthly installment of Basic Rent.
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "ADDITIONAL RENT"):
(i) except as otherwise specifically provided herein, all costs and
expenses of Tenant and all reasonable costs and expenses of Landlord which
are incurred in connection or associated with (A) the ownership, use,
management, occupancy, possession, operation, condition, design,
construction, maintenance, alteration, repair, replacement or restoration
of any of the Leased Premises; provided, however, in no event shall Tenant
be responsible to pay installments of principal and interest payable under
the Note, (B) the performance of any of Tenant's obligations under this
Lease, (C) any Condemnation proceedings (provided, however, that Tenant is
reimbursed for all of its costs and expenses out of the Condemnation
proceeds), (D) the adjustment, settlement or compromise of any insurance
claims involving or arising from any of the Leased Premises (provided,
however, that Tenant is reimbursed for all of its costs and expenses out
of the insurance proceeds), (E) obtaining, at the request of Tenant, the
approval or consent of a Lender, and (F) any other items specifically
required to be paid by Tenant under this Lease;
(ii) interest at the rate (the "DEFAULT RATE") equal to the greater
of (A) two percent (2%) over the Prime Rate per annum, or (B) the default
rate of interest provided for in any unpaid Note then in existence, on the
following sums until paid in full: (1) all overdue installments of Basic
Rent from the respective due dates thereof as to any such installment that
has not been made within five (5) days of its due date, (2) all overdue
amounts of Additional Rent relating to obligations which Landlord shall
have paid or performed on behalf of Tenant, from the date of payment
thereof by
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Landlord, and (3) all other overdue amounts of Additional Rent, from the
date when any such amount becomes overdue; and
(iii) a late charge equal to five percent (5%) of any overdue
installment of Basic Rent which has not been paid within five (5) days of
its due date.
(b) Tenant shall pay and discharge (i) any Additional Rent referred
to in Paragraph 7(a)(i) when the same shall become due and payable; provided,
however, that amounts which are billed to Landlord or any third party, but not
to Tenant, shall be paid within fifteen (15) days after Landlord's demand for
payment thereof, and (ii) any other Additional Rent, within fifteen (15) days
after Landlord's demand for payment thereof.
(c) In no event shall amounts payable under Paragraph 7(a)(ii) or
(iii) exceed the maximum amount permitted by applicable Law.
8. Net Lease; Non-Terminability.
(a) This is a net lease and all Monetary Obligations set forth
herein shall, except as specifically set forth herein, be paid without notice
or demand, recoupment, set-off, counterclaim, abatement, suspension, deferment,
diminution, deduction, reduction or defense (collectively, a "SET-OFF").
(b) This Lease and the rights of Landlord and the obligations of
Tenant hereunder shall not be affected by any event or for any reason or cause
whatsoever foreseen or unforeseen, except as specifically set forth herein.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements, all Monetary Obligations shall continue
to be payable in all events (or, in lieu thereof, Tenant shall pay amounts
equal thereto), and the obligations of Tenant hereunder shall continue
unaffected unless the requirement to pay or perform the same shall have been
terminated pursuant to an express provision of this Lease. All Rent payable by
Tenant hereunder shall constitute "rent" for all purposes (including Section
502(b)(6) of the Federal Bankruptcy Code).
(d) Tenant shall perform and observe all of the covenants and
obligations of Landlord under any Mortgage or any other Loan Documents
pertaining or relating in any manner whatsoever to the Leased Premises,
including but not limited to any obligations to pay amounts into tax,
insurance, replacement, repair, and tenant improvement and leasing escrows or
reserves, except for those covenants and obligations which are solely within
the control of Landlord to perform or observe (e.g., the obligations not to
transfer Landlord's interest in the Leased Premises without a Lender's consent)
and in no event shall Tenant be responsible to pay installments of principal
and/or interest payable under a Note. In the event of any conflict between this
Lease and any Loan Documents regarding the scope of any covenant or obligation
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to be performed or observed by Tenant, the document imposing the greater
covenant or obligation on Tenant shall control. Tenant shall not, through any
act or omission of Tenant or any of its subtenants or licensees or any of the
agents, contractors, employees, or invitees of Tenant or any of its subtenants
or licensees, cause a default, breach or event of default under any Mortgage or
any other Loan Documents, regardless of whether such act or omission would
otherwise be permitted under this Lease without regard to the terms and
provisions of any such Loan Documents. Tenant acknowledges that it has reviewed
the Loan Documents identified in Exhibit E hereto and executed in connection
with the LaSalle Bank Loan. Notwithstanding anything to the contrary contained
in this Lease, any Additional Rent which would otherwise be payable directly by
Tenant to a Lender, including payments into tax, insurance, replacement,
repair, and/or tenant improvement and leasing escrows or reserves, shall, at
the option of Landlord, be paid by Tenant to Landlord on the 25th day of the
month immediately preceding the month in which such payment becomes due to the
Lender. Landlord hereby elects to have Tenant pay the Replacement Reserve
Monthly Payment (as defined in the Mortgage executed in connection with the
LaSalle Bank Loan) directly to Landlord as provided in the immediately
preceding sentence.
(e) The Mortgage executed in connection with the LaSalle Bank Loan
provides that in lieu of making the TI and Leasing Reserve Monthly Payments (as
defined in such Mortgage), Landlord provided a letter of credit in the amount
of $44,182.50 and must renew and increase such letter of credit and/or provide
a revised letter of credit in an increased amount as provided in such Mortgage
until such time as the letter of credit is no longer required as set forth in
the Mortgage. The parties agree that notwithstanding the provisions of
subparagraph (d) above which would otherwise require Tenant to furnish such
letter of credit and renewals thereof and/or revised letter of credit, Landlord
shall furnish such letter of credit and renewals thereof and/or revised letter
of credit but Tenant shall pay as Additional Rent all costs incurred by
Landlord in obtaining such letter of credit and renewals thereof.
Except as expressly provided in this Lease, Landlord shall have no
obligation to maintain, repair, replace, restore, alter or improve the Property
or any other obligations of any nature whatsoever pertaining to the Property.
9. Payment of Impositions. Tenant shall, before interest or
penalties are due thereon, and by such earlier dates as may be provided below,
pay and discharge all taxes (including real and personal property, franchise,
sales, use, gross receipts and rent taxes), all charges for any easement or
agreement maintained for the benefit of any of the Leased Premises, all
assessments and levies, all permit, inspection and license fees, all rents and
charges for water, sewer, utility and communication services relating to any of
the Leased Premises, all ground rents and all other public charges imposed upon
or assessed against (i) Tenant, (ii) Tenant's leasehold interest in the Leased
Premises, (iii) any of the Leased Premises, or (iv) Landlord as a result of or
arising in respect of the ownership, occupancy, leasing, use or possession of
any of the Leased Premises, any activity conducted on any of the Leased
Premises,
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or the Rent (collectively, the "IMPOSITIONS"); provided, however, that nothing
herein shall obligate Tenant to pay (A) income, excess profits or other taxes
of Landlord which are determined on the basis of Landlord's net income or net
worth, (B) any estate, inheritance, succession, gift or similar tax imposed on
Landlord, (C) any capital gains tax imposed on Landlord in connection with the
sale of the Leased Premises to any Person or (D) any Lender by reason of any
note, mortgage, assignment or other document evidencing or securing a Loan. If
any Imposition may be paid in installments without interest or penalty, Tenant
shall have the option to pay such Imposition in installments; in such event,
Tenant shall be liable only for those installments which accrue or become due
and payable during the Term. Tenant shall prepare and file all tax reports
required by governmental authorities which relate to the Impositions.
Notwithstanding anything to the contrary contained herein, Tenant shall, no
later than thirty (30) days prior to the date any real estate taxes levied
against the Leased Premises would become delinquent, (1) pay such taxes or
special assessments and (2) provide Landlord and each Lender with written
evidence of payment of such taxes or special assessments.
10. Compliance with Laws and Easement Agreements; Environmental
Matters.
(a) Subject to the provisions of Paragraph 14, Tenant shall comply
with and conform to, and cause the Leased Premises and any other Person
occupying any part of the Leased Premises to comply with and conform to all
Legal Requirements. Tenant shall not at any time (i) cause, permit or suffer to
occur any Environmental Violation or (ii) permit any sublessee, assignee or
other Person occupying the Leased Premises under or through Tenant to cause,
permit or suffer to occur any Environmental Violation.
(b) Tenant will promptly abide by, discharge and perform in all
material respects all of the covenants, conditions and agreements contained in
any Easement Agreement on the part of Landlord.
(c) Upon reasonable prior written notice from Landlord, Tenant shall
permit such persons as Landlord may designate (the "SITE REVIEWERS") with the
consent of Tenant to visit the Leased Premises during normal business hours and
in a manner which does not unreasonably interfere with Tenant's operation and
perform, as agents of Landlord, environmental site investigations and
assessments (the "SITE ASSESSMENTS") on the Leased Premises (i) in connection
with any sale, financing or refinancing of the Leased Premises, (ii) within the
six month period prior to the expiration of the Term, (iii) if required by
Lender or the terms of any credit facility to which Landlord is bound, or (iv)
if an Environmental Violation has occurred or Landlord reasonably believes that
an Environmental Violation may have occurred. Such Site Assessments may include
both above and below the ground testing for Environmental Violations and such
other tests as may be necessary, in the reasonable opinion of the Site
Reviewers in each case, provided that the Site Assessment shall be conducted in
a manner that does not interfere with the Tenant's conduct of its business or
use of the Premises. Tenant
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shall supply to the Site Reviewers such non-privileged historical and
operational information regarding the Leased Premises as may be reasonably
requested by the Site Reviewers to facilitate the Site Assessments, and shall
make available upon reasonable notice for meetings with the Site Reviewers
appropriate personnel having knowledge of such matters. The cost of performing
and reporting Site Assessments to Landlord shall be paid by Landlord.
(d) If an Environmental Violation exists and, in Landlord's
reasonable judgment, the cost of remediation of, or other response action
required under applicable Environmental Law to cure such Environmental
Violation is likely to exceed $1,000,000, Tenant shall provide to Landlord,
within thirty (30) days after Landlord's request therefor, financial assurances
reasonably satisfactory to Landlord in form and substance that Tenant will
effect such remediation in accordance with applicable Environmental Laws and in
an amount equal to Landlord's reasonable estimate, based upon a Site Assessment
performed pursuant to Paragraph 10(c), of the anticipated cost of such remedial
action.
(e) If Tenant fails to correct any existing Environmental Violation
following reasonable notice and an opportunity to do so, Landlord shall have
the right to take any actions required under applicable Environmental Law as
shall be necessary in order to cure such Environmental Violation.
(f) Tenant shall promptly notify Landlord after becoming aware of
any Environmental Violation and shall forward to Landlord promptly upon receipt
thereof copies of all orders, reports, notices, permits, applications or other
communications received by Tenant and relating to any such violation.
11. Liens; Recording.
(a) Tenant shall not create or permit to be created or to remain and
shall promptly discharge or remove any lien, levy or encumbrance on any of the
Leased Premises or on any Rent or any other sums payable by Tenant under this
Lease, other than (i) the Permitted Encumbrances, (ii) any mortgage, lien,
encumbrance or other charge created by or resulting solely from any act or
omission of Landlord and (iii) any lien, encumbrance or other charge being
contested by Tenant pursuant to and in accordance with Paragraph 14 hereof.
(b) Tenant (with Landlord's cooperation) shall execute, deliver and
record, file or register (collectively, "RECORD") all such instruments as may
be required by any present or future Law in order to evidence the respective
interests of Landlord and Tenant in the Leased Premises, and shall cause a
memorandum of this Lease (or any local equivalent) and any supplement hereto or
thereto, to be recorded in such manner and in such places as may be required or
permitted by any present or future Law in order to protect the validity and
priority of this Lease.
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12. Maintenance and Repair. Tenant shall at all times maintain the
Leased Premises in good order and repair (except for ordinary wear and tear),
including all necessary replacements, and shall in no event cause, permit or
suffer any waste of all or any portion of the Leased Premises. Tenant shall
take every other commercially reasonable action for the preservation and safety
of the Leased Premises. Tenant shall promptly make all Alterations reasonably
necessary to comply with the foregoing requirements of this Paragraph 12. Any
Alteration made by Tenant pursuant to this Paragraph 12 shall be made in
conformity with the provisions of Paragraph 13.
13. Alterations and Improvements; Expansion Options.
(a) Tenant shall have the right, without having obtained the prior
written consent of Landlord, (i) to make Alterations or a series of related
Alterations to the Leased Premises that, as to any such Alterations or series
of related Alterations, do not have an estimated cost in the reasonable opinion
of Tenant in excess of $1,000,000 (in each case, as increased by the Alteration
Amount) and (ii) to install Fixtures in the Improvements which are part of the
Leased Premises or accessions to the Fixtures that, as to such Fixtures or
accessions, do not have an estimated cost in the reasonable opinion of Tenant
in excess of $1,000,000 (in each case, as increased by the Alteration Amount);
provided, however, that Tenant shall, prior to performing any of the foregoing,
obtain the consent of each Lender to the extent such consent is required under
such Lender's Loan Documents. If the cost of any Alterations, series of related
Alterations, Fixtures or accessions thereto is in excess of $1,000,000 (in each
case, as increased by the Alteration Amount), the prior written approval of (A)
Landlord shall be required, which approval shall not be unreasonably withheld,
conditioned or delayed, and (B) each Lender to the extent such approval is
required under such Lender's Loan Documents.
(b) If Tenant makes any Alterations pursuant to this Paragraph 13 or
as required by Paragraph 12 or Paragraph 17 (such Alterations and actions being
hereinafter collectively referred to as "WORK"), whether or not Landlord's
and/or Lender's consent is required, then (i) the market value of the Leased
Premises shall not be lessened by any such Work or its usefulness impaired,
(ii) all such Work shall be performed by Tenant in a good and workmanlike
manner, (iii) all such Work shall be promptly completed within a reasonable
time period and in material compliance with all applicable Legal Requirements,
(iv) subject to Paragraph 14, Tenant shall promptly discharge or remove all
liens filed against any of the Leased Premises arising out of such Work, other
than Permitted Encumbrances, (v) Tenant shall procure and pay for all permits
and licenses necessary pursuant to all applicable Legal Requirements in
connection with any such Work and (vi) Tenant shall comply, to the extent
reasonably requested by Landlord or required by this Lease, with the provisions
of Paragraphs 12 and 19(a), whether or not such Work involves restoration of
the Leased Premises.
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(c) Notwithstanding, the foregoing, Tenant shall have the right, but
not the obligation, to expand the Improvements so long as (i) Tenant shall
notify Landlord of its intention to expand the Improvements and submit to
Landlord for its approval plans and specifications with respect thereto (such
approval not to be unreasonably withheld, conditioned or delayed) and otherwise
disclose to Landlord all anticipated costs and expenses in connection with such
expansion, (ii) the proposed expansion is consistent with the existing
architecture of the Leased Premises, (iii) the proposed expansion does not
detract from the existing facilities future marketability and (iv) each Lender
approves such expansion to the extent such approval is required under such
Lender's Loan Documents. In the event Landlord and Tenant cannot agree as to
clauses (ii) and (iii) above, an independent consultant shall be appointed by
the office of the American Arbitration Association in Detroit, Michigan to
settle such differences. The determination of such independent consultant shall
be binding and conclusive on Landlord and Tenant.
(d) With respect to any proposed expansion undertaken by Tenant in
accordance with Paragraph 13(c), Landlord and Tenant shall negotiate in good
faith on an "open book" basis (i.e., full disclosure between the parties of all
pricing, costs and fees relating to the construction and the financing of the
expansion) to effect the financing of such expansion by Landlord at the then
prevailing market capitalization rate based on Tenant's credit rating at the
time of such expansion. In the event the parties shall agree to the terms of
such financing, the annual Basic Rent shall be increased by the product of (i)
12 and (ii) the amount of monthly payment necessary to fully amortize the
amount of expansion costs financed, together with interest thereon at the rate
of 10.75% per annum, over the remainder of the Term.
14. Permitted Contests. Notwithstanding any other provision of this
Lease, Tenant shall not, except to the extent required of Landlord under any
Loan Documents, be required to discharge or remove any lien referred to in
Paragraph 11 or 13 other than Impositions (such non-compliance with the terms
hereof being hereinafter referred to, collectively, as "PERMITTED VIOLATIONS"),
so long as (a) Tenant provides Landlord or Lender with security reasonably
satisfactory to Landlord or such Lender, (b) Tenant complies with such other
requirements and conditions to contesting Permitted Violations as may be set
forth in any Loan Documents, and (c) at the time of such contest Tenant shall
contest, in good faith, the existence, amount or validity thereof, the amount
of the damages caused thereby, or the extent of its liability therefor by
appropriate proceedings which shall operate during the pendency thereof to
prevent or stay (i) the collection of, or other realization upon, the Permitted
Violation so contested, (ii) the sale, forfeiture or loss of any of the Leased
Premises or any Rent to satisfy or to pay any damages caused by any Permitted
Violation, (iii) any material interference with the use or occupancy of any of
the Leased Premises and (iv) any interference with the payment of any Rent.
While any proceedings which comply with the requirements of this Paragraph 14
are pending, Landlord shall not have the right to correct any Permitted
Violation thereby being contested unless Landlord is required by law to correct
such Permitted Violation and Tenant's contest does not prevent or stay such
requirement as to Landlord. Each such
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contest shall be promptly prosecuted by Tenant to a final conclusion, except
that Tenant, so long as the conditions of this Paragraph 14 are at all times
complied with, has the right to attempt to settle or compromise such contest
through negotiations. Tenant shall pay any and all losses, judgments, decrees
and Costs in connection with any such contest and shall, promptly after the
final determination of such contest, fully pay and discharge the amounts which
shall be levied, assessed, charged or imposed or be determined to be payable
therein or in connection therewith, together with all penalties, fines,
interest and Costs thereof or in connection therewith, and perform all acts the
performance of which shall be ordered or decreed as a result thereof.
15. Indemnification.
(a) Tenant shall pay, protect, indemnify, defend, save and hold
harmless Landlord and all other Persons described in Paragraph 30, and all
other Persons who may now or hereafter have any liability to a Lender in
connection with a Loan, whether pursuant to a guaranty, an environmental
indemnification agreement or otherwise (each, an "INDEMNITEE"), including, but
not limited to, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, from and against any and all liabilities,
losses, fines, penalties, damages, penalties, Costs (including reasonable
attorneys' fees and costs), causes of action, suits, claims, demands or
judgments of any nature whatsoever (including, but not limited to, (A)
liability for response costs and for costs of removal and remedial action
incurred by the United States Government, any state or local governmental unit
or any other Person, or damages from injury to or destruction or loss of
natural resources, (B) liability for costs and expenses of abatement,
correction or clean-up, fines, damages, response costs or penalties which arise
from the provisions of any Environmental Laws, (C) liability for personal
injury or property damage arising under any Environmental Law, and (D) all
liabilities, damages, losses, Costs, causes of action, suits, claims, demands
or judgments arising out of the exercise or enforcement of any right or remedy
available to any Lender under any Loan Documents or at law or in equity except,
in each case, to the extent caused by or arising out of the negligence or
willful misconduct of, or the breach of the provisions of the Lease by any
Indemnitee seeking such indemnification, arising from (i) any matter pertaining
to the acquisition (or the negotiations leading thereto), ownership, use,
management, occupancy, operation, condition, design, construction, maintenance,
repair, replacement or restoration of the Leased Premises or any Adjoining
Property, (ii) any casualty in any manner arising on or from the Leased
Premises or any Adjoining Property, (iii) any violation by Tenant of any
provision of this Lease, any contract or agreement to which Tenant is a party,
any Legal Requirement or any Permitted Encumbrance or any encumbrance to which
Tenant consented, (iv) any Environmental Violation, (v) the negligence or
willful misconduct of Tenant or any of its subtenants or licensees or
contractors, invitees, agents or employees of Tenant or any of its subtenants
or licensees, (vi) any breach of any representations or warranties pertaining
to the Leased Premises which are set forth in any Loan Documents except to the
extent that the Indemnitee making such representation or warranty had actual
knowledge of such breach at the time such Indemnitee made such representation
or warranty, or (vii) the exercise
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or enforcement of any right or remedy available to any Lender under any Loan
Documents or at law or in equity, including, but not limited to, acceleration
of the indebtedness secured by a Mortgage and foreclosure of such Mortgage,
with respect to the failure to pay any monthly installment or principal and/or
interest which became due under any Loan Document if Tenant failed to pay when
due the last monthly installment of Basic Rent which became due prior to the
due date of such monthly installment of principal and/or interest. Tenant
acknowledges and agrees that monthly installments of Basic Rent will be
utilized by Landlord to pay the monthly installments of principal and/or
interest which become due under a Note. For purposes of this subparagraph (a),
"Costs" shall include the reasonable Costs incurred by an Indemnitee in
enforcing the obligations of Tenant under this subparagraph (a).
(b) In case any action or proceeding is brought against any
Indemnitee by reason of any claim described in subparagraph (a) above, (i)
Tenant may retain its own counsel and defend such action (it being understood
that Landlord may employ counsel of its choice to monitor the defense of any
such action, the cost of which shall be paid by Landlord) and (ii) such
Indemnitee shall notify Tenant to resist or defend such action or proceeding by
retaining counsel reasonably satisfactory to such Indemnitee, and such
Indemnitee will, at Tenant's sole cost, cooperate and assist in the defense of
such action or proceeding if reasonably requested so to do by Tenant. No
compromise or settlement or any such claim may be made without the prior
written consent of such Indemnitee.
(c) The obligations of the parties under this Paragraph 15 shall
survive the expiration or earlier termination of this Lease.
16. Insurance.
(a) Tenant shall maintain the following insurance on or in
connection with the Leased Premises:
(i) Insurance against physical loss or damage to the Improvements
and Fixtures as provided under a standard "All Risk" property policy in
amounts not less than the actual replacement cost of the Improvements and
Fixtures. Such policies shall contain Replacement Cost and Agreed Amount
endorsements.
(ii) Commercial General Liability Insurance against claims for
personal and bodily injury, death or property damage occurring on, in or
as a result of the use of the Leased Premises, in an amount not less than
[$5,000,000] per occurrence/annual aggregate and all other coverage
extensions that are usual and customary for properties of this size and
type.
(iii) Workers' compensation insurance subject to statutory limits or
better in respect of any work or other operations on or about the Leased
Premises or, in lieu of
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such Workers' Compensation Insurance, a program of self-insurance
complying with the rules, regulations and requirements of the appropriate
agency of the State.
(iv) Comprehensive Boiler and Machinery Insurance on any of the
Fixtures on or in the Leased Premises, in an amount not less than
[$5,000,000] per accident for damage to property.
(v) During any period in which substantial Alterations at the Leased
Premises are being undertaken, broad form Builder's All-Risk insurance in
an amount not less than the estimated cost of such alterations.
(vi) Such other insurance as may be required by any Lender.
(b) The insurance required by Paragraph 16(a) shall be written by
companies which have a Best's rating of A:X or above or a comparable claims
paying ability assigned by Standard & Poor's Corporation or equivalent rating
agency reasonably approved by Landlord and are admitted in, and approved to
write insurance policies by, the State Insurance Department for the states in
which the Leased Premises are located, and are reasonably satisfactory to each
Lender. The insurance referred to in Paragraphs 16(a)(i), 16(a)(iv) and
16(a)(v) shall name Landlord as Owner and Tenant as its interest may appear.
The insurance referred to in Paragraph 16(a)(ii) shall name Landlord as
additional insured. In addition, the insurance referred to in Paragraph
16(a)(i), (ii), (iv) and (v) shall also name each Lender as an additional
insured. If said insurance or any part thereof shall expire, be withdrawn,
become void, unreliable or unsafe for any reason Tenant shall promptly obtain
new or additional insurance reasonably satisfactory to Landlord.
Notwithstanding anything to the contrary contained herein, all such insurance
shall be in form and amounts, and contain endorsements, reasonably satisfactory
to Landlord and each Lender. All such insurance policies shall provide that
such insurance will not be canceled or altered without thirty (30) days' prior
written notice to each Lender and shall provide coverage on an "occurrence"
basis.
(c) Tenant shall pay as they become due and payable all premiums for
the insurance required by Paragraph 16(a), shall renew or replace each policy
and shall promptly deliver to Landlord certificates of insurance relating
thereto. Tenant shall provide Landlord and each Lender with written evidence
that the premium for any insurance required to be maintained by Tenant under
this Lease has been paid no later than thirty (30) days prior to the renewal
date for such insurance.
(d) Anything in this Paragraph 16 to the contrary notwithstanding,
any insurance which Tenant is required to obtain pursuant to Paragraph 16(a)
may be carried under a "blanket" or umbrella policy or policies covering other
properties or liabilities of Tenant, provided that such "blanket" or umbrella
policy or policies otherwise comply with the provisions of this Paragraph 16
and such insurance is reasonably acceptable to each Lender.
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(e) Tenant shall promptly comply with and conform to in all material
respects (i) all provisions of each insurance policy required by this Paragraph
16 and (ii) all requirements of the insurers thereunder applicable to Landlord,
Tenant or any of the Leased Premises or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration or repair of any of the Leased
Premises.
(f) Tenant shall not carry separate insurance concurrent in form or
contributing in the event of a Casualty with that required in this Paragraph 16
unless (i) Landlord is included therein as named insured, with loss payable as
provided herein, and (ii) such separate insurance complies with the other
provisions of this Paragraph 16. Tenant shall promptly notify Landlord of such
separate insurance and shall deliver to Landlord the original policies or
certified copies thereof.
(g) All policies shall contain effective waivers by the carrier
against all claims for insurance premiums against Landlord and shall contain
full waivers of subrogation against the Landlord.
(h) All proceeds of any insurance required under Paragraph 16(a)
shall be payable as follows:
(i) Proceeds payable under clauses (ii) and (iii) of Paragraph 16(a)
and proceeds attributable to the general liability coverage of Builder's
All-Risk insurance under clause (v) of Paragraph 16(a) shall be payable to
the Person entitled to receive such proceeds.
(ii) Proceeds of insurance required under clauses (i) and (iv) of
Paragraph 16(a) and proceeds attributable to Builder's All-Risk insurance
(other than its general liability coverage provisions) under clause (v) of
Paragraph 16(a) shall be payable to the Lender having a lien on the Leased
Premises senior in priority, or if none, to Landlord and, subject to the
rights of any Lender under its Loan Documents, applied as set forth in
Paragraph 17 or, if applicable, Paragraph 18. Tenant shall, to the extent
it receives the same, apply the Net Award to restoration of the Leased
Premises in accordance with the applicable provisions of this Lease unless
a Termination Event shall have occurred and Tenant has given a Termination
Notice.
17. Casualty and Condemnation.
(a) If any Casualty to the Leased Premises occurs the insurance
proceeds for which is reasonably estimated by Tenant to be equal to or in
excess of $50,000, Tenant shall give Landlord and each Lender prompt notice
thereof. Subject to the rights of any Lender under its Loan Documents, Tenant
is hereby authorized to adjust, collect and compromise all claims under any of
the insurance policies required by Paragraph 16(a) (except public liability
insurance claims payable to a Person other than Tenant or Landlord) and to
execute
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and deliver on behalf of Landlord all necessary proofs of loss, receipts,
vouchers and releases required by the insurers and Landlord shall have the
right to join with Tenant therein. No agreement or settlement with any insurer
on the amount of any insurance proceeds to be paid shall be made by Tenant
without the written consent of Landlord and, to the extent required by the Loan
Documents, each Lender. Tenant agrees to sign, upon the request of Landlord,
all such proofs of loss, receipts, vouchers and releases. Each insurer is
hereby authorized and directed to make payment under said policies directly to
a Lender or Landlord, whichever is applicable, to the extent contemplated in
Paragraph 16(h).
(b) Tenant, promptly upon receiving a Condemnation Notice, shall
notify Landlord thereof. Subject to the rights of any Lender under its Loan
Documents, Tenant is authorized to, settle and compromise the amount of any Net
Award and Landlord shall have the right to join with Tenant therein. No
agreement with any condemnor in settlement or under threat of any Condemnation
shall be made by Tenant without the written consent of Landlord and, to the
extent required by the Loan Documents, each Lender. Subject to the provisions
of this Paragraph 17(b), Tenant hereby irrevocably assigns to Landlord any
award or payment to which Tenant is or may be entitled by reason of any
Condemnation, whether the same shall be paid or payable for Tenant's leasehold
interest hereunder or otherwise; provided, however, that nothing in this Lease
shall impair Tenant's right to any award or payment on account of Tenant's
trade fixtures, equipment or other tangible property which does not constitute
Fixtures, moving expenses or loss of business, if available, to the extent that
Tenant shall have the right to make, and does make, a separate claim therefor
against the condemnor.
(c) If any Partial Casualty or Partial Condemnation shall occur to
the Leased Premises, this Lease shall continue, notwithstanding such event, and
there shall be no abatement or reduction of any Monetary Obligations, except as
provided in Paragraph 19(b). Promptly after such Partial Casualty or Partial
Condemnation, Tenant, as required in Paragraph 12, shall commence and
diligently continue to restore the Leased Premises as nearly as possible to
their value, condition and character prior to such event. Any Net Award up to
and including $1,000,000 shall, subject to the rights of any Lender under its
Loan Documents and provided no Event of Default exists, be paid by Landlord to
Tenant and Tenant shall restore the Leased Premises in accordance with the
requirements of Paragraph 13(b) of this Lease. Any Net Award in excess of
$1,000,000 or any Net Award of $1,000,000 or less if an Event of Default then
exists shall (unless such Casualty resulting in the Net Award is a Termination
Event), subject to the rights of any Lender under its Loan Documents, be made
available by a Lender to Tenant for the restoration of the Leased Premises
pursuant to and in accordance with the requirements of such Lender's Loan
Document, or if no Lender then exists, by Landlord to Tenant for the
restoration of the Leased Premises pursuant to and in accordance with the
provisions of Paragraph 19 hereof. If any Casualty or Condemnation which is not
a Partial Casualty or Partial Condemnation shall occur, Tenant shall comply
with the terms and conditions of Paragraph 18.
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(d) The terms and provisions of this Paragraph 17 shall be subject
to all of the rights and requirements of any Lender under its Loan Documents.
18. Termination Events.
(a) If (i) all of the Leased Premises shall be taken by a
Condemnation, (ii) any substantial portion of the Leased Premises shall be
taken by a Condemnation and such taking materially and adversely affects the
operation of the portion of the Leased Premises not so taken and Tenant
certifies and covenants to Landlord that it will forever abandon operations at
the Leased Premises, or (iii) (A) all or any substantial portion of the Leased
Premises shall be damaged or destroyed by a Casualty, (B) Tenant certifies and
covenants to Landlord that it will forever abandon operations at the Leased
Premises, (C) a Lender elects ("LENDER'S ELECTION") not to release the
insurance proceeds payable in connection with such casualty for any reason
other than because a default or event of default under such Lender's Loan
Documents then exists which arose out of (1) Tenant's failure to perform or
observe any of its obligations or covenants under this Lease or (2) any act or
omission of Tenant or any of its subtenants or licensees or any of the agents,
contractors, employees or invitees of Tenant or any its subtenants or
licensees, it being acknowledged and agreed that any default or event of
default under any such Loan Documents which consists of the failure to pay any
monthly installment of principal and/or interest which became due under any
such Loan Documents shall be deemed to have arisen out of an act or omission of
Tenant if Tenant failed to pay when due the last monthly installment of Basic
Rent which became due prior to the due date of such monthly installment of
principal and/or interest, (D) the total amount of insurance proceeds which the
Lender elects not to release exceeds $50,000, and (E) Landlord fails to give
Tenant written notice ("LANDLORD'S NOTICE") within sixty (60) days after
Landlord's receipt of Lender's Election that Landlord will make available to
Tenant for restoration in accordance with the terms of this Agreement an amount
equal to the insurance proceeds not made so available by such Lender (which
amount shall be treated as part of the Restoration Fund (as defined below) for
all purposes of this Lease) (each of the events described in the above clauses
(i), (ii) and (iii) shall hereinafter be referred to as a "TERMINATION EVENT"),
then (x) in the case of (i) above, Tenant shall be obligated, within sixty (60)
days after Tenant receives a Condemnation Notice, (y) in the case of (ii)
above, Tenant shall have the option, within sixty (60) days after Tenant
receives a Condemnation Notice and (z) in the case of (iii) above, Tenant shall
have the option, within one hundred twenty (120) days after Landlord's receipt
of Lender's Election, to give to Landlord written notice (each, a "TERMINATION
NOTICE") in the form described in Paragraph 18(b) of the Tenant's election to
terminate this Lease.
(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease on the first Basic Rent Payment Date which
occurs at least sixty (60) days after the Fair Market Value Date (each, a
"TERMINATION DATE"), (ii) an offer of Tenant to pay to Landlord the Termination
Amount and (iii) if the Termination Event is an event described in Paragraph
18(a)(ii) or (iii), the certification and covenants described therein. Promptly
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upon the delivery to Landlord of a Termination Notice, Landlord and Tenant
shall commence to determine the Fair Market Value.
(c) If Landlord shall reject such offer to terminate this Lease
pursuant to Paragraph 18(b) above by written notice to Tenant (each, a
"REJECTION"), not later than thirty (30) days following the Fair Market Value
Date, then this Lease shall terminate on the applicable Termination Date;
provided, however, that, if Tenant has not satisfied all Monetary Obligations
and all other obligations and liabilities under this Lease which have arisen on
or prior to the Termination Date (collectively, the "REMAINING OBLIGATIONS") on
the applicable Termination Date, then Landlord may, at its option, extend the
date on which this Lease may terminate to a date which is no later than the
date on which Tenant shall have satisfied all Remaining Obligations. Upon such
termination (i) all obligations of Tenant hereunder (except for the Survival
Obligations) shall terminate, (ii) Tenant shall promptly vacate and shall have
no further right, title or interest in or to the Leased Premises and (iii) the
Net Award shall be retained by Landlord subject, however, to Tenant's rights to
any awards of payments described in the proviso set forth in Paragraph 17(b).
(d) Unless Tenant shall have received a Rejection not later than the
thirtieth (30th) day following the Fair Market Value Date, Landlord shall be
conclusively presumed to have accepted such offer. If such offer is accepted by
Landlord then, on the Termination Date, Tenant shall pay to Landlord the
Termination Amount and all Remaining Obligations and, if requested by Tenant,
Landlord shall (i) convey to Tenant the remaining portion thereof of the Leased
Premises, if any, and (ii) Landlord shall pay to or assign to Tenant Landlord's
entire interest in and to the Net Award, all in accordance with Paragraph 20.
(e) Notwithstanding anything to the contrary contained in this
Lease, Tenant shall, unless a Termination Event shall have occurred and Tenant
has given a Termination Notice, promptly restore the Leased Premises as
required by this Lease promptly after a Partial Casualty or Partial
Condemnation even though a Lender fails to make the Net Award relating thereto
available for such restoration pursuant to the exercise of such Lender's rights
under its Loan Documents; provided, however, that Tenant shall have no
obligation to perform such restoration in the event that such Lender fails to
deliver such proceeds related to such Partial Casualty or Partial Condemnation
when such proceeds are in an amount equal to or greater than $50,000.
19. Restoration.
(a) Subject to the rights of any Lender under its Loan Documents,
Landlord shall hold Net Award in excess of $1,000,000, or any Net Award of
$1,000,000 or less if an Event of Default then exists, in a fund (the
"RESTORATION FUND") and disburse amounts from the Restoration Fund in
accordance with the following conditions:
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(i) prior to commencement of restoration, the architects, contracts,
contractors, plans and specifications for the restoration shall have been
approved by Landlord, such approval not to be unreasonably withheld,
conditioned or delayed.
(ii) at the time of any disbursement no mechanics' or materialmen's
liens shall have been filed against any of the Leased Premises and remain
undischarged except for liens that are being contested in accordance with
Paragraph 14;
(iii) disbursements shall be made from time to time, upon receipt of
(A) reasonably satisfactory evidence of the stage of completion, the
estimated total cost of completion and performance of the work to date in
a good and workmanlike manner in material compliance with the contracts,
plans and specifications, (B) sworn statements and waivers of liens, and
(C) other evidence of cost and payment reasonably requested by Landlord so
that Landlord can verify that the amounts disbursed from time to time are
represented by work that is completed, in place and free and clear of
mechanics' and materialmen's lien claims except for claims being contested
in accordance with Paragraph 14;
(iv) each request for disbursement shall be accompanied by a
certificate of Tenant describing the work for which payment is requested,
stating the cost incurred in connection therewith, stating that Tenant has
not previously received payment for such work and, upon completion of the
work, also stating that the work has been fully completed and complies
with the applicable requirements of this Lease;
(v) if the Restoration Fund is held by Landlord, the Restoration
Fund shall not be commingled with Landlord's other funds and shall bear
interest at a rate agreed to by Landlord and Tenant; and
(vi) if at any time the estimated total cost of completion of the
Work exceeds the balance of the Restoration Fund then held by Landlord,
Tenant shall immediately deposit with Landlord an amount equal to such
excess and any such sums paid to Landlord shall be treated as part of the
Restoration Fund for all purposes of this Lease.
(b) If any sum remains in the Restoration Fund after completion of
the restoration, such sum shall be retained by Landlord.
20. Procedures upon Purchase.
(a) If the Leased Premises are purchased by Tenant pursuant to any
provision of this Lease, Landlord need not convey any better title thereto than
that which was conveyed to Landlord, and Tenant or its designee shall accept
such title, subject, however, to the Permitted Encumbrances and to all other
liens, exceptions and restrictions on, against or relating
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to any of the Leased Premises and to all applicable Laws, but free of the lien
of and security interest created by any Mortgage or Assignment and liens,
exceptions and restrictions on, against or relating to the Leased Premises or
Premises which have been created by or resulted solely from acts of Landlord,
unless the same are Permitted Encumbrances or customary utility easements
benefiting the Leased Premises or were created with the concurrence of Tenant
or as a result of a default by Tenant under this Lease.
(b) Upon the date fixed for any such purchase of the Leased Premises
pursuant to any provision of this Lease (any such date the "PURCHASE DATE"),
Tenant shall pay to Landlord, or to any Person to whom Landlord directs
payment, the Relevant Amount therefor specified herein, in Federal Funds, less
any credit of the Net Award received and retained by Landlord allowed against
the Relevant Amount, and Landlord shall deliver to Tenant (i) a deed
substantially in the form delivered by Tenant with respect to the Leased
Premises which describes the premises being conveyed and conveys the title
thereto as provided in Paragraph 20(a), (ii) such other instruments as shall be
reasonably necessary to transfer to Tenant or its designee any other property
(or rights to any Net Award not yet received by Landlord) then required to be
sold by Landlord to Tenant pursuant to this Lease and (iii) any Net Award
received by Landlord, not credited to Tenant against the Relevant Amount and
required to be delivered by Landlord to Tenant pursuant to this Lease;
provided, however, that if any Monetary Obligations remain outstanding on such
date, then Landlord may deduct from the Net Award the amount of such Monetary
Obligations. If on the Purchase Date any Monetary Obligations remain
outstanding and no Net Award is payable to Tenant by Landlord or the amount of
such Net Award is less than the amount of such Monetary Obligations, then
Tenant shall pay to Landlord on the Purchase Date the amount of such Monetary
Obligations. Upon the completion of such purchase, this Lease and all
obligations and liabilities of the parties hereunder shall terminate except for
those which expressly survive the termination of this Lease.
(c) If the completion of such purchase shall be delayed after (i)
the Termination Date, in the event of a purchase pursuant to Paragraph 18, or
(ii) the date scheduled for such purchase, in the event of a purchase under any
other provision of this Lease then (x) Rent shall continue to be due and
payable until completion of such purchase and (y) Fair Market Value shall be
redetermined and the Relevant Amount payable by Tenant pursuant to the
applicable provision of this Lease shall be adjusted to reflect such
redetermination.
(d) Any prepaid Monetary Obligations paid to Landlord shall be
prorated as of the Purchase Date, and the prorated unapplied balance shall be
deducted from the Relevant Amount due to Landlord.
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21. Assignment and Subletting; Prohibition Against Leasehold
Financing.
(a) (i) Except as set forth below in this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ may
not voluntarily, by operation of law or otherwise assign this Lease or sublet
any of the Leased Premises to any other Person, or permit any other Person to
use or occupy any of the Leased Premises, without the prior written consent of
Landlord and, to the extent required by the Loan Documents, each Lender. The
sale, issuance or transfer of any stock, partnership interest, membership
interest or other ownership interest in Tenant or any successor or assignee
thereof which results in a change in the direct of indirect control of Tenant
or such successor or assignee shall be deemed an assignment of this Lease and
be subject to the provisions of this Paragraph 21; provided, however, that no
consent of Landlord shall be required in the event that the assignee or
transferee shall at the time of assignment or transfer possess a credit rating
from Standard & Poor's Corporation (or in the absence of a rating from such
company, a rating issued by a comparable rating agency) equal to or greater
than that of Tenant at the time of such assignment or transfer.
(ii) Notwithstanding the foregoing, Tenant shall have the right,
upon thirty (30) days prior written notice to Landlord (and to the extent
required by the Loan Documents, to each Lender) with no consent of Landlord or,
unless otherwise required by its Loan Documents, Lender being required or
necessary (each, a "PREAPPROVED ASSIGNMENT") to assign this Lease as this Lease
relates to the entire Leased Premises by operation of law or otherwise to any
Person (each, a "PREAPPROVED ASSIGNEE") (1) that immediately following such
assignment shall have a rating from Standard & Poor's Corporation equal to or
better than the better of ["BBB-"] or the rating issued by Standard & Poor's
Corporation with respect to Tenant immediately following such assignment, and
in the event such rating agency ceases to furnish such ratings, then a
comparable rating by any rating agency reasonably acceptable to Landlord, and
such Person shall not at the time of such assignment be on Negative Watch by
Standard & Poors Corporation or a comparable rating agency or (2) that is, and
at all times during the Term continues to be, directly or indirectly, a
wholly-owned subsidiary of Tenant or the parent of Tenant.
(iii) If Tenant desires to assign this Lease, whether by operation
of law or otherwise, to a Person (each, a "NON-PREAPPROVED ASSIGNEE") who would
not be a Preapproved Assignee (each, a "NON-PREAPPROVED ASSIGNMENT") then
Tenant shall, not less than thirty (30) days prior to the date on which it
desires to make a Non-Preapproved Assignment submit to Landlord information
regarding the following with respect to the Non-Preapproved Assignee
(collectively, the "REVIEW CRITERIA"): (A) creditworthiness, (B) capital
structure, (C) operating history, (D) proposed use of the Leased Premises and
(E) any other information as Landlord shall reasonably require. Landlord shall
review such information and shall approve or disapprove the Non-Preapproved
Assignee (which approval shall not be unreasonably withheld, conditioned or
delayed) no later than the thirtieth (30th) day following receipt of all such
information. If a response is not received by Landlord by the expiration of
such
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thirty (30) day period, such non-Preapproved Assignee shall be deemed approved
by Landlord.
(b) Tenant shall have the right, upon thirty (30) days' prior
written notice to Landlord, to enter into one or more subleases that demise
leaseable space in the Leased Premises with no consent or approval of Landlord
being required or necessary provided that the leaseable space subleased
pursuant to such sublease and all other leaseable space leased pursuant to
other subleases then in existence do not exceed, in the aggregate, 50% of the
leaseable space in the Leased Premises with no consent of Landlord or, unless
so required under the Loan Documents, the Lender ("PREAPPROVED SUBLET").
(c) With respect to any proposed assignment as to which Landlord's
consent may not be unreasonably withheld, conditioned or delayed, Tenant shall
provide to Landlord information reasonably requested by Landlord to establish
that the proposed assignment satisfies the criteria set forth above for
Landlord's consent to not be unreasonably withheld, conditioned or delayed.
With respect to any Preapproved Assignment or Preapproved Sublet, Tenant shall
provide to Landlord information reasonably requested by Landlord to establish
that any proposed Preapproved Assignment or Preapproved Sublet satisfies the
criteria set forth above.
(d) If Tenant assigns all its rights and interest under this Lease,
the assignee under such assignment shall expressly assume all the obligations
of Tenant hereunder by a written instrument delivered to Landlord at the time
of such assignment. Each sublease of any of the Leased Premises shall be
subject and subordinate to the provisions of this Lease.
(e) Tenant shall, within ten (10) days after the execution and
delivery of any assignment or sublease, deliver a duplicate original copy
thereof to Landlord which, in the event of an assignment, shall be in
recordable form.
(f) Tenant shall not have the power to mortgage, pledge or otherwise
encumber its interest under this Lease and any such mortgage, pledge or
encumbrance made in violation of this Paragraph 21 shall be void and of no
force and effect.
(g) No assignment of this Lease or subletting of all or any portion
of the Leased Premises, whether or not consented to by Landlord or any Lender,
shall release or relieve Tenant from the performance or observance of any of
its covenants or obligations under this Lease.
(h) Landlord may sell or transfer the Leased Premises at any time
without Tenant's consent to any third party, subject to the rights of Tenant
under this Lease and an assumption of the obligations of Landlord hereunder by
the purchaser or other transferee (each, a "THIRD PARTY PURCHASER") arising
subsequent to such sale or transfer. In the event of any such transfer, Tenant
shall attorn in writing to any Third Party Purchaser as Landlord so long
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as such Third Party Purchaser and Landlord notify Tenant in writing of such
transfer and as long as such Third-Party Purchaser agrees in writing to
recognize the rights of Tenant under this Lease. At the request of Landlord,
Tenant will execute such documents confirming the agreement referred to above
and such other agreements as Landlord may reasonably request in form and
substance reasonably acceptable to Tenant, provided that such agreements do not
increase the liabilities and obligations of Tenant hereunder. Notwithstanding
anything to the contrary contained in this Lease, Landlord or any subsequent
successor or assign of Landlord shall be liable only for the performance and
observance of those covenants and obligations of Landlord which arise during
its period of ownership of the Leased Premises.
22. Events of Default.
(a) The occurrence of any one or more of the following (after
expiration of any applicable cure period as provided in Paragraph 22(b)) shall,
at the option of Landlord, constitute an "EVENT OF DEFAULT" under this Lease:
(i) a failure by Tenant to make any payment of any Monetary
Obligation, within five (5) days of its due date;
(ii) a failure by Tenant to perform or observe any obligation or
covenant under this Lease except for a Monetary Obligation;
(iii) any representation or warranty made by Tenant herein or in any
certificate, demand or request made pursuant hereto proves to be
incorrect, in any material respect;
(iv) Tenant shall (A) voluntarily be adjudicated a bankrupt or
insolvent, (B) seek or consent to the appointment of a receiver or trustee
for itself or for the Leased Premises, (C) file a petition seeking relief
under the bankruptcy or other similar laws of the United States, any state
or any jurisdiction, or (D) make a general assignment for the benefit of
creditors;
(v) a court shall enter an order, judgment or decree appointing,
without the consent of Tenant, a receiver or trustee for it or for any of
the Leased Premises or approving a petition filed against Tenant which
seeks relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment or decree
shall remain undischarged or unstayed sixty (60) days after it is entered;
(vi) Tenant shall be liquidated or dissolved or shall begin
proceedings towards its liquidation or dissolution;
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(vii) the estate or interest of Tenant in any of the Leased Premises
shall be levied upon or attached in any proceeding and such estate or
interest is about to be sold or transferred or such process shall not be
bonded, vacated or discharged within sixty (60) days after it is made,
unless Tenant shall be contesting such levy or attachment in accordance
with the requirements of Paragraph 14 hereof; or
(viii) a failure by Tenant to maintain in effect any license or
permit to the extent such failure can be reasonably expected to have a
materially adverse effect on the use, occupancy or operation of the Leased
Premises;
(b) If the default consists of the failure to pay any Monetary
Obligation other than Basic Rent under clause (ii) of Paragraph 22(a) and such
Monetary Obligation does not otherwise constitute an obligation of Landlord
under any Loan Documents, the applicable cure period shall be ten (10) Business
Days from the date on which notice is given, but Landlord shall not be
obligated to give notice of, or allow any cure period for, the same default
more than twice within any Lease Year. If the default consists of a default
under clause (ii) of Paragraph 22(a), the applicable cure period shall be the
lesser of (A) thirty (30) days from the date on which notice is given by
Landlord to Tenant or, if the default cannot be cured within such thirty (30)
day period and delay in the exercise of a remedy would not (in Landlord's
reasonable judgment) cause any material adverse harm to Landlord or any of the
Leased Premises, the cure period shall be extended for the period required to
cure the default (but such cure period, including any extension, shall not in
the aggregate exceed sixty (60) days); provided, however, that Tenant shall
commence to cure the default within the said thirty (30) day period and shall
actively, diligently and in good faith proceed with and continue the curing of
the default until it shall be fully cured; or (B) if such default also
constitutes a default under any Loan Documents, the period of time, if any,
afforded Landlord under any such Loan Documents to cure such default.
23. Remedies and Damages upon Default.
(a) If an Event of Default shall have occurred and is continuing,
Landlord shall have the right, at its sole option, then or at any time
thereafter, to exercise its remedies and to collect damages from Tenant in
accordance with this Paragraph 23, subject in all events to applicable Law,
without demand upon or notice to Tenant except as otherwise provided in
Paragraph 22(b) and this Paragraph 23.
(i) Landlord may give Tenant notice of Landlord's intention to
terminate this Lease on a date specified in such notice. Upon such date,
this Lease, the estate hereby granted and all rights of Tenant hereunder
shall expire and terminate. Upon such termination, Tenant shall promptly
surrender and deliver possession of the Leased Premises to Landlord in
accordance with Paragraph 26. If Tenant does not so surrender and deliver
possession of the Leased Premises, Landlord may re-enter and
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repossess the Leased Premises by summary proceedings and by peaceably
entering the Leased Premises and changing locks or by summary proceedings,
ejectment or any other lawful means or procedure. Upon or at any time
after taking possession of the Leased Premises, Landlord may, by peaceable
means or legal process, remove any Persons or property therefrom.
(ii) After repossession of the Leased Premises pursuant to clause
(i) above, Landlord shall have the right to relet any of the Leased
Premises to such tenant or tenants, for such term or terms, for such rent,
on such conditions and for such uses as Landlord may reasonably determine,
and collect and receive any rents payable by reason of such reletting.
Landlord may make such Alterations in connection with such reletting as it
may deem advisable in its sole discretion. Notwithstanding anything to the
contrary contained in this Lease, Tenant's Monetary Obligations shall
survive the termination of this Lease, subject to any payment received by
Landlord from Tenant under subparagraph (a)(iv) below.
(iii) Landlord may, upon notice to Tenant, require Tenant to make an
irrevocable offer to terminate this Lease upon payment to Landlord of an
amount (the "DEFAULT TERMINATION AMOUNT") specified in the next sentence.
The "Default Termination Amount" shall be the sum of the Fair Market Value
of the Leased Premises and the applicable Prepayment Premium which
Landlord will be required to pay in prepaying any Loan with proceeds of
the Default Termination Amount. Upon such notice to Tenant, Tenant shall
be deemed to have made such offer. Within thirty (30) days after the Fair
Market Value Date, Landlord shall accept or reject such offer. If Landlord
accepts such offer then, on the tenth (10th) business day after such
acceptance, Tenant shall pay to Landlord the Default Termination Amount
and, at the request of Tenant, Landlord will convey the Leased Premises to
Tenant or its designee in accordance with Paragraph 20.
(iv) Landlord may declare by notice to Tenant the entire Basic Rent,
regardless of whether or not Landlord previously terminated or
subsequently terminates this Lease (but subject to the last sentence of
this clause (iv)), for the remainder of the then current Term (or if this
Lease has been terminated, what would have been the remainder of the then
current Term had this Lease not been so terminated) to be immediately due
and payable ("LANDLORD'S ACCELERATION NOTICE"). Tenant shall immediately
pay to Landlord all such Basic Rent discounted to its Present Value, all
accrued Rent then due and unpaid, all other Monetary Obligations which are
then due and unpaid and all Monetary Obligations which arise or become due
by reason of such Event of Default. Notwithstanding anything to the
contrary contained in this Lease, if Tenant pays to Landlord all such
accelerated Basic Rent and Monetary Obligations within ten (10) days after
Landlord's Acceleration Notice is given, Landlord shall have no right to
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terminate this Lease solely because of Tenant's failure to pay any Rent or
other Monetary Obligation which had become due at the date of Landlord's
Acceleration Notice.
(v) Notwithstanding anything in this Paragraph 23 to the contrary,
Landlord expressly waives its rights to forcibly dispossess Tenant from
the Leased Premises, whether peaceably or otherwise, without judicial
process, such that Landlord shall not be entitled to any "commercial
lockout" or any other provisions of applicable Law which permit landlords
to dispossess tenants from commercial properties without the benefit of
judicial review.
(b) Notwithstanding anything to the contrary herein contained, in
lieu of or in addition to any of the foregoing remedies and damages, Landlord
may exercise any remedies and collect any damages available to it at law or in
equity with respect to any Event of Default or any failure of Tenant to perform
or observe any of its covenants or obligations under this Lease regardless of
whether or not such failure ultimately becomes an Event of Default. If Landlord
is unable to obtain full satisfaction pursuant to the exercise of any remedy,
it may pursue any other remedy which it has hereunder or at law or in equity.
(c) Landlord shall not be required to mitigate any of its damages
hereunder unless required to by applicable Law. If any Law shall validly limit
the amount of any damages provided for herein to an amount which is less than
the amount agreed to herein, Landlord shall be entitled to the maximum amount
available under such Law.
(d) No termination of this Lease, repossession or reletting of the
Leased Premises, exercise of any remedy or collection of any damages pursuant
to this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(e) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD OR TENANT
HEREUNDER, LANDLORD AND TENANT HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY.
(f) Upon the occurrence and during the continuance of an Event of
Default, Landlord shall have the right (but no obligation) to perform any act
required of Tenant hereunder and, if performance of such act requires that
Landlord enter the Leased Premises, Landlord may enter the Leased Premises for
such purpose during normal business hours and upon reasonable prior notice to
Tenant, except that Landlord may, in the case of an emergency, enter the Leased
Premises other than during normal business hours without prior notice to
Tenant. All amounts paid or costs incurred by Landlord in performing any such
act shall constitute Additional Rent.
(g) No failure of Landlord (i) to insist at any time upon the strict
performance of any provision of this Lease or (ii) to exercise any option,
right, power or remedy contained in this Lease shall be construed as a waiver,
modification or relinquishment thereof. A
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receipt by Landlord of any sum in satisfaction of any Monetary Obligation with
knowledge of the breach of any provision hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision hereof shall be deemed
to have been made unless expressed in a writing signed by Landlord, except to
the extent expressly modified, waived or relinquished pursuant to Paragraph
35(f).
(h) Tenant hereby waives and surrenders, for itself and all those
claiming under it, including creditors of all kinds, (i) any right and
privilege which it or any of them may have under any present or future Law to
redeem any of the Leased Premises or to have a continuance of this Lease after
termination of this Lease or of Tenant's right of occupancy or possession
pursuant to any court order or any provision hereof, and (ii) the benefits of
any present or future Law which exempts property from liability for debt or for
distress for rent.
(i) Except as otherwise provided herein, all remedies are cumulative
and concurrent and no remedy is exclusive of any other remedy and each remedy
may be exercised from time to time. No remedy shall be exhausted by any
exercise thereof.
24. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or
permitted to be given pursuant to the provisions of this Lease shall be in
writing and shall be deemed to have been given and received for all purposes
when delivered in person or by Federal Express or other reliable 24-hour
delivery service or three (3) Business Days after being deposited in the United
States mail, by registered or certified mail, return receipt requested, postage
prepaid, addressed to the other party at its address stated above or when
delivery is refused. A copy of any notice given by Tenant to Landlord shall
simultaneously be given by Tenant to ▇▇▇▇▇ ▇▇▇▇ PLC, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. A copy
of any notice given by Landlord to Tenant shall simultaneously be given by
Landlord to ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. For the purposes of this Paragraph, any
party may substitute another address stated above (or substituted by a previous
notice) for its address by giving fifteen (15) days' notice of the new address
to the other party, in the manner provided above.
25. Estoppel Certificate. At any time upon not less than fifteen
(15) days' prior written request by either Landlord or Tenant (the "REQUESTING
PARTY") to the other party (the "RESPONDING PARTY"), the Responding Party shall
deliver to the Requesting Party a statement in writing, executed by an
authorized officer of the Responding Party (the "CERTIFICATE"), certifying (a)
that, except as otherwise specified, this Lease is unmodified and in full force
and effect, (b) the dates to which Basic Rent, Additional Rent and all other
Monetary Obligations have been paid, (c) that, to the knowledge of the signer
of such certificate and except as otherwise specified, no default by either
Landlord or Tenant exists hereunder, and (d) such other matters as the
Requesting Party may reasonably request. Any such statements by the Responding
Party may be relied upon by the Requesting Party, any Person whom the
Requesting
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Party notifies the Responding Party in its request for the Certificate is an
intended recipient or beneficiary of the Certificate, any Lender or their
assignees and by any prospective purchaser or mortgagee of any of the Leased
Premises, provided that the Requesting Party notifies the Responding Party of
the identity of such recipient. Any certificate required under this Paragraph
25 and delivered by Tenant or Landlord shall state that, in the opinion of each
person signing the same, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to the subject matter
of such certificate, and shall briefly state the nature of such examination or
investigation.
26. Surrender; Holding Over.
(a) Upon the expiration or earlier termination of this Lease, Tenant
shall peaceably leave and surrender the Leased Premises to Landlord in
substantially the same condition in which the Leased Premises was at the
commencement of this Lease, except as repaired, rebuilt, restored, altered,
replaced or added to as permitted or required by any provision of this Lease,
and except for ordinary wear and tear. Upon such surrender, Tenant shall (a)
remove from the Leased Premises all property which is owned by Tenant or third
parties other than Landlord and (b) repair any damage caused by such removal.
Property not so removed shall become the property of Landlord, and Landlord may
thereafter cause such property to be removed from the Leased Premises. The
reasonable cost of removing and disposing of such property and repairing any
damage to any of the Leased Premises caused by such removal shall be paid by
Tenant to Landlord upon demand. Landlord shall not in any manner or to any
extent be obligated to reimburse Tenant for any such property which becomes the
property of Landlord pursuant to this Paragraph 26.
(b) If Tenant fails to surrender possession of the Leased Premises
to Landlord at the expiration or earlier termination of this Lease, then Tenant
shall be a tenant at sufferance and, in addition to all other damages and
remedies to which Landlord may be entitled for such holding over, Tenant shall
pay, in addition to the other Rent, a daily Basic Rent equal to the greater of
(i) 5% of the monthly installment of Basic Rent payable during the last full
month of the Term, or (ii) 100% of the then prevailing rental rate for the
Leased Premises unless Landlord has entered into a lease with another tenant
for all or a portion of the Leased Premises, in which case the amount
calculated under this clause (ii) shall be equal to 125% of the then prevailing
rental rate for the Leased Premises. The provisions of this Paragraph 26(b)
shall not be deemed to limit or constitute a waiver of any other rights or
remedies of Landlord provided herein or at law. If Tenant fails to surrender
the Leased Premises upon the termination or expiration of this Lease, in
addition to any other liability to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all losses, costs
(including reasonable attorneys' fees) and liability resulting from such
failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender,
and any lost profits to Landlord resulting therefrom.
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27. No Merger of Title. There shall be no merger of the leasehold
estate created by this Lease with the fee estate in any of the Leased Premises
by reason of the fact that the same Person may acquire or hold or own, directly
or indirectly, (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in any of the Leased Premises or any
part thereof or interest therein, unless and until all Persons having any
interest in the interests described in (a) and (b) above which are sought to be
merged shall join in a written instrument effecting such merger and shall duly
record the same.
28. Books and Records. Tenant shall keep adequate records and books
of account with respect to the finances and business of Tenant generally and
with respect to the Leased Premises, in accordance with generally accepted
accounting principles ("GAAP") consistently applied, and shall permit Landlord
by its agents, accountants and attorneys, upon reasonable notice to Tenant, to
visit and inspect the Leased Premises in accordance with the provisions of
Paragraph 4(b) hereof and examine the records and books of account and to
discuss the finances and business with the officers of Tenant, at such
reasonable times as may be requested by Landlord.
29. Determination of Value.
(a) Whenever a determination of Fair Market Value or Fair Market
Rental Value, as applicable, is required pursuant to any provision of this
Lease, such Fair Market Value or Fair Market Rental Value, as applicable, shall
be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair
Market Value within thirty (30) days after the date (the "APPLICABLE
INITIAL DATE") on which Landlord provides Tenant with notice of Landlord's
intention to require Tenant to make an offer to terminate this Lease
pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to
agree on Fair Market Rental Value on the date (also, an "APPLICABLE
INITIAL DATE") which is six (6) calendar months prior to the expiration of
the first Renewal Term unless Tenant has previously exercised its option
pursuant to Paragraph 5(b) not to have the Term automatically extended for
the second Renewal Term. Upon reaching such agreement, the parties shall
execute an agreement setting forth the amount of such Fair Market Value or
Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within
thirty (30) days after the Applicable Initial Date, Tenant shall within
fifty (50) days after the Applicable Initial Date select an appraiser and
notify Landlord in writing of the name, address and qualifications of such
appraiser. Within twenty (20) days following Landlord's receipt of
Tenant's notice of the appraiser selected by Tenant, Landlord shall select
an appraiser and notify Tenant of the name, address and qualifications of
such appraiser. Such two appraisers shall endeavor to agree upon Fair
Market Value or Fair
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Market Rental Value based on a written appraisal made by each of them (and
given to Landlord by Tenant) as of the Relevant Date. If such two
appraisers shall agree upon a Fair Market Value or Fair Market Rental
Value, the amount of such Fair Market Value or Fair Market Rental Value as
so agreed shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two appraisers shall be unable to agree upon a Fair
Market Value or Fair Market Rental Value within twenty (20) days after the
selection of an appraiser by Landlord, then such appraisers shall advise
Landlord and Tenant of their respective determination of Fair Market Value
or Fair Market Rental Value and shall select a third appraiser to make the
determination of Fair Market Value or Fair Market Rental Value. The
selection of the third appraiser shall be binding and conclusive upon
Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the
designation of a third appraiser within ten (10) days after the expiration
of the twenty (20) day period referred to in clause (iii) above, or if
such third appraiser does not make a determination of Fair Market Value or
Fair Market Rental Value within twenty (20) days after his selection, then
such third appraiser or a substituted third appraiser, as applicable,
shall, at the request of either party hereto, be appointed by the office
of the American Arbitration Association in Detroit, Michigan. The
determination of Fair Market Value or Fair Market Rental Value made by the
third appraiser appointed pursuant hereto shall be made within twenty (20)
days after such appointment.
(v) If a third appraiser is selected, Fair Market Value or Fair
Market Rental Value shall be the average of the determination of Fair
Market Value or Fair Market Rental Value made by the third appraiser and
the determination of Fair Market Value or Fair Market Rental Value made by
the appraiser (selected pursuant to Paragraph 29(a)(ii) hereof) whose
determination of Fair Market Value or Fair Market Rental Value is nearest
to that of the third appraiser. Such average shall be binding and
conclusive upon Landlord and Tenant.
(vi) All appraisers selected or appointed pursuant to this Paragraph
29(a) shall (A) be independent qualified MAI appraisers, (B) have no
right, power or authority to alter or modify the provisions of this Lease,
(C) utilize the definition of Fair Market Value or Fair Market Rental
Value herein set forth above, and (D) be registered in the State if the
State provides for or requires such registration. The Cost of the
appraiser selected by a party shall be borne such party and if a third
appraiser is selected, the Cost of such appraiser shall be shared equally
by Landlord and Tenant.
(b) If, by virtue of any delay, Fair Market Value is not determined
by the expiration or termination of the then current Term, then the date on
which the Term would
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otherwise expire or terminate shall be extended with respect to the Leased
Premises or the Affected Premises, as applicable, to the date specified for
termination in the particular provision of this Lease pursuant to which the
determination of Fair Market Value is being made. If, by virtue of any delay,
Fair Market Rental Value is not determined by the expiration or termination of
the first Renewal Term, then until Fair Market Rental Value is determined,
Tenant shall continue to pay Basic Rent during the second Renewal Term in the
same amount which it was obligated under this Lease to pay prior to the
commencement of the second Renewal Term. When Fair Market Rental Value is
determined, the appropriate Basic Rent shall be calculated retroactive to the
commencement of the second Renewal Term and Tenant shall pay any deficiency to
Landlord.
(c) In determining Fair Market Rental Value, the appraisers shall
determine with respect to the Leased Premises the amount that a willing tenant
would pay, and a willing landlord would accept, at arm's length, to rent
comparable premises in the city/township of Plymouth/▇▇▇▇, taking into account:
(a) the age, quality and condition (as required by this Lease) of the
Improvements; (b) that the Leased Premises will be leased as a whole or
substantially as a whole to a single user; (c) a lease term of ten (10) years;
(d) a triple net lease; and (e) such other items that professional real estate
appraisers customarily consider.
30. Non-Recourse as to Landlord. Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any liability of
Landlord under this Lease shall be enforced only against the Leased Premises
and not against any other assets, properties or funds of (i) Landlord, (ii) any
director, officer, member, general partner, shareholder, limited partner,
beneficiary, employee or agent of Landlord or any general partner of Landlord
or any of its members or general partners (or any legal representative, heir,
estate, successor or assign of any thereof), (iii) any predecessor or successor
partnership or corporation (or other entity) of Landlord or any of its general
partners, shareholders, officers, directors, members, employees or agents,
either directly or through Landlord or its general partners, shareholders,
officers, directors, employees or agents or any predecessor or successor
partnership or corporation (or other entity), or (iv) any Person affiliated
with any of the foregoing, or any director, officer, employee or agent of any
thereof.
31. Costs; Financing.
(a) Tenant agrees to pay all reasonable costs and expenses incurred
by Landlord in connection with the purchase and leasing of the Leased Premises,
including environmental assessment and appraisal costs, transfer costs and
recording fees and transfer taxes, if any, survey costs, and the premium for a
title insurance policy. Each party shall pay its own legal fees and
disbursements, charges and expenses in connection with the purchase and leasing
of the Leased Premises.
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(b) Notwithstanding the foregoing, if any litigation is instituted
between the parties pertaining to this Lease, the losing party shall pay to the
prevailing party all expenses incurred by the prevailing party in connection
with such litigation, including attorney's fees.
(c) If Landlord desires to obtain or refinance any Loan, Tenant
shall negotiate in good faith with Landlord concerning any request made by any
Lender or proposed Lender for changes or modifications in this Lease. Tenant
shall provide any other consent or statement and shall execute any other
documents that such Lender reasonably requires in connection with such
financing so long as the same do not adversely affect any right, benefit or
privilege of Tenant under this Lease or increase Tenant's obligations under
this Lease.
32. Subordination, Non-Disturbance and Attornment. This Lease and
Tenant's interest hereunder shall be subordinate to any Mortgage or other
security instrument now or hereafter placed upon the Leased Premises by
Landlord, and to any and all advances made or to be made thereunder, to the
interest thereon, and all renewals, replacements and extensions thereof;
provided, however, that (a) any such Mortgage or other security instrument
shall provide for the recognition of this Lease and all Tenant's rights
hereunder except as otherwise provided in the agreements described below and
(b) Tenant shall execute such further instrument or instruments subordinating
this Lease to the lien of any such mortgage or other security instrument as
shall be desired by the holder of such mortgage or other security instrument,
provided (i) such instrument is substantially similar in form and substance to
the documents attached hereto as Exhibit J or (ii) such instrument is a form of
Subordination, Non-Disturbance and Attornment Agreement which contains
provisions typically required by sophisticated lenders in southeastern Michigan.
33. Tax Treatment; Reporting. Landlord and Tenant each acknowledge
that each shall treat this transaction as a true lease for State law purposes
and shall report this transaction as a Lease for Federal income tax purposes.
For Federal income tax purposes each shall report this Lease as a true lease
with Landlord as the owner of the Leased Premises and Fixtures and Tenant as
the lessee of such Leased Premises and Fixtures, including: (1) treating
Landlord as the owner of the property eligible to claim depreciation deductions
under Section 167 or 168 of the Internal Revenue Code of 1986 (the "Code") with
respect to the Leased Premises and Fixtures, (2) Tenant reporting its Rent
payments as rent expense under Section 162 of the Code, and (3) Landlord
reporting the Rent payments as rental income.
34. Right of First Refusal. In the event that Landlord at any time
during the Lease Term should receive and determine to accept a bona fide offer
from a party to purchase Landlord's interest in the Leased Premises or any
portion thereof, Landlord shall deliver a written notice to Tenant (each, a
"NOTICE OF SALE") of such offering together with a true copy of the contract of
sale (the "CONTRACT") executed by such party submitting the offer and true
copies of any other documents related thereto. Tenant shall have twenty (20)
days following
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its receipt of the Notice of Sale in which to (i) elect to exercise its right
to purchase such portion of the Leased Premises on the same terms, conditions
and provisions set forth in the Contract (the "RIGHT OF FIRST REFUSAL") and
(ii) deliver to Landlord the down payment or deposit, if any, required pursuant
to the provisions of the Contract which down payment or deposit shall be held
in accordance with the terms of the Contract. Notwithstanding anything else in
this Paragraph 34, Tenant shall forfeit its Right of First Refusal during the
existence of an uncured Event of Default. Notwithstanding anything to the
contrary contained in this Paragraph 34, Tenant's Right of First Refusal shall
not apply to (a) any sale of all or any portion of the Leased Premises made
subsequent to the first sale of all or any portion of the Leased Premises to a
third party in accordance with the terms and provisions of this Paragraph 34 or
(b) any transfer of the Leased Premises pursuant to the foreclosure of a
Mortgage or a deed in lieu of foreclosure of a Mortgage or any sale of all or
any portion of the Leased Premises made subsequent to such foreclosure or deed
in lieu of foreclosure.
(a) If the Tenant shall so elect to exercise its Right of First
Refusal under subparagraph (b) of this Paragraph 34, Landlord and Tenant
shall promptly thereafter enter into a contract of sale upon the same terms
and conditions as set forth in the Contract.
(b) Failure by Tenant to exercise the Right of First Refusal shall
constitute a waiver of such Right of First Refusal as to that offer only,
and Landlord shall have the right to consummate the transaction set forth
in the Contract at a purchase price equal to or greater than the purchase
price therein set forth, and, upon closing of such transaction, Tenant's
Right of First Refusal shall terminate. Landlord shall again comply with
the provisions of this Paragraph 34(b) in the event that (A) the closing
under the Contract shall not occur within one hundred eighty (180) days of
the earlier of (x) the expiration of the 20-day period specified in this
Paragraph 34(b) and (y) the date upon which Tenant shall notify Landlord
in writing that Tenant does not elect to purchase Landlord's interest in
the Leased Premises pursuant to the terms set forth in the Contract or (B)
Landlord intends to enter into a sale of Landlord's interest in the Leased
Premises with another party unaffiliated with the offeror under the
Contract or into a sale with a purchase price less than the purchase price
set forth in the Contract.
35. Miscellaneous.
(a) The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of this Lease or to
be used in determining the intent of the parties or otherwise interpreting this
Lease.
(b) As used in this Lease, the singular shall include the plural and
any gender shall include all genders as the context requires and the following
words and phrases shall have the following meanings: (i) "including" shall mean
"including, without limitation"; (ii)
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"provisions" shall mean "provisions, terms, agreements, covenants and/or
conditions"; (iii) "lien" shall mean "lien, charge, encumbrance, title
retention agreement, pledge, security interest, mortgage and/or deed of trust";
(iv) "obligation" shall mean "obligation, duty, agreement, liability, covenant
and/or condition"; (v) "any of the Leased Premises" shall mean "the Leased
Premises or any part thereof or interest therein"; (vi) "any of the Land" shall
mean "the Land or any part thereof or interest therein"; (vii) "any of the
Improvements" shall mean "the Improvements or any part thereof or interest
therein"; and (viii) "any of the Fixtures" shall mean "the Fixtures or any part
thereof or interest therein".
(c) Any act which Landlord is permitted to perform under this Lease
may be performed at any time and from time to time by Landlord or any person or
entity designated by Landlord. Landlord shall not unreasonably withhold or
delay its consent wherever such consent is required under this Lease.
(d) Landlord shall in no event be construed for any purpose to be a
partner, joint venturer or associate of Tenant or of any subtenant, operator,
concessionaire or licensee of Tenant with respect to any of the Leased Premises
or otherwise in the conduct of their respective businesses.
(e) This Lease and any documents which may be executed by Tenant on
or about the effective date hereof at Landlord's request constitute the entire
agreement between the parties and supersede all prior understandings and
agreements, whether written or oral, between the parties hereto relating to the
Leased Premises and the transactions provided for herein. Landlord and Tenant
are business entities having substantial experience with the subject matter of
this Lease and have each fully participated in the negotiation and drafting of
this Lease. Accordingly, this Lease shall be construed without regard to the
rule that ambiguities in a document are to be construed against the drafter.
(f) This Lease may be modified, amended, discharged or waived only
by an agreement in writing signed by the party against whom enforcement of any
such modification, amendment, discharge or waiver is sought.
(g) The covenants of this Lease shall run with the land and bind
Tenant, its successors and assigns and all present and subsequent encumbrancers
and subtenants of any of the Leased Premises, and shall inure to the benefit of
Landlord, its successors and assigns and Tenant and its permitted successors
and assigns. Tenant acknowledges that the Indemnitees are third party
beneficiaries of the terms and provision of Paragraph 15 of this Agreement and
shall have the right to enforce the same directly against Tenant.
(h) If any one or more of the provisions contained in this Lease
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Lease, but this Lease shall
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be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
(i) All exhibits attached hereto are incorporated herein as if fully
set forth.
(j) This Lease shall be governed by and construed and enforced in
accordance with the Laws of the State.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed under seal as of the day and year first above written.
LANDLORD:
ANCHOR COURT, L.L.C.,
a Michigan limited liability company
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
TENANT:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.,
a Delaware corporation
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer