1
BUILDING LEASE
Between
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ PROPERTIES
a Michigan Co-Partnership
(Landlord)
and
ENERGY ELECTRIC CABLE, INC.
a Michigan Corporation
(Tenant)
DATED: December 22, 1988
2
BUILDING LEASE
PREAMBLE
This Lease made as of the ______________ day of ___________________
____, by and between:
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Properties
a Michigan Co-Partnership
Whose address is:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ # ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
as lessor ("Landlord"), and
Energy Electric Cable Inc.,
a Michigan Corporation
whose address is:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
as lessee ("Tenant").
3
INDEX
SECTION I................................................................... 1
1.1 Demise of Premises.............................................. 1
SECTION II.................................................................. 1
2.1 Construction of Improvements.................................... 1
SECTION III................................................................. 2
3.1 Term of Lease................................................... 2
3.2 Commencement Date............................................... 2
SECTION IV.................................................................. 3
4.1 Obligation to Pay Rent.......................................... 3
4.2 Annual Rent..................................................... 3
4.3 Option to Renew................................................. 4
4.4 Annual Rent Net to Landlord..................................... 4
SECTION V................................................................... 5
5.1 Additional Rent................................................. 5
5.2 Method of Payment............................................... 5
5.3 Late Charges.................................................... 5
5.4 Security Deposit................................................ 5
SECTION VI.................................................................. 7
6.1 Definition of Expenses.......................................... 7
6.2 Definition of "Real Estate Taxes"............................... 7
6.3 Definition of "Insurance Premiums".............................. 8
6.4 Utility Costs................................................... 8
SECTION VII................................................................. 8
7.1 Maintenance of Insurance........................................ 8
7.2 Liability Insurance............................................. 9
7.3 Hazard Insurance................................................10
7.4 Acceptable Insurers.............................................11
7.5 Other Insurance.................................................11
7.6 Failure to Provide..............................................11
7.7 Insurance Proceeds..............................................11
SECTION VIII................................................................12
8.1 Maintenance and Repair..........................................12
SECTION IX..................................................................13
9.1 Indemnification.................................................13
4
SECTION X...................................................................14
10.1 Landlord May Cure Tenant's Default..............................14
SECTION XI..................................................................15
11.1 Alterations by Tenant...........................................15
11.2 Ownership Upon Expiration of Lease..............................15
11.3 Mechanics Liens.................................................16
SECTION XII.................................................................17
12.1 Repairs to Premises.............................................17
12.2 Extension of Term...............................................17
12.3 Landlord's Option to Terminate..................................18
12.4 Partial Damage to Premises......................................19
12.5 Waiver of Subrogation...........................................19
SECTION XIII................................................................20
13.1 Use of Premises.................................................20
13.2 Surrender of Premises...........................................20
13.3 Compliance with Law.............................................21
SECTION XIV.................................................................22
14.1 Total Taking....................................................22
14.2 Landlord's Option to Terminate..................................22
14.3 Repair of Premises..............................................23
14.4 Rights to Award.................................................23
14.5 Adjustment of Rent..............................................23
SECTION XV..................................................................25
15.2 Assignment and Subletting by Tenant.............................25
15.2 Landlord's Mortgage Provisions..................................25
15.2.1. Landlord's Rights to Subordinate Lease.........................26
15.2.2. Estoppel Certificate...........................................26
15.2.3. Changes to Lease Required by Lender............................27
SECTION XVI.................................................................27
16.1 Definition of Event of Default..................................27
16.2 Remedies........................................................28
16.3 Termination Notice..............................................30
16.4 Waiver..........................................................30
5
SECTION XVII................................................................30
17.1 Landlord's Option To Terminate Upon
Insolvency of Tenant............................................30
17.2 Tenant's Interest Not Transferable by
Virtue of State Insolvency Law without
Landlord's Consent..............................................31
17.3 Time for Assumption or Rejection
of Lease in Tenant's Bankruptcy.................................31
17.4 Conditions to the Assumption of
Lease in Bankruptcy Proceedings.................................32
17.5 Assignment of Lease by Tenant...................................34
17.6 Measure of Damages..............................................34
SECTION XVIII...............................................................35
18.1 Quiet Enjoyment.................................................35
SECTION XIX.................................................................35
19.1 Notice..........................................................35
19.2 Holding Over....................................................35
19.3 Landlord's Access...............................................36
19.4 Provisions Relating to Landlord.................................36
19.5 Landlord's Representations......................................37
19.6 Entire Agreement................................................37
19.7 Memorandum of Lease.............................................38
19.8 Modification; Waivers...........................................38
19.9 Applicable Law; Binding Effect;
Topical Headings................................................38
19.10 Force Majeure...................................................38
SECTION XX..................................................................39
Exhibits to Lease......................................................39
6
SECTION I
Demise of Premises
1.1 Demise of Premises
Landlord hereby leases to Tenant and Tenant hires from Landlord certain
premises ("Leased Premises" or "Premises") to be constructed located in the City
of Auburn Hills and commonly known as ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
The Premises consist of the land ("Land") described in Exhibit A attached
hereto and the building ("Building") and related improvements (together with the
Building, collectively referred to as the "Improvements") to be constructed
thereon as described in Exhibit B attached hereto.
SECTION II
Construction of Improvements
2.1 Construction of Improvements
Landlord agrees to construct the Improvements on the Land, prior to the
Commencement Date (defined in Section 3.2) in accordance with the plans and
specifications attached hereto as Exhibit B on the property owned by Landlord
described in Exhibit A attached hereto. No "minor" change from the plans which
may become necessary during construction will invalidate, change, or affect this
Lease, provided that, unless the Tenant shall otherwise agree in writing, such
changes do not adversely affect the size or utility of the Improvements for
Tenant's intended use.
7
SECTION III
Term of Lease
3.1 Term of Lease
The Term of this Lease begins on the Commencement Date (as defined in
Section 3.2) and continues for a period of five (5) years beginning on the
Commencement Date or, if the Commencement Date is other than the first day of a
calendar month, then beginning on the first day of the first calendar month
following the Commencement Date ("Anniversary Date").
"Lease Year" shall mean the consecutive twelve month period following the
Commencement Date or, if the Commencement Date is other than the first day of a
calendar month, then the twelve month period following the Anniversary Date, and
each anniversary thereof. The first Lease Year shall also include the period
from the Commencement Date to the first Anniversary Date.
3.2 Commencement Date
The Commencement Date shall be the date on which possession of the Leased
Premises is delivered to Tenant. Possession of the Premises shall be deemed
delivered to the Tenant on the date on which both the Landlord receives a
temporary Certificate of Occupancy and the Premises are substantially completed
with the remaining work to be done on the Premises not interfering with Tenant's
use.
Promptly following the Commencement Date, such Date shall be confirmed by
the parties in a written memorandum. However, the failure of one party to
acknowledge the Commencement Date shall not affect any obligations of either
party hereunder.
- 2 -
8
SECTION IV
Annual Rent
4.1 Obligation to Pay Rent
The rent payable under this Lease shall consist of Annual Rent. The Tenant
shall pay Annual Rent to the Landlord in the amounts specified in this Lease, in
advance, on the first day of each calendar month during the Term hereof. The
Tenant shall pay Additional Rent in the manner described in Section V. Except as
otherwise provided, all rent shall be paid without any set off or deduction
whatsoever at the address of the Landlord given above or at such other place as
Landlord may designate from time to time in writing.
4.2 Annual Rent
The Annual Rent for Lease Year One of the term of this Lease shall be One
Hundred Fifty Thousand Six Hundred Sixty-Six and 67/100 ($150,666.67) Dollars
payable in eight monthly installments of Eighteen Thousand Eight Hundred
Thirty-Three and 33/100 ($18,833.33) Dollars, beginning on the first day of the
fifth month following the first Anniversary Date. The Annual Rent for Lease Year
Two of the term of this Lease shall be Two Hundred Twenty Six Thousand and
No/100 ($226,000.00) Dollars payable in twelve monthly installments of
$18,833.33 beginning on the second Anniversary Date. The Annual Rent for Lease
Years Three through Five shall be Two Hundred Thirty Eight Thousand and No/100
($238,000.00) payable in monthly installments of $19,833.33 beginning on the
third Anniversary Date.
- 3 -
9
4.3 Option to Renew
Provided Tenant is not then in default under the terms of this Lease, on
or before six months prior to the expiration of the original term of the Lease,
Tenant may elect, in writing, to extend the term of the Lease for an additional
five (5) year period. The Annual Rent for this additional five (5) year term
shall be $270,350.00 (Two Hundred Seventy Thousand Three Hundred Fifty Dollars)
or $22,529.16 per month.
Provided Tenant is not then in default under the terms of this Lease, on
or before six months prior to the expiration of this first five year extension,
Tenant may elect, in writing, to extend the term of this Lease for a second five
(5) year period. The Annual Rent for this second five year term shall be
$313,400.00 (Three Hundred Thirteen Thousand Four Hundred Dollars) or $26,116.67
per month.
Notwithstanding the above, Landlord shall have the right, in Landlord's
sole discretion, to revoke an elected extension of the term of this Lease by
Tenant if Tenant is in default under the terms of this Lease at the time the
extended term is scheduled to commence.
4.4 Annual Rent Net to Landlord
Except for Landlord's obligations as set forth hereunder, Landlord and
Tenant intend that the Annual Rent due hereunder, together with any adjustments
during the term of this Lease, shall be absolutely net of all costs, expenses,
taxes (real and personal) and charges of every kind and nature whatsoever
relating to the ownership, occupancy or use of the Premises so
- 4 -
10
that the rent together with any adjustments, constitute the minimum income
realized by Landlord from the leasing of the Premises.
SECTION V
Additional Rent; Late Charges; Security Deposit
5.1 Additional Rent
"Additional Rent" means all of the Expenses (as defined in
Section VI) attributable to the Leased Premises.
5.2 Method of Payment
The Tenant shall pay Additional Rent, in addition to the Annual Rent, by
paying all Expenses (as defined in Section VI), in full, when due and before any
interest and/or penalty accrues, directly to the appropriate taxing authority or
supplier provided that if the appropriate taxing authority or Supplier permits,
the Expense may be paid in installments.
5.3 Late Charges
Any rent or other sums, if any, payable by Tenant to Landlord under this
Lease which are not paid within ten (10) days after they are due, and any rent
or other sums received and accepted by Landlord more than ten days after they
are due, will be subject to interest at a per annum rate of three (3%) percent
above the then prevailing prime rate of interest charged by the National Bank of
Detroit. Such late charges will be due and payable as additional rent on or
before the next date on which rent is due.
5.4 Security Deposit
- 5 -
11
Landlord hereby acknowledges the receipt of Thirty-Seven Thousand Six
Hundred Sixty-Six and 67/100 ($37,666.67) Dollars as security for the faithful
performance by Tenant of all of the Terms and conditions upon Tenant's part
under this Lease. In the event Tenant defaults in any of the terms and
conditions of this Lease, Landlord shall have the right (but not the obligation)
to apply any part of the security deposit to cure any such default, including
damages or deficiency in the reletting of the Leased Premises. In the event
Landlord so applies the security deposit, Tenant shall upon demand immediately
deposit with Landlord an amount sufficient to fund the security deposit in the
amount required hereunder. In the event Tenant fully complies with all the terms
and conditions of this Lease, the security deposit, or balance thereof, shall be
returned to Tenant without interest upon the termination of this Lease and
surrender of possession of the Leased Premises to Landlord. Landlord shall be
obligated to keep the security deposit as a separate fund and may not co-mingle
such with Landlord's funds. Landlord shall maintain separate accounting records
for such deposit.
In the event of the sale of the Leased Premises or transfer of the
Landlord's rights hereunder, Landlord shall have the right to transfer the
security deposit to the vendee or transferee subject to the obligations of the
above paragraph. In such event, Landlord shall be considered released by Tenant
from all liability for the return of the security deposit and Tenant shall seek
recovery of the security deposit directly from such vendee or transferee. This
provision shall apply to each and every such
- 6 -
12
transfer of the security deposit provided Tenant is given written notice of such
transfer. The Tenant shall not pledge, mortgage, assign or encumber the security
deposit without the prior written consent of Landlord and any such attempt shall
be void. In the absence of satisfactory evidence to Landlord of the assignment
of the right to receive the security deposit, or balance thereof, Landlord may
return the security deposit to the original Tenant without liability.
SECTION VI
Expenses, Taxes, Utilities, Insurance and Maintenance
6.1 Definition of Expenses
"Expenses" are those costs attributable in whole or in part to the Leased
Premises which are to be paid by Tenant.
"Expenses" as used in this Lease shall include:
a. Real Estate Taxes, as defined in Section 6.2;
b. Insurance Premiums, as defined in Section 6.3;
c. Utility Costs, as defined in Section 6.4.
6.2 Definition of "Real Estate Taxes"
"Real Estate Taxes" (or "Taxes") shall mean all property taxes (whether
real or personal), assessments made after the Commencement Date (general or
special), and water and sewer connection or tap-in charges for connections and
tap-ins made after the Commencement Date, and all other governmental impositions
(including without limitation any tax imposed with
- 7 -
13
respect to the parking areas or number of parking spaces including in the
Premises) which may be levied during the term of this Lease upon the Land and
Building (or any part thereof) comprising the Leased Premises. In the event such
taxes are eliminated or reduced by any federal, state or municipal body or
governmental agency having jurisdiction thereof, and another tax or assessment
is imposed by way of substitution for (or in addition thereto) all or any part
of such Taxes, then such substituted (or additional) tax or assessment shall be
included as Taxes under this Lease. Where Special Assessments are spread in
installments over a period of years, Tenant shall be liable only for
installments accruing during the Term of the Lease. Landlord shall have no
obligation to contest the amount of the Taxes.
For the purpose of calculating Additional Rent, Taxes shall be
attributable to the Lease Year in which they first become due and payable.
6.3 Definition of "Insurance Premiums"
"Insurance Premiums" shall mean the premiums necessary to
obtain and maintain the policies described in Section VII.
6.4 Utility Costs
"Utility Costs" shall include all charges made for the use
of gas, heat, air conditioning, steam, electricity, water and sewer in
connection with the Leased Premises during the term of this Lease but shall not
include the costs of transmitting or otherwise transporting the same to the
demised premises.
- 8 -
14
SECTION VII
Insurance
7.1 Maintenance of Insurance
Tenant at its sole expense, will obtain and maintain at all times until
termination of this Lease and surrender of the Premises to Landlord, a primary
policy of Liability Insurance as provided under this Section VII. Landlord will
provide Hazard Insurance for the Premises under Landlord's blanket insurance
policy and Tenant shall reimburse Landlord for the Tenant's pro rata share of
the cost of such insurance.
7.2 Liability Insurance
The Liability coverage under the primary policy will name Landlord and
Landlord's mortgagee as additional insured parties, and will provide
comprehensive general public liability insurance including blanket contractual
coverage against claims for or arising out of bodily injury, death or property
damage, occurring in, on or about the Premises or property in, on or about the
streets, sidewalks or properties adjacent to the Premises. The limits of
coverage will be, initially, if dual limits are provided, not less than Three
Million Dollars ($3,000,000.00) with respect to injury or death of a single
person, not less than Three Million ($3,000,000.00) with respect to any one
occurrence and not less than Three Million Dollars ($3,000,000.00) with respect
to any one occurrence of property damage, or, in the alternative, a single limit
policy in the amount of Three Million Dollars ($3,000,000.00), and thereafter in
such reasonably appropriate increased amounts as may be determined by Landlord
or
- 9 -
15
Landlord's mortgagee; provided, however, that the amount of coverage will not be
increased more frequently than at one (1) year intervals.
7.3 Hazard Insurance
The blanket policy will insure the Building and Improvements as defined in
Section 1.1 hereof (but not any personal property, fixtures or equipment of
Tenant) for full replacement cost against loss or damage by fire or other
casualty, with standard extended risk coverage, vandalism, malicious mischief,
and sprinkler leakage, and all other risks embraced by "All Risks" insurance
coverage. The named insureds will be Landlord and Landlord's mortgagee, only.
The amount of said insurance shall be $1,400,000.00 in Lease Year One, which
amount shall be increased by eight (8) percent per annum in each succeeding
year.
7.4 Acceptable Insurers
The insurance policy or policies to be provided by Tenant or Landlord
hereunder shall be issued by an insurance company or companies having an A. M.
Best Company rating of not less than "A". Each policy procured under this
Section VII must provide for at least thirty (30) days written notice to the
other Party of any cancellation. At either Party's option, either certificates
of insurance or the original policy or policies will be delivered to the
requesting Party prior to the effective date thereof, together with receipts
evidencing payment of the premiums thereof. Certificates of renewal for such
policies will be delivered to all parties at least thirty (30) days prior to the
expiration dates thereof. The insurance provided by Tenant
- 10 -
16
under this Section VII may be in the form of a blanket insurance policy covering
other properties as well as the Premises; provided, however, that any such
policy or policies of blanket insurance (i) must specify therein, or Tenant must
furnish Landlord with a written statement from the insurers under such policy or
policies specifying, the amount of the total insurance allocated to the
Premises, which amounts will not be less than the amounts required by
Subsections 7.1, and 7.2 hereof, and (ii) such amounts so specified must be
sufficient to prevent Landlord or Landlord's mortgagee from becoming a
co-insurer within the terms of the applicable policy or policies, and provided
further, however, that any such policy or policies of blanket insurance must, as
to the Premises, otherwise comply as to endorsements and coverage with the other
provisions of this Section VII.
7.5 Other Insurance
Except with respect to the insurance required in Subsection 7.2, and
insurance which may be taken out by Tenant covering loss or casualty to personal
property, fixtures, or equipment of Tenant, neither Landlord nor Tenant may take
out separate insurance concurrent in form or contributing in the event of loss
with that required under this Section VII unless Landlord and Tenant are
included therein as the insured payable as provided in this Lease. Each party
will notify the other immediately of the placing of any such separate insurance.
7.6 Failure to Provide
If Tenant fails to provide all or any of the insurance required by this
Section VII, or subsequently fails to maintain
- 11 -
17
such insurance in accordance with the requirements of this Section, Landlord may
(but will not be required to) procure or renew such insurance, and any amounts
paid by Landlord for such insurance will be Additional Rent due and payable on
or before the next date on which rent is due, together with late charges as
provided in Section V. If Landlord fails to provide all or any of the insurance
required by this Section VII, or subsequently fails to maintain such insurance
in accordance with the requirements of this Section, Tenant may procure or renew
such insurance and may offset the costs of such insurance against Annual Rent.
7.7 Insurance Proceeds
In the event of loss under any policy or policies provided by Tenant to
Landlord under this Section VII, other than the liability policy required by
Subsection 7.2, the insurance proceeds will be payable to Landlord or Landlord's
mortgagee; thereafter, such proceeds will be used for the expense of repairing
or rebuilding the Improvements which have been damaged or destroyed if Landlord
and its mortgagee are satisfied that the amount of insurance proceeds are and
will be at all times sufficient to pay for the completion of the repairs or
rebuilding.
- 12 -
18
SECTION VIII
Maintenance and Repair
8.1 Maintenance and Repair
Except as otherwise provided, the Tenant will, at its own expense (as
limited by a certain "Maintenance and Easements Agreement" dated the 5th day of
December, 1986 by and between ▇▇▇▇▇▇▇▇▇▇-Limp Company and RV Development Co.),
keep the Premises in good repair and at the expiration of the term yield and
deliver up the same in like condition as when taken, reasonable use and wear
thereof and damage by the elements excepted. The Tenant shall not make any
alterations, additions or improvements to said premises without the Landlord's
written consent, which shall not be unreasonably withheld, and all alterations,
additions or improvements made by either of the parties shall be the property of
the Landlord, and shall remain upon and be surrendered, without molestation or
injury.
Landlord, at its expense, shall keep the roof and exterior walls
(including such walls as are common with another building) in good repair during
the term of this Lease (including extensions). Such repair shall be made within
a reasonable time after written notice of the need for repair to Landlord.
Landlord, at its expense, shall keep all other Improvements (other than those
mechanical in nature) in good repair for a period of one year from the
Commencement Date. All Improvements that are mechanical in nature shall be kept
in good repair by Landlord, at its expense, for a period of two years from the
Commencement Date.
- 13 -
19
SECTION IX
Indemnification
9.1 Indemnification
Tenant shall indemnify and hold Landlord, its licensees, servants, agents,
employees and contractors harmless from any and all loss, damage, claim of
damage, liability or expense, including without limitation reasonable attorney
fees (collectively "Damages"), to any person or property in or on the Leased
Premises arising directly or indirectly out of or in connection with (a) the use
of the Premises by Tenant, its agents, employees, contractors, licensees or
invitees, or (b) the failure of Tenant to comply with any provision of this
Lease, or (c) the condition of the Premises, except by or attributable to the
act or omission of Landlord, its agents, employees, contractors, licensees and
invites. Landlord shall indemnify and hold Tenant, its licensees, servants,
agents, employees and contractors harmless from any and all loss, damage, claim
of damage, liability or expense, including, without limitation, reasonable
attorney fees (collectively "Damages"), to any person or property in or on the
Leased Premises arising directly or indirectly from Landlord's failure to comply
with any provisions of the Lease or for damages caused by acts or omissions of
Landlord, its employees, agents, licensees, servants or contractors. This
Section shall survive any termination of this Lease, except if this Section is
specifically terminated by both parties in writing.
- 14 -
20
SECTION X
Curing Default
10.1 Landlord May Cure Tenant's Default
If Tenant defaults in the performance of any provision of
this Lease, Landlord shall have the right (but not the obligation) in addition
to any and all other rights and remedies hereunder, to cure such default for the
account of Tenant, upon 30 days prior written notice to Tenant, except that for
a default of rent Landlord shall provide 10 days prior written notice, and
excepting further that in an emergency, or if such default would jeopardize or
leave uninsured the Leased Premises, or result in the failure of public
liability or property damage insurance to be in effect, or if the nature of such
default is such that Landlord would risk further harm by waiting for Tenant to
cure (e.g., a toxic spill), Landlord may cure such default without prior notice
to Tenant. Upon receipt of notice of such cure and demand for payment, Tenant
shall repay any payment or expenditure made by Landlord with the next monthly
rent payment together with interest at the greater of a per annum rate of 3%
above the then prevailing prime rate of interest charged by National Bank of
Detroit, or 10% per annum, from the date of the payment or expenditure by
Landlord until the date of repayment by Tenant.
Landlord's failure to exercise its right to cure such default(s) shall not
be deemed a breach of the Lease nor a waiver or release of any Tenant's
obligations under the Lease.
- 15 -
21
SECTION XI
Alterations and Mechanics Liens
11.1 Alterations by Tenant.
Tenant at its own expense may make non-structural alterations, additions
or improvements in or to the Leased Premises. Tenant shall not make any
alterations, additions or improvements in or to the Leased Premises without
Landlord's prior written consent which shall not be unreasonably withheld.
Tenant shall, before making any alterations, additions, installments or
improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals and certificates to Landlord, and Tenant agrees to
carry, and to cause Tenant's contractor and subcontractors to carry such
worker's compensation, general liability, personal and property damage insurance
as Landlord may reasonably require.
11.2 Ownership Upon Expiration of Lease.
All fixtures and all paneling, partitions, railing and like
installations, alterations, additions and improvements, installed in the Leased
Premises by either Tenant or Landlord on Tenant's behalf, shall become the
property of Landlord and shall remain upon and be surrendered with the Premises
upon the termination of the Lease. Nothing in this Section shall be construed to
give Landlord title to or to prevent Tenant's removal of trade fixtures,
moveable office furniture and equipment, but upon
- 16 -
22
removal of any such equipment and fixtures from the Premises, Tenant shall
immediately and at it's expense, repair and restore the Premises to the
condition existing prior to installation (subject to ordinary wear and tear) and
repair any damage to the Premises or the Building due to such removal. All
property that was permitted to be removed by Tenant at the end of the term but
which remains in the Premises for 60 days after Tenant vacates the Premises
shall be deemed abandoned and may, at the election of Landlord, either be
retained as Landlord's property or may be removed from the Premises by Landlord
provided, however, if Tenant is delayed or hindered in the removal of the
property permitted under this Section for reasons beyond Tenant's control then
Tenant's removal of its property shall be extended for up to twelve (12) months
at the Annual Rent described in Section 19.2 hereof.
11.3 Mechanics Liens.
Tenant shall (a) pay before delinquency all costs and expenses of work
done or caused to be done by Tenant in the Leased Premises; (b) keep the title
to the Premises and every part thereof free and clear of any lien or encumbrance
in respect of such work; and (c) indemnify and hold harmless Landlord against
any claim, loss, cost demand (including reasonable legal fees), whether in
respect of liens or otherwise, arising out of the supply of material, services
of labor for such work. Tenant shall immediately notify Landlord of any lien,
claim of lien or other action of which Tenant has or reasonably should have
knowledge and which affects the title to the Premises or any part
- 17 -
23
thereof, and shall cause the same to be removed within 15 days (or such
additional time as Landlord may consent to in writing), either by paying and
discharging such lien or by posting a bond or such other security as may be
reasonably satisfactory to Landlord. If Tenant shall fail to remove same within
said time period after written notice to Tenant, Landlord may take such action
as Landlord deems necessary to remove the same and the entire cost thereof shall
be immediately due and payable by Tenant to Landlord.
SECTION XII
Casualty Damage
12.1 Repairs to Premises.
It is understood and agreed that if the Premises are damaged or destroyed
in whole or in part by fire or other casualty during the Term, the Landlord, if
there are sufficient insurance proceeds, will repair and restore the same to
good tenantable condition with reasonable dispatch. The rent and all other
charges which are the obligation of Tenant under this Lease will ▇▇▇▇▇, if and
to the extent covered by loss of rents insurance proceeds, for the period the
Premises are untenantable.
12.2 Extension of Term.
Tenant will have the option, exercisable by written notice to Landlord
upon restoration of the Premises, to extend the original Term of this Lease (or
the extension of the Term during which the damage or destruction occurred, as
the case may be) for a period equal to the period, if any, during which Tenant
was
- 18 -
24
deprived of the use of all or a significant portion of the Premises by reason of
such damage or destruction. Tenant's option must be exercised within ninety (90)
days following completion of the work of restoration and repair.
12.3 Landlord's Option to Terminate
Notwithstanding anything to the contrary contained in this Lease, in the
event the Building is damaged or destroyed by fire or other casualty during the
term hereof, Landlord shall have the right to terminate this Lease upon the
occurrence of any of the following and upon written notice given to Tenant
within thirty (30) days after the date of such occurrence:
a. If less than 50% in area of the Building has been damaged or
destroyed, but in Landlord's opinion repairs cannot be completed
within 180 days after the date of such occurrence; or
b. If more than 50% of the Building has been damaged or destroyed; or
c. If the available insurance proceeds are insufficient to complete the
necessary repair and restoration; or
d. If the damage or destruction occurs within the last year of the
original term of this Lease or of any extension of such term;
provided, however, that the Lease may not be terminated under this
Subsection if Tenant's option, if any, to further extend the term of
the Lease has been exercised before such occurrence. Termination of
the Lease pursuant to this Section shall
- 19 -
25
be effective thirty (30) days after Tenant receives from Landlord
the written notice required above.
Section 12.4 Partial Damage to Premises
Notwithstanding anything to the contrary contained in this
Lease, in the event of partial damage to the premises, Landlord agrees, upon
notification, to use its best efforts promptly to repair such damage. Tenant
agrees to report to the best of its knowledge the extent of any partial damage
to Landlord. Landlord shall be required, within ten (10) days of receipt of
Tenant's notice, to give the time required for repair. Within ten (10) days of
receiving Landlord's report and notification to repair, Tenant at its option may
terminate this Lease as of the date of partial damage if the Premises cannot be
restored within one hundred eight (180) days of the casualty. Tenant shall also
have the option to terminate or to extend Landlord's time for completion if at
the end of such one hundred eight (180) day period the restoration has not been
completed. Notwithstanding the foregoing, Tenant shall not have such right of
termination if the partial damage resulted from the actions or negligence of
Tenant. In the event Tenant does not elect to terminate as provided hereunder,
Landlord shall repair the partial damages rapidly as is feasible by using its
best efforts.
12.5 Waiver of Subrogation
Landlord shall cause each insurance policy carried by Landlord insuring
the Premises against loss by fire, casualty and other causes covered by standard
extended coverage, and Tenant shall cause each insurance policy carried by
Tenant and insuring
- 20 -
26
the Premises and its fixtures and contents against loss by fire and causes
covered by standard extended coverage, to be written in a manner so as to
provide that the Insurance Company waives all right of recovery by way of
subrogation against Landlord or Tenant in connection with any loss or damage
covered by any such policies. Neither party shall be liable to the other for any
loss or damage caused by fire or any of the risks enumerated in standard
extended coverage insurance, provided such insurance was obtainable at the time
of such loss or damage. If the release of either Landlord or Tenant, as set
forth in the second sentence of this paragraph, shall contravene any law with
respect to exculpatory agreements, the liability of the party in question shall
be deemed not released but shall be deemed secondary to the latter's insurance.
SECTION XIII
Use and Occupancy
13.1 Use of Premises
Tenant shall use and occupy the Leased Premises during the term of this
Lease for office, warehousing, and light assembly use only and for no other
purpose without the prior written consent of Landlord (which shall not be
unreasonably withheld).
13.2 Surrender of Premises
Except as otherwise provided in this Lease, during the term hereof Tenant
shall keep the Leased Premises and every part thereof in good repair and
condition at its sole cost and expense. At the expiration of the term (or the
earlier
- 21 -
27
termination of this Lease), Tenant shall surrender the Premises broom clean and
in substantially the same condition and repair as existed at the time Tenant
took possession, reasonable wear and tear excepted.
13.3 Compliance with Laws
Tenant shall not do, permit or suffer any act or thing to be done: which
is injurious to the Land, the Building, or the Premises; which is a nuisance;
contrary to any laws, regulations, rulings or guidelines, whether local, State
or Federal; in violation of the certificate of occupancy issued for the
Building; which would result in the cancellation of, or any increase in premiums
for, insurance maintained by Landlord with respect to the Premises or the Land
or the Building; or, which would violate the terms of any deed restrictions
affecting the Premises. Further, Tenant shall not keep, use, sell or offer for
sale in or upon the Premises any article which may be prohibited by any then
available standard forms of fire insurance policies with extended coverage.
At all times during the term of this Lease, Tenant shall give prompt
notice to Landlord of any notice Tenant receives of any violation of any law or
requirement of a governmental authority affecting the Premises or the Building,
and, at its sole cost and expense, shall comply with all laws and requirements
of governmental authorities, including any violation order or duty imposed upon
Landlord or Tenant, arising from or relating to (1) Tenant's use of the
Premises; (2) the manner or conduct of Tenant's business of operation of its
installations,
- 22 -
28
equipment or other property therein; (3) any cause or condition created by or at
the insistence of Tenant; or (4) breach of any Tenant's obligations hereunder.
SECTION XIV
Eminent Domain
14.1 Total Taking
If the whole of the Leased Premises is taken by any public authority under
the power of eminent domain, then this Lease shall terminate on the date
possession of the premises is delivered to such public authority. Annual Rent
and Additional Rent shall be paid to that date and prorated accordingly.
14.2 Landlord's Option to Terminate
Notwithstanding anything to the contrary contained in this Lease, if part
of the Leased Premises is taken by any public authority under the power of
eminent domain, Landlord shall have the right to terminate this Lease upon the
occurrence of any of the following and upon written notice given to Tenant not
later than 60 days after condemnation proceedings against the Land and/or
Building (or, if such proceedings are not commenced, not later than 14 days
before Landlord delivers possession of part so taken by such public authority):
a. If the taking of part of the Premises significantly and adversely
affects Tenant's use of the Premises; or
b. If restoration of the remainder of the Premises cannot in Landlord's
opinion be completed within 180 days
- 23 -
29
after the date possession is required by the public authority; or
c. If Landlord's Condemnation Award (defined in Section 14.4) is
insufficient to complete the necessary restoration; or
d. If the taking (i.e., the date possession is required by the public
authority) occurs within the last 60 days of the original term of
this Lease or any extension of such term, provided, however, that
the Lease may not be terminated under this Subsection if Tenant's
option, if any, to further extend the term of this Lease is
exercised within 10 days after Tenant receives from Landlord the
termination notice described above.
Termination of the Lease pursuant to this Section shall be effective as of the
later of the date possession is required by the public authority or 60 days
after Tenant receives the termination notice described above. Annual Rent and
Additional Rent shall be paid to the date of termination and prorated
accordingly.
14.3 Repair of Premises
If this Lease is not terminated following such a condemnation or taking,
Landlord, as soon as reasonably practicable after such condemnation or taking
and the determination and payment of Landlord's award on account thereof, shall
expend as much as may be necessary of the net amount which is awarded to
Landlord and released by Landlords's mortgagee, if any, in restoring, to the
extent originally constructed by
- 24 -
30
Landlord (consistent, however, with zoning laws and building codes then in
existence), so much of the Building as was originally constructed by Landlord to
an architectural unit as nearly like its condition prior to such taking as shall
be practicable. Should the net amount so awarded to Landlord be insufficient to
cover the cost of restoring the Building, in the reasonable estimate of
Landlord, Landlord may, but shall have no obligation to, supply the amount of
such insufficiency and restore the Building to such an architectural unit, with
all reasonable diligence, or Landlord may terminate this Lease by giving notice
to Tenant not later than a reasonable time after Landlord has determined the
estimate net amount which may be awaarded to Landlord and the estimated cost of
such restoration.
14.4 Rights to Award
All damages awarded for such taking shall belong to and be the property of
the Landlord, whether such damages shall be awarded as compensation for
diminution in value to the leasehold or to the fee of the Leased Premises and
any improvements to the Premises whether made by Landlord or Tenant. The amount
received by Landlord which is allocable to the Leased Premises shall be
"Landlord's Condemnation Award". However, Tenant shall be entitled to any award
for removal and relocation expenses, Tenant's loss of business, and fixtures
paid for by Tenant. Landlord and Tenant shall each seek their own award and pay
their own expenses in connection therewith.
14.5 Adjustment of Rent
- 25 -
31
If this Lease is not terminated pursuant to Sections 14.1 or 14.2, the
minimum net rental payable by Tenant shall be reduced in proportion to the
reduction in net rentable area of the Building by reason of the condemnation or
taking.
SECTION XV
Assignment, Subletting and Mortgage Provisions
15.1 Assignment and Subletting by Tenant
Tenant shall not assign or in any manner transfer this Lease or any estate
or interest therein, hypothecate or mortgage the same or sublet the Leased
Premises or any part thereof or permit the use of the Premises by any other
party without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Any assignment, transfer, hypothecation, mortgage or
subletting without such consent shall give Landlord the right to terminate this
Lease and re-enter and repossess the Premises. However, consent by Landlord to
one or more assignments of this Lease or to one or more sublettings of the
Premises shall not be deemed a consent to any subsequent assignment, subletting,
occupation or use by any other person, and the acceptance of rent from an
assignee, subtenant or occupant shall not constitute a release of Tenant from
the oligations and covenants in this Lease.
A transfer of majority control of Tenant, including, without being limited
to, a transfer of a majority stock or partnership interest or the merger,
consolidation, sale of all or substantially all of the other assets of Tenant or
other
- 26 -
32
corporate or other reorganization of Tenant (whether or not Tenant shall be the
surviving entity), shall be deemed a transfer under this Lease and shall be
subject to all the provisions of this Article.
15.2 Landlord's Mortgage Provisions
15.2.1 Landlord's Rights to Subordinate Lease
Landlord reserves the right to subject and subordinate this Lease, at all
times, to the lien of any mortgage or mortgages now or hereafter placed upon the
Leased Premises, provided however that Tenant's right of possession will not be
disturbed by any such mortgagee in connection with any mortgage foreclosure
proceedings so long as Tenant performs its obligations set forth in the Lease.
In the event Landlord exercises its rights hereunder, Landlord shall provide
Tenant with a Subordination, Non-Disturbance and Attornment Agreement in form
and substance satisfactory to Landlord, which shall provide, inter alia, (i)
that this Lease is subordinate to the lien of any mortgage or mortgages upon the
Leased Premises, (ii) that the Tenant's right of possession will not be
disturbed by the mortgagee in connection with any mortgage foreclosure
proceedings so long as Tenant performs its obligations set forth in the Lease,
and (iii) that the Tenant shall attorn to any foreclosing mortgagee or purchaser
at the foreclosure sale. Tenant agrees to execute such Subordination,
Non-Disturbance and Attornment Agreement and hereby irrevocably appoints
Landlord as Tenant's attorney-in-fact to execute such Agreement.
15.2.2 Estoppel Certificate
- 27 -
33
Tenant shall at anytime upon the request of Landlord, execute and deliver
in recordable form and in substance satisfactory to Landlord, an estoppel
certificate certifying: the date Tenant accepted occupancy of the Lease
Premises; the date to which rent has been paid; the amount of any security
deposit; that this Lease is in full force and effect and has not been modified
or amended (or if modified or amended, describing the same) and, to the best of
Tenant's knowledge and belief and without due diligence investigation, that
there are no defenses or offsets thereto or defaults of Landlord under this
Lease (or if any be claimed, describing the same); and such other matters as
Landlord may reasonably request. If Tenant fails to deliver the estoppel
certificate within 20 days of the demand therefore, the accuracy of the proposed
certificate will be deemed conclusively confirmed.
15.2.3 Changes to Lease Required by Lender
This Lease shall be modified (as to non-economic terms only)
at the request of any institutional first mortgage lender furnishing financing
to Landlord for the Lease Premises. Only those modifications shall be permitted
by Section 15.2.3 which do not adversely affect the Tenant's ability to use the
Premises or otherwise impose additional costs or business hinderances upon the
Tenant.
- 28 -
34
SECTION XVI
Default and Remedies
16.1 Definition of Event of Default
Any of the following occurrences shall constitute an Event of Default:
a. Tenant fails to pay any installment of Annual Rent or Additional
Rent or any portion of either of them when due and payable, and
Tenants fails to pay same for a period of ten (10) days after
receipt of written notice from Landlord that payment is due.
b. Landlord declares an Event of Default as permitted in Section XVII,
entitled "Bankruptcy of Insolvency."
c. Tenant violates or fails to comply with or is in default in the
performance of any other provision of this Lease for a period of 30
days after written notice from Landlord of such violation,
noncompliance, or default, provided that in the case of a default
which cannot with due diligence be cured within a period of 30 days,
Tenant shall have such additional time to cure same as may
reasonably be necessary so long as Tenant commences curing such
default within the thirty (30) day period and proceeds promptly,
effectively, continuously and with due diligence to cure such
default after receipt of said notice.
16.2 Remedies
Upon the occurrence of an Event of Default, Landlord may (but will not be
required to) declare this Lease forfeited and
- 29 -
35
the Term ended, or re-enter the Premises, or may exercise all other remedies
available under Michigan law. Landlord will not be liable for damages to person
or property by reason of any legitimate re-entry or forfeiture, and Landlord
will be aided and assisted by Tenant, its agents, representatives and employees.
Tenant, by the execution of this Lease, waives notice of re-entry by Landlord.
In the event of re-entry by Landlord without declaration of forfeiture, the
liability of Tenant for the rent provided herein will not be relinquished or
extinguished for the balance of the Term, and any rentals prepaid may be
retained by Landlord and applied against the costs of re-entry, or as liquidated
damages, or both. Tenant will pay, in addition to the rentals and other sums
agreed to be paid hereunder, reasonable attorneys' fees, costs and expenses in
any suit or action instituted by or involving Landlord to enforce the provisions
of, or the collection of the rentals due Landlord under this Lease, including
any proceeding under the Federal Bankruptcy Code.
In the event of declaration of forfeiture at or after the time of
re-entry, Landlord may re-lease the Premises or any portion(s) of the Premises
for a term or terms and at a rent which may be less than or exceed the balance
of the Term of and the rent reserved under this Lease provided Landlord uses its
best efforts to relet said Premises and ▇▇▇▇▇ said damages. In such event Tenant
will pay to Landlord as liquidated damages for Tenant's default any deficiency
between the total rent reserved and the net amount, if any, of the rents
collected on account of the lease or leases of the Premises which otherwise
would have
- 30 -
36
constituted the balance of the term of this Lease. In computing such liquidated
damages, there will be added to the deficiency any reasonable expenses which
Landlord may incur in connection with re-leasing, such as legal expenses,
attorneys' fees, brokerage fees and expenses, advertising and for keeping
premises in good order or for preparing the Premises for re-leasing. Any such
liquidated damages will be paid in monthly installments by Tenant on the date on
which rent is payable and any suit brought to collect the deficiency for any
month will not prejudice Landlord's right to collect the deficiency for any
subsequent month by a similar proceeding.
16.3 Cumulative Remedies
Each and every right, remedy and benefit provided by this Lease to
Landlord shall be cumulataive and shall not be exclusive of any other right,
remedy or benefit allowed by law. These remedies may be exercised jointly or
severally without constituting an election of remedies.
16.4 Waiver
One or more waiver by Landlord of any term and condition hereunder or
default by Tenant hereunder shall not be construed as a waiver of such term and
condition or default in the future or any subsequent default for the same cause.
Any consent or approval given by Landlord requiring such consent or approval
shall not constitute consent or approval to any subsequent similar act by
Tenant.
- 31 -
37
SECTION XVII
Bankruptcy or Insolvency
17.1 Landlord's Option to Terminate Upon Insolvency of Tenant
If the estate of Tenant created hereby shall be taken in execution or by
other process of law, or if Tenant shall be adjudicated insolvent pursuant to
the provisions of any present or future insolvency law under state law, or if
any proceedings are filed by or against the Tenant under the Bankruptcy Code or
any similar provisions of any future federal bankruptcy laws, or if Tenant shall
cease doing business as a going concern or generally not pay its debts as they
become due, or if a receiver or trustee of the property of Tenant shall be
appointed under state law by reason of Tenant's insolvency or inability to pay
its debts as they become due or otherwise, or if any assignment shall be made of
Tenant's property for the benefit of creditors under state law, then and in such
event, Landlord may, at its option, terminate this Lease and all rights of
Tenant hereunder declaring an Event of Default under Section XVI.
17.2. Tenant's Interest Not Transferable by Virtue of State Insolvency Law
Without Landlord's Consent
Neither Tenant's interest in the Lease, nor any lesser interest of Tenant
herein, nor any estate of Tenant hereby created shall pass to any trustee,
receiver, assignee for the benefit of creditors or other person or entity or
otherwise by operation of law under the laws of any state having jurisdiction of
the person or property of Tenant unless Landlord shall consent
- 32 -
38
to such transfer in writing. No acceptance by Landlord of rent or any other
payment from any such trustee, receiver, assignee, person or other entity shall
be deemed to have waived nor shall it waive the requirement of Landlord's
consent or the right of Landlord to terminate this Lease in the absence of such
consent to any transfer of Tenant's interest in this Lease.
17.3 Time for Assumption or Rejection of Lease in Tenant's Bankruptcy
In the event that either a voluntary petition or involuntary petition for
reorganization or liquidation or adjustment of debts is filed either by or
against Tenant under Chapter 7, 11, or 13 of the Bankruptcy Code, The Tenant, as
debtor in possession, or the bankruptcy trustee, must elect to assume or reject
this Lease within 60 days after the date of filing of the petition. If the
Tenant, trustee or debtor in possession shall elect to assume this Lease,
whether for the purpose of assignment or otherwise, such election and assignment
may only be made if all of the terms and conditions of Section 17.4 hereof are
satisfied. If the Tenant, trustee or debtor in possession shall fail to elect or
assume this Lease within 60 days after the date of filing the bankruptcy
petition, this Lease shall be deemed to have been rejected. In the event of such
rejection, Landlord shall thereupon be immediately entitled to possession of the
Leased Premises without further obligation to the Tenant, trustee or debtor in
possession and this Lease shall be cancelled, but Landlord's right to be
compensated for damages in such proceeding shall survive.
- 33 -
39
17.4 Conditions to the Assumption of Lease in Bankruptcy Proceedings.
In the event that a voluntary or involuntary bankruptcy petition is filed
by or against Tenant, and Tenant, trustee or debtor in possession elects to
assume the lease in accordance with the provisions of the preceding paragraph,
such assumption shall only be effective if each of the following conditions,
which Landlord and Tenant hereby acknowledge to be commercially reasonable in
the context of a bankruptcy proceeding of tenant, have been satisfied:
a. The Tenant, trustee or the debtor in possession has cured or has
provided Landlord adequate assurance that the Tenant, trustee or
debtor in possession will cure all monetary defaults under the Lease
within 10 days from the date of assumption of the Lease.
b. The Tenant, trustee or the debtor in possession has cured or has
provided Landlord adequate assurance that the Tenant, trustee or
debtor in possession will cure all non-monetary defaults under the
Lease within 30 days from the date of assumption of the Lease.
c. The Tenant, trustee or the debtor in possession has compensated or
had provided to Landlord adequate assurance that Landlord will be
compensated for any pecuniary loss incurred by Landlord arising from
the default of the Tenant, trustee or debtor in possession
- 34 -
40
within 10 days from the date of assumption of the Lease.
d. The Tenant, trustee or debtor in possession has provided Landlord
with adequate assurance of the future performance of each of the
Tenant's, trustee's or debtor in possession's obligations under this
Lease; provided, however, that the Tenant, trustee or debtor in
possession shall also deposit with the Landlord as security for the
timely payment of rent an amount equal to 2 months rent accuring
under this Lease.
e. The assumption of the Lease will not breach any provision in any
other lease, mortgage, financing agreement or other agreement by
which Landlord is bound relating to the premises.
17.5 Assignment of Lease by Tenant
Notwithstanding any provisions of Section XV to the
contrary, if this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code:
a. any and all monies or other considerations, payable or otherwise, to
be delivered in connection with such assignment, shall be paid or
delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or the estate
of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property
under the preceding sentence not paid or delivered to Landlord shall
be
- 35 -
41
held in trust for the benefit of Landlord and shall be promptly paid
or delivered to Landlord; and
b. any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further
act or deed to have assumed all of the obligations arising under
this Lease on and after the date of such assignment. Any such
assignee shall upon demand execute and deliver to Landlord an
instrument confirming such assumption.
17.6 Measure of Damages
Notwithstanding anything in this Lease to the contrary, all amounts
payable by tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of Section
502 (b) (6) of the Bankruptcy Code.
SECTION XVIII
Quiet Enjoyment
18.1 Quiet Enjoyment
Landlord covenants that so long as tenant is not in default in the terms
and conditions of this Lease, Tenant may peacefully and quietfully hold and
enjoy the Leased Premises for the Term hereof without interference by Landlord
or any person claiming by, through or under Landlord.
- 36 -
42
SECTION XIV
Miscellaneous Provisions
19.1 Notice
All notices which are required or permitted under this Lease shall be
deemed delivered if made in writing, addressed to the other party at the address
given above (or such other address of which notice is given pursuant to this
paragraph), and deposited in the United States Postal Service, first class,
certified mail, return receipt requested, postage prepaid.
19.2 Holding Over
In the event that Tenant retains possession of the Leased Premises after
the expiration of the term of this Lease, then the tenancy shall continue from
month to month in the absence of a written agreement to the contrary, subject to
all of the terms and conditions hereof except Annual Rent, which shall be 150%
of the Annual Rent for the last Lease Year of the Term of the Lease.
19.3 Landlord's Access
Landlord shall have the right to enter into the Leased Premises for the
purpose of inspecting the physical condition of the Premises; provided, however,
that, except in the event of an emergency, Landlord shall enter the Premises for
such purposes only (a) upon reasonable written notice to Tenant, (b) at such
times as may be approved by Tenant, and (c) in such a manner as to cause the
minimum disruption to Tenant's employees and business activities on the
Premises.
- ▇▇ -
▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ shall have the right for a period commencing 180 days
prior to the expiration of the term of this Lease to exhibit the Leased Premises
to prospective tenants, on the same conditions listed as (a), (b) and (c) above,
and may display in or about the Leased Premises the usual and ordinary "for
lease" or "for sale" signs.
19.4 Provisions Relating to Landlord
a. The term "Landlord" as used in this Lease so far as covenants,
agreements, stipulations or obligations on the part of the Landlord
are concerned is limited to mean and include only the owner or
owners of fee title to the Premises at the time in questions, and in
the event of any transfer or transfers of the title to such fee the
Landlord herein named (and in case of any subsequent transfers or
conveyances the then grantor) will automatically be freed and
relieved from and after the date of such transfer or conveyance of
all personal liability for the performance of any covenants or
obligations on the part of the Landlord contained in this Lease
thereafter to be performed.
b. If Landlord fails to perform any provision of this Lease upon
Landlord's part to be performed, and if as a con-sequence of such
default Tenant recovers a money judgment against Landlord, such
judgment may be satisfied only out of the proceeds of sale received
upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in
- 38 -
44
the Premises and out of rents or other income from such property
receivable by Landlord and Landlord shall not be personally liable
for any deficiency.
19.5 Landlord's Representations
Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the Land, the Lease Premises, permissible uses of Leased Premises, the
rents, leases, expenses of operation or any other matter or thing affecting or
related to the Leased Premises except, as expressly set forth in the provisions
of this Leases.
19.6 Entire Agreement
All understandings and agreements heretofore made between the parties
hereto are merged in this Lease, which alone fully and completely expresses the
agreement between Landlord and Tenant, and any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect abandonment of
it, in whole or in part, or a surrender of this Lease or of the Leased Premises
or any part thereof or of any interest of Tenant therein unless such executory
agreement is in writing and signed by Landlord and Tenant.
19.7 Memorandum of Lease
Neither party shall record this Lease or any portion thereof. However,
Tenant may prepare, and Landlord will execute, a Memorandum of Lease in
substantially the form attached hereto at Exhibit C, and Tenant may record same
at Tenant's expense.
19.8 Modification; Waivers
- 39 -
45
This Lease shall not be modified or amended except by a writing signed by
Landlord and Tenant. Any consent or approval given by Landlord with respect to
any act, neglect or default by Tenant will not waive or make unnecessary
Landlord's consent or approval with respect to any later similar act, neglect or
default by Tenant.
19.9 Applicable Law; Binding Effect; Topical Headings
This Lease shall be construed and enforced in accordance
with the laws of the State of Michigan and shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Topical headings appearing in the Lease are for convenience only. They do not
define, limit or construe the contents of any paragraphs or clauses.
19.10 Force Majeure
In the event the Landlord shall be delayed or hindered in or prevented
from the performance of any act required hereunder by reason of strikes,
lock-outs, labor troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war or other
reason of a like nature beyond the reasonable control of that party, in
performing work or doing acts required under the terms of this Lease, then
performance of such act shall be extended for a period equivalent to the period
of such delay, but not to exceed twelve months.
SECTION XX
EXHIBITS TO LEASE
- 40 -
46
Exhibit A Legal Description
Exhibit B Building Plans & Specifications
Exhibit C Form of Memorandum of Lease
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the
date first written above.
WITNESS: LANDLORD:
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Properties
----------------------------
a Michigan Corporation
/s/ By: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ------------------------
/s/ Its: Partner
---------------------------- ------------------------
Dated: 12-22-88
WITNESS: TENANT:
ENERGY ELECTRIC CABLE
----------------------------
----------------------------
/s/ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ Its: President
---------------------------- ------------------------
Dated: 12-22-88
---------------------
- ▇▇ -
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇)
)ss
COUNTY OF OAKLAND)
The foregoing instrument was acknowledged before me this 22nd day of
December , 1988, by ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Properties , a
Michigan Corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Notary Public, Oakland County, MI
My Commission expires: ▇▇-▇▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇)
)▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇)
The foregoing instrument was acknowledged before me this 22nd day of
December , 1988, by ▇▇▇▇ ▇. ▇▇▇▇▇ of Energy Electric Cable, Inc., President , on
behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Notary Public, Oakland County, MI
My Commission expires: 10-23-89
- 42 -
48
EXHIBIT C
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, dated December 22, 1998 by and between
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Properties, a Michigan partnership as lessor ("Landlord"), whose
address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and Energy
Electric Cable, Inc. as lessee ("Tenant"), whose address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H
In consideration of the rents, covenants and conditions more particularly
set forth in a certain unrecorded lease between Landlord and Tenant dated as of
December 22 , 1988 ("Lease"), which Lease is incorporated herein by this
reference, Landlord and Tenant do represent as follows:
1. Landlord has leased to Tenant certain premises, consisting of land
described in Exhibit A attached hereto and the building and related improvements
to be constructed thereon, located in the City of Auburn Hills County of
Oakland, Michigan and commonly known as 270 ▇▇▇ Boulevard.
2. The term of the Lease is to commence on the date possession is
delivered to Tenant and continues for a period of 5 years, with certain optional
and contingent early termination provisions.
This Memorandum is intended solely to give Notice of the Lease and is not
a complete summary of terms and conditions thereof. Provisions in this
Memorandum shall not be used in interpreting provisions in the Lease. In the
event of conflict between this Memorandum and the Lease, the Lease shall
control.
- 1 -
49
IN WITNESS WHEREOF, the parties hereto have each caused this Memorandum of
Lease to be executed as of the day and year first above written.
WITNESSES: LANDLORD:
/s/ By: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ Its: Partner
---------------------------- -------------------------
WITNESS: TENANT:
ENERGY ELECTRIC CABLE
----------------------------
/s/ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ Its: President
---------------------------- -------------------------
STATE OF MICHIGAN)
)ss
COUNTY OF OAKLAND)
The foregoing instrument was acknowledged before me this 22nd day of
December, 1988, by ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a Michigan corporation on behalf of
the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Notary Public, Oakland County, MI
My Commission expires: ▇▇-▇▇-▇▇
- ▇ -
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇)
)ss
COUNTY OF OAKLAND)
The foregoing instrument was acknowledged before me this 22nd day of
December, 1988, by ▇▇▇▇ ▇. ▇▇▇▇▇, President of Energy Electric Cable, Inc.,
President, on behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Notary Public, Oakland County, MI
My Commission expires: 10-23-89
- 3 -