LEASE Between American Center LLC, as Landlord And as Tenant
Exhibit
10.53
Between
American
Center LLC,
as
Landlord
And
LDMI Telecommunications, Inc.,
as
Tenant
THIS
LEASE is made and entered into as of January 28, 2003, by and between
American
Center LLC,
a
Michigan Limited Liability Company (the "Landlord"), having its principal office
at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Tenant
named below who agree as follows:
SECTION
1.
BASIC LEASE PROVISIONS
1.01 The
following basic lease provisions are an integral part of this Lease and are
referred to in other Sections of this Lease.
(a) Tenant's
name and jurisdiction of formation:
LDMI
Telecommunications, Inc. a Michigan corporation
Tenant
Social Security/Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
Tenant
Standard Industrial Classification (SIC) Code Number:
4813
and 4899
(b) Tenant's
Address:
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
After
Commencement Date:
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(c) Manager's
Name REDICO
Management, Inc.
and
Address: ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(d) Project
Name:
American Center
Building
Name:
American
Center
Building Address: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(e) Premises: Floor:
4th
and
5th
Suite
Number:
400
and 500
Square
Feet:
38,336
rentable / 36,290 usable
(f) Term:
Scheduled
Occupancy
Date:
June
1, 2003
Scheduled
Expiration Date of Initial Term: November
30, 2013
Initial
Term:
Ten (10) years Six (6) months
(g) Base
Rent:
|
Date
|
Monthly
Base Rent
|
Annual
Base Rent
|
|
6/1/03
- 5/31/04
|
$66,289.33
|
$795,471.96
|
|
6/1/04
- 5/31/05
|
$67,886.67
|
$814,640.04
|
|
6/1/05
- 5/31/06
|
$69,484.00
|
$833,808.00
|
|
6/1/06
- 5/31/07
|
$72,678.67
|
$872,144.04
|
|
6/1/07
- 5/31/08
|
$74,276.00
|
$891,312.00
|
|
6/1/08
- 5/31/09
|
$75,873.33
|
$910,479.96
|
|
6/1/09
- 5/31/10
|
$77,470.67
|
$929,648.04
|
|
6/1/10
- 5/31/11
|
$79,068.00
|
$948,816.00
|
|
6/1/11
- 5/31/12
|
$80,665.33
|
$967,983.96
|
|
6/1/12
- 5/31/13
|
$82,262.67
|
$987,152.04
|
|
6/1/13
- 11/30/13
|
$82,262.67
|
N/A
|
|
Aggregate
|
$9,445,032.06
|
(h) Tenant's
Proportionate Share:
Tenant’s
Proportionate Share of Operating
Expenses, Utilities and Taxes:
38,336
Rentable
square feet in the Premises divided by
488,465
Rentable
square feet in the Building = 7.8483%
Tenant’s
Proportionate Share of Office
Tower Space Cleaning:
38,336
Rentable
square feet in the Premises divided by
442,370
Rentable
square feet in the Building = 8.6660
%
(i)
Number
of
Tenant’s Designated Parking Spaces: Ten
(10) at
an
initial increase of additional rent of $75.00
per
space per month.
(j) Security
Deposit: NONE
(k) Tenant
Improvement Allowance: See Exhibit D
(l) Base
Year:
2004
(m) Permitted
Use: Office
Use
SECTION
2.
THE
PREMISES
2.01 Landlord,
in consideration of the rents to be paid and the covenants and agreements to
be
performed by Tenant, hereby leases to Tenant the premises set forth in Section
1.01(e) (the "Premises") in the building(s) (the "Building") described in
Section 1.01(d), together with the right to use the parking and common areas
and
facilities which may be furnished from time to time by Landlord (collectively
the "Common Areas"), including, without limitation, all common elevators,
hallways and stairwells located within the Building, and all common parking
facilities, driveways and sidewalks, in common with Landlord and with the
tenants and occupants of the Project, their agents, employees, customers,
clients and invitees. No
later than thirty (30) days after the date of this Lease, Tenant, at its sole
cost and expenses, may engage an architect to measure the floor area of the
Premises in accordance with the BOMA Standard (as defined below) using a common
area load factor of 5.638%, and to certify the results of such measurement
to
Landlord and Tenant in writing. If Landlord disputes the results, Landlord,
Landlord’s architect, if any, Tenant, and Tenant’s architect shall meet and
resolve the dispute within five (5) days a the delivery of Landlord’s notice. If
the measured Rentable Floor Area of the Premises as accepted by Landlord and
Tenant is more than 1% different from that specified in Section 1.1(e), the
Annual Base Rental and Monthly Installments of Base Rent and Tenant Improvement
Allowance shall each be recomputed, using the square footage figure of the
measured Rentable Floor Area of the Premises. Landlord and Tenant agree that
in
such event, they shall each execute an amendment hereto or, at Landlord’s
option, a restatement hereof reflecting the changes in Rentable Floor Area,
Proportionate Share, Annual Base Rent, Monthly Installments of Base Rent and
Tenant Improvement Allowance. The "BOMA Standard" means the Standard Method
for
Measuring Floor Areas as published by the Secretariat, Building Owners and
Managers Association International (“BOMA”) (ANSI/BOMA Z65-1996), approved June
7, 1996. If Tenant fails to so measure on its own initiative, Tenant agrees
that
the Premises and the Building shall be deemed to include the number of rentable
square feet set forth in Section 1.01(h) and in no
event
shall Tenant have the right to challenge, demand, request or receive any change
in the base rent or other sums due hereunder as a result of any claimed or
actual error or omission in the rentable or usable square footage of the
Premises, the Building or the Project. However,
should Landlord make any alterations or additions to the Building which change
the total rentable square footage of the Building or if Tenant relocates within
the Building, the calculation in 1.01 (h) will be adjusted in accordance with
the BOMA Standard.
Landlord
reserves the right at any time and from time to time to make alterations or
additions to the Building or the Common Areas, and to demolish improvements
on
and to build additional improvements on the land surrounding the
Building,
during which time Tenant shall continue to have access to the Building and
the
Premises and Tenant’s use of the Premises shall not be materially adversely
affected,
and to
add or change the name of the Building from time to time, in its sole discretion
without the consent of Tenant and the same shall not be construed as a breach
of
this Lease. The Building, the other buildings listed in Section 1.01(d), the
Common Areas and the land surrounding the Building and the Common Areas are
hereinafter collectively referred to as the "Project".
2.02 Landlord
agrees to construct the improvements to the Premises (the "Tenant Improvements")
in accordance with the space plan(s) (as it may be amended by approved change
orders, the "Plans"), attached as Exhibit "A". Landlord
shall develop and deliver to Tenant construction documents for the construction
of the Tenant Improvements, together with a line item construction budget
estimating the cost of the Tenant Improvements, all of which shall be subject
to
Tenant ‘s approval, which approval shall not be unreasonably withheld or
delayed. Landlord will use commercially reasonable efforts to develop and submit
the final construction documents and the line item budget to Tenant in order
for
Tenant to meet the deadlines described in Section 2.04 below. Landlord shall
do
all work and do all things necessary to obtain building permits necessary to
build and construct the improvements in accordance with the Plans (including,
but not limited to, obtaining necessary building permits, occupancy permits
and
construction drawings. All
material changes from the Plans which Landlord determines are necessary during
construction shall be submitted to Tenant for Tenant's approval or rejection.
If
Tenant fails to notify Landlord of Tenant's approval or rejection of such
changes within five (5) business
days of
receipt thereof, Tenant shall be conclusively deemed to have approved such
changes. Landlord's approval of the Plans shall not constitute a representation,
warranty or agreement (and Landlord shall have no responsibility or liability
for) the completeness or design sufficiency of the Plans or the Tenant
Improvements, or the compliance of the Plans or Tenant Improvements with any
laws, rules or regulations of any governmental or other authority.
2.03 The
provisions of Exhibit D, special provisions, shall govern the cost of
constructing Tenant Improvements.
2.04 Landlord
intends to construct the Tenant Improvements and deliver the Premises "ready
for
occupancy" (as defined below) to Tenant on the Scheduled Occupancy Date set
forth in Paragraph 1.01(f). The Premises will be conclusively deemed "ready
for occupancy" on the earlier to occur of when: (i) the work to be done under
this Paragraph has been substantially completed and after the issuance of a
conditional or temporary certificate of occupancy for the Premises by the
appropriate government agency within whose jurisdiction the Building is located
(provided
the conditions set forth in the conditional or temporary certificate of
occupancy do not materially interfere with the use of the Premises by
Tenant),
or (ii)
when Tenant takes possession of the Premises (except
pursuant to the provisions set forth in Exhibit D, Section D6).
The
Premises will not be considered unready or incomplete if only minor or
insubstantial details of construction, decoration or mechanical adjustments
remain to be done within the Premises or Common Areas of the Building, or if
only landscaping or exterior trim remains to be done outside the Premises,
or if
the delay in the availability of the Premises for Tenant's occupancy is caused
in whole or in material part by Tenant. By occupying the Premises, Tenant will
be deemed to have accepted the Premises and to have acknowledged that they
are
in the condition called for in this Lease, subject only to "punch list" items
(as the term "punch list" is customarily used in the construction industry
in
the area where the Project is located) identified by Tenant by written notice
delivered to Landlord within ten (10) days after the date Landlord tenders
possession of the Premises to Tenant
in
accordance with the terms hereof.
If in
good faith Landlord is delayed or hindered in construction by any labor dispute,
strike, lockout, fire, unavailability of material, severe weather, acts of
God,
restrictive governmental laws or regulations, riots, insurrection, war or other
casualty or events of a similar nature beyond its reasonable control ("Force
Majeure"), the date for the delivery of the Premises to Tenant "ready for
occupancy" shall be extended for the period of delay caused by the Force
Majeure. If Landlord is delayed or hindered in construction as a result of
change orders or other requests by, or acts of, Tenant (“Tenant Delay”) the date
for the delivery of the Premises to Tenant “ready for occupancy” shall be
extended by the number of days of delay caused by Tenant Delay. The Scheduled
Occupancy Date as extended as a result of the occurrence of a Force Majeure
or
Tenant Delay or with the consent of Tenant, is herein referred to as the
Occupancy Date. Notwithstanding
anything set forth in this Lease to the contrary, in the event the Occupancy
Date does not occur on or before the date which is six (6) months after the
date
(the “Approval Date”) of the approval of the construction documents and line
item budget for the Tenant Improvements by Landlord and Tenant, except for
delays caused by Force Majeure or Tenant Delays or with the consent of Tenant,
then Tenant, as its sole and exclusive remedy, shall have the right to notify
Landlord of Tenant’s intent to terminate this Lease by the delivery of written
notice thereof to Landlord of such failure and if Landlord shall fail to deliver
the Premises to Tenant "ready for occupancy" within ten (10) days after such
notice, this Lease shall automatically terminate and neither Landlord nor Tenant
shall have any further obligations to the other hereunder. In addition, if
Tenant approves a preliminary space plan for the Premises prior to February
1,
2003, and if the Approval Date occurs prior to March 1, 2003, in the event
the
Occupancy Date does prior to July 1, 2003, except for delays caused by Force
Majeure or Tenant Delays or with the consent of Tenant, then Tenant, as its
sole
and exclusive remedy, shall have the right to receive a rental abatement of
one
(1) day of Base Rent for each day that elapses between July 1, 2003 and the
actual Occupancy Date (which rental abatement shall commence upon the
Commencement Date), and the Term shall be extended by a like number of days.
If
Tenant does not meet the February 1 or March 1 deadlines, then the July 1 date
shall be extend for each day that elapses until Tenant preliminary space plan
or
the Approval date occurs, as the case may be. Otherwise, Landlord shall not
be
subject to any liability for failure to deliver possession of the Premises
to
Tenant "ready for occupancy" on the Scheduled Occupancy Date and the validity
of
the Lease shall not be impaired by such failure.
SECTION
3.
THE
TERM
3.01 The
initial term of this Lease (the "Initial Term or "Term"") will commence (the
"Commencement Date") on the earlier of: (i) the date Tenant takes possession
of
the Premises; or (ii) the Occupancy Date; or,
(iii)
the
date the Occupancy Date would have occurred in the absence of Tenant Delay.
Unless sooner terminated or extended in accordance with the terms hereof, the
Lease will terminate the number of Lease Years and Months set forth in
Paragraph 1.01(f) after the Commencement Date. If the Commencement Date is
other than the first day of a calendar month, the first Lease Year shall begin
on the first day of the first full calendar month following the Commencement
Date. Upon request by Landlord, Tenant will execute a written instrument
confirming the Commencement Date and the expiration date of the Initial
Term.
SECTION
4.
THE
BASE RENT
4.01 From
and
after the Commencement Date, Tenant agrees to pay to Landlord, as minimum net
rental for the Initial Term and Option Terms of this Lease, the sum(s) set
forth
in Paragraph 1.01(g) (the "Base Rent"). The term "Lease Year" as used
herein shall be defined to mean a period of twelve (12) consecutive calendar
months. The first Lease Year shall begin on the date determined in accordance
with Section 3.01. Each succeeding Lease Year shall commence on the anniversary
date of the first Lease Year.
4.02 Base
Rent
and other sums due Landlord hereunder shall be paid by Tenant to Landlord in
equal monthly installments (except as otherwise provided herein), in advance,
without demand and without any setoffs or deductions whatsoever, on the first
day of each and every calendar month (the "Rent Day") during the Initial Term
and Option Terms, if any, at the office of Manager as set forth in Section
1.01(c), or at such other place as Landlord from time to time may designate
in
writing. In the event the Commencement Date is other than the first day of
a
calendar month, the Base Rent for the partial first calendar month of the
Initial Term will be prorated on a daily basis based on the number of days
in
the calendar month and will be paid in addition to the rent provided in
Paragraph 4.01 above. Base Rent for such partial calendar month and for the
first full calendar month of the first Lease Year shall be paid upon the
execution of this Lease by Tenant.
SECTION
5.
LATE
CHARGES AND INTEREST
5.01 Any
rent
or other sums payable by Tenant to Landlord under this Lease which are not
paid
within five (5) business
days
after they are due will be subject to a late charge of
three
percent (3%) of the amount due for first occurrence per
calendar year
that
an amount payable is not paid within five (5) business days after it is due,
and
ten
(10%)
percent of the amount due for
any subsequent occurrence that an amount payable has not been paid within five
(5) business days after such amount was due.
Such
late charges will be due, and payable as additional rent on or before the next
Rent Day.
5.02 Any
rent,
late charges or other sums payable by Tenant to Landlord under this Lease not
paid within ten (10) business
days
after the same are due will bear interest at a per annum rate equal to the
lower higher
of: (i)
City
Bank Prime plus four (4%) percent eighteen
(18%) percent
per
annum, or (ii) the
highest rate permitted by law eleven
percent (11%) per annum.
Such
interest will be due and payable as additional rent on or before the next Rent
Day, and will accrue from the date that such rent, late charges or other sums
are payable under the provisions of this Lease until actually paid by
Tenant.
5.03 Any
default in the payment of rent, late charges or other sums will not be
considered cured unless and until the late charges and interest due hereunder
are paid by Tenant to Landlord. If Tenant defaults in paying such late charges
and/or interest, Landlord will have the same remedies as Landlord would have
if
Tenant had defaulted in the payment of rent. The obligation hereunder to pay
late charges and interest will exist in addition to, and not in the place of,
the other default provisions of this Lease.
SECTION
6.
OPERATING
EXPENSES, UTILITIES, AND TAXES
6.01 In
the
event that Operating Expenses for the Project, in any calendar year, exceed
the
Operating Expenses for the Base Year (as defined in Paragraph 1.01(l)), Tenant
shall pay to Landlord, as additional rent, Tenant's Proportionate Share (as
defined in Paragraph 1.01(h)) of any such excess. Tenant's obligations
hereunder shall be pro-rated for any calendar year in which Tenant is obligated
to pay rent for only a portion thereof. For the purposes of this Section, the
term "Operating Expenses" shall mean and include those expenses paid or incurred
by Landlord for: maintaining, operating, owning, and repairing the Project,
providing electricity, steam, water, sewer, fuel, heating, lighting, air
conditioning, window cleaning, janitorial service, personal property taxes,
insurance (including, but not limited to, fire, extended coverage, liability,
worker's compensation, elevator, boiler and machinery, war risk, or any other
insurance carried in good faith by Landlord and applicable to the Project);
painting, uniforms, management fees, supplies, sundries, sales, or use taxes
on
supplies or services; wages and salaries of all persons engaged in the
operation, maintenance and repair of the Project, and so-called fringe benefits,
including social security taxes, unemployment insurance taxes, providing
coverage for disability benefits, pension, hospitalization, welfare or
retirement plans, or any other similar or like expenses incurred under the
provisions of any collective bargaining agreement, or any other similar or
like
expenses which Landlord pays or incurs to provide benefits for employees so
engaged in the operation, maintenance and repair of the Project; the charges
of
any independent contractor who, under contract with Landlord or its
representatives, does any of the work of operating, maintaining or repairing
the
Project; capital expenditures; legal and accounting expenses including, but
not
limited to, such expenses as relate to seeking or obtaining reductions in,
and
refunds of, real estate taxes; or any other expenses or charges, whether or
not
hereinbefore mentioned, which in accordance with generally accepted accounting
and management principles would be considered as an expense of maintaining,
operating, owning or repairing the Project.
Notwithstanding
anything contained in this Lease to the contrary, if for any reason, including
but not limited to imposition of governmental requirements, laws or regulations,
or in the event Landlord deems it’s necessary or prudent to expend monies
directly or indirectly for the purpose of attempting to reduce energy
consumption of the Building and if by generally accepted accounting principles
or sound accounting and management principles those funds expended are, or
may
be treated as capital expenditures, then the
calculation of the cost of such capital expenditure that Tenant
shall also
pay
shall
equal:
(i) its
prorata share of the utility charges actually incurred, in accordance with
this
Lease; plus (ii) its prorata share of the savings generated by the capital
expenditures for the applicable period, which savings shall be applied toward
amortization of those capital expenditures until such time as the savings from
the energy reduction have fully amortized and paid for the capital
expenditure.
The
term “Operating Expenses” shall not include the following
items:
(1) The
cost of repairs and general maintenance due to casualty or condemnation paid
by
proceeds of insurance, by Tenant or by other third parties, and the cost of
alterations attributable solely to tenants other than Tenant;
(2) Any
ground lease rental or mortgage principal or interest;
(3) Costs,
including permit, license and inspection costs, incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space at the
Project (except to the extent that such costs are included in connection with
the common areas) or to correct defects in the construction of the
Project;
(4) Depreciation
and amortization, except on materials, tools, supplies and vendor type equipment
purchased by Landlord to enable Landlord to supply services Landlord might
otherwise contract for with a third party, where such depreciation and
amortization would otherwise have been included in the charge for such third
party’s services, all as determined in accordance with generally accepted
accounting principles (“GAAP”) consistently applied and amortized over the
reasonable useful life;
(5) Attorney’s
fees and accountants’ fees incurred in connection with disputes with present
tenants or other occupants of the Project (not including disputes, the
resolution of which would directly benefit all tenants in the
Project);
(6) Except
as otherwise set forth above, the costs of new (as opposed to replacement)
capital improvements; provided, the amortization of the cost of capital
improvements which are in replacement of existing capital improvements shall
be
amortized over the reasonable useful life;
(7) Amounts
paid or incurred by Landlord to affiliates in excess of the prevailing market
rate for management or services in the building or for supplies or materials
at
other first class office buildings in the area;
(8) Interest,
principal, points and fees on debt or amortization on any mortgage or mortgages
or any other debt instrument encumbering this Lease or the
Project;
(9) All
items and services for which Tenant or any other tenant of the Project
reimburses Landlord, including costs of excess or additional services provided
to any tenant that are directly billed to such tenant;
(10) Tax
penalties incurred as a result of Landlord’s negligence or inability or
unwillingness to make payments when due;
(11) Landlord’s
general corporate overhead and general administrative expenses other than those
permitted in this Lease;
(12) Any
political or charitable contributions made by Landlord;
(13) Any
amount for which Landlord receives reimbursement from others, including without
limitation, from insurers;
(14) Marketing
expenses, Tenant Improvements and leasing commission incurred in leasing office
or other space in the Project;
(15) Expenses
incurred in connection with services above Building
Standards
of the type that are not provided to Tenant but which are provided to other
tenant(s) of the Building of Project;
(16) Lights
and power costs for individual tenant premises.
(17) Collector
quality art work but Operating Expenses will include reasonable and customary
decorations.
6.02 If
the
Project is not fully rented during all or a portion of any year, then Landlord
may
elect shall
to
make
an appropriate adjustment of the Operating Expenses and Real Estate Taxes (as
defined below) for such year and for the Base Year employing sound accounting
and management principles, to determine the amount of Operating Expenses and
Real Estate Taxes that would have been paid or incurred by Landlord had the
Project been fully rented; and the amount so determined shall be deemed to
have
been the amount of Operating Expenses and Real Estate Taxes for such year.
If
any expenses relating to the Project, though paid in one year, relate to more
than one calendar year, at
the option of Landlord shall
such
expense may be proportionately allocated among such related calendar years.
In
addition, in the event any Operating Expense or Real Estate Tax applies to
only
some portion of the Project or is partially allocable to other buildings or
projects, Landlord may shall
allocate
such expense among such buildings and projects in accordance with sound
accounting and management principles to determine the amount of Operating
Expenses and Real Estate Taxes for the Project and the Building.
6.03 In
the
event that Real Estate Taxes (as hereinafter defined) for the Project, in any
calendar year, exceed the Real Estate Taxes for the Base Year, Tenant shall
pay
to Landlord, as additional rent, Tenant's Proportionate Share of any such excess
over and above the Base Real Estate Taxes (as hereinafter defined). The "Base
Real Estate Taxes" shall be the Real Estate Taxes shown on the bills for which
the "due date" occurs in the Base Year. "Real Estate Taxes" as used herein
shall
mean real estate taxes, assessments (general, special, ordinary or
extraordinary) sewer rents, rates and charges, taxes based upon the receipt
of
rent, and any other federal, state or local charge (general, special, ordinary
or extraordinary) which may now or hereafter be imposed, levied or assessed
against the Project or any part thereof, or on any building or improvements
at
any time situated thereon. In the event the State of Michigan or any political
subdivision thereof having taxing authority shall modify, repeal or abolish
the
ad valorem tax on real property, or impose a tax or assessment of any kind
or
nature upon, against, or with respect to the Project or the rents payable by
Tenant or on the income derived from the Project, or with respect to Landlord's
ownership interest in the Project, which tax is assessed or imposed by way
of
substitution for or in addition to all or any part of the Real Estate Taxes,
then such tax or assessment shall be included within the definitions of "Real
Estate Taxes"; provided, however, nothing herein contained shall impose an
obligation on Tenant to pay the general income tax or Michigan Single Business
Tax liabilities of Landlord, except to the extent such a tax is being used
to
fund governmental functions presently or previously funded by ad valorem taxes
on real property.
6.04 At
any
time and from time to time, Landlord may reasonably estimate the amount by
which
current Real Estate Taxes and Operating Expenses are expected to exceed the
Real
Estate Taxes and Operating Expenses for the Base Year (the "Estimated Excess
Expenses"). Tenant shall pay its Proportionate Share of the Estimated Excess
Expenses by depositing with Landlord on each Rent Day during the term hereof
an
amount equal to one-twelfth (1/12) of its annual share of the Estimated Excess
Expenses. Landlord shall deliver to Tenant, within a reasonable period of time
after the close of each calendar year, an annual statement indicating the amount
by which the Real Estate Taxes and Operating Expenses actually incurred in
that
calendar year exceed the Real Estate Taxes and Operating Expenses for the Base
Year (the "Actual Excess Expenses"). In the event that the Actual Excess
Expenses exceed the Estimated Excess Expenses, Tenant shall pay Tenant's
Proportionate Share of the difference to Landlord within fifteen (15) days
of
delivery of the annual statement. In the event that Estimated Excess Expenses
exceed Actual Excess Expenses, then at Landlord's option Tenant shall either
be
reimbursed to the extent that Tenant's payments toward Tenant's share of the
Estimated Excess Expenses exceed Tenant's Proportionate Share of the Actual
Excess Expenses, or Tenant shall be granted a corresponding credit against
the
Base Rent or other sums next due Landlord hereunder
or
refunded to the Tenant within thirty (30) days after the end of the Lease
Term.
6.05 Tenant
shall be responsible for and pay before delinquent all municipal, county, and
state taxes assessed, levied or imposed during the term of this Lease, and
all
extensions thereof, upon the leasehold interest and all furniture, fixtures,
machinery, equipment, apparatus, systems and all other personal property of
any
kind whatsoever located at, placed in or used in connection with the
Premises.
6.06 Landlord
agrees with Tenant that Landlord will furnish heat and air conditioning during
normal business hours (8:00 a.m. to 6:00 p.m. Monday through Friday,
and
Saturday 9:00 a.m. to 2:00 p.m., excluding
Building holidays).
Landlord shall provide adequate thermal environmental comfort and air velocity
limits for the leased premises in accordance with the standards of the American
Society of Heating, Refrigeration and Air-Conditioning Engineers, Inc.
(“ASHRAE”), in ASHRAE-55. Fresh air levels shall be maintained in accordance
with current ASHRAE-62 Standards, as amended (ventilation for acceptable air
quality), usual
and
customary janitorial services, as set forth in Exhibit "C", and provide
water and sewer service to the Premises and hot and cold water for ordinary
lavatory purposes in the common area restrooms. However, if Tenant uses or
consumes water for any other purpose or in unusual quantities (of which fact
Landlord shall be the sole judge) Landlord may install a water meter at Tenant's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair, to register such water consumption. Tenant shall
pay
for the quantity of water shown on said meter, together with the sewer rents,
debt service and other charges made by the local utilities for water and sewer
service, as additional rent, at the secondary rate per gallon (general service
rate) established by the applicable governmental authority or the applicable
utility company providing the water. Whenever machines or equipment which
generate heat are used in the Premises which affect the temperature otherwise
maintained by the air-conditioning system, Landlord reserves the right
after
seven (7) days prior notice to
install supplementary air-conditioning equipment in the Premises, and the cost
thereof, and the expense of operation and maintenance thereof, shall be paid
by
Tenant to Landlord. Although Landlord will provide air-conditioning and/or
heat
upon the prior request of Tenant in accordance with Building practices for
hours
other than regular business hours, Tenant will pay Landlord's charges for
providing such service. Said charges shall include a cost equal to the cost
to
operate the equipment for Tenant's expanded business hours and days, and
Landlord's maintenance, equipment amortization and other appropriate charges
which Landlord determines are attributable to operating the equipment for
periods in excess of the normal business hours described above.
Currently the charges for the after hours HVAC are $165.00 per hour for one
full
floor, $80.00 per hour for one-half floor, and the charges for fans only are
$60.00 per hour for one floor, $30.00 per hour for one-half floor. All such
charges are subject to change at Landlord’s sole discretion, based upon
increases in the actual or reasonably estimated cost thereof.
6.07 Tenant
shall pay all charges made against the Premises for electricity used upon or
furnished to the Premises as and when due during the continuance of this Lease.
To the extent electricity is not separately metered for the Premises, Landlord
shall make a determination of Tenant's usage of electricity supplied to the
Building, and Tenant agrees to pay for such electricity within thirty (30)
days
after request therefor from Landlord. Whether or not metered, Tenant shall
pay
for the electricity at the secondary rate (general service rate) established
by
the applicable governmental authority or the applicable utility company
providing the electricity. Tenant shall also pay for fluorescent or other
electric light bulbs or tubes and electric equipment used in the leased
Premises.
Notwithstanding
anything to the contrary contained in this Section 6.07, the Premises, pursuant
to the Plans, is metered separately for electricity.
SECTION
7.
USE
OF PREMISES
7.01 Tenant
shall occupy and use the Premises during the Term for the purposes set forth
in
Section 1.01(m) only, and for no other purpose without the prior written consent
of Landlord which
consent shall not be unreasonably withheld or delayed.
Tenant
agrees that it will not use or permit any person to use the Premises or any
part
thereof for any use or purpose in violation of the laws of the United States,
the laws, ordinances or other regulations of the State or municipality in which
the Premises are located, or of any other lawful authorities,
or any building and use restrictions
which ,
now or hereafter affecting the Premises or any part thereof.
7.02 Tenant
will not do or permit any act or thing to be done in or to the Premises or
the
Project which could
reasonably be expected to will
invalidate
or be in conflict with any terms or conditions required
to be
contained in any property
or casualty insurance policy authorized to be issued in the State of Michigan
or
any term or condition of the Insurance Services Office’s (ISO) Commercial
Property Insurance and/or Commercial General Liability Insurance Conditions
or
any different or additional terms and conditions of any
insurance policy in effect on the Premises or the Project from time to time
(collectively the “Building Insurance”) as
notified by Landlord,
nor
shall Tenant do nor permit any other act or thing to be done in or to the
Premises or the Project which could
reasonably be expected to shall
or might
subject
Landlord to any liability or responsibility to any person or for property
damage, nor shall Tenant use the Premises or keep anything on or in the Project
except as now or hereafter permitted by the fire regulations, the fire
department or zoning, health, safety, land use or other regulations. Tenant,
at
Tenant’s sole cost and expense, shall comply with all requirements and
recommendations for
the Premises set
forth
by any property or casualty insurer or reinsurer providing coverage for the
Premises or the Project or by any person or entity engaged by Landlord or
Manager to perform any loss control, analysis or assessment for the Premises
or
the Project. Tenant shall not do or permit anything to be done in or upon the
Premises or the Project or bring or keep anything therein or use the Premises
or
the Project in a manner which increases the rate of premium for any Building
Insurance or any property or equipment located therein over the rate in effect
at the commencement of the Term of this Lease. In addition, Tenant agrees to
pay
Landlord the amount of any increase in premiums for insurance which may be
charged during the term of this Lease resulting from the act or omissions of
Tenant or the character or nature of its occupancy or use of the Project or
the
Premises, whether or not Landlord has consented to the same. Any scheduled
or
“make-up” of any insurance rate for the Premises, the Building or the Project
issued by any insurance company establishing insurance premium rates for the
Premises, Building or the Project shall be prima
facie evidence
of the facts therein stated and of the several items and charges in the
insurance premium rates then applicable to the Premises, the Building or the
Project. Tenant shall give Landlord notice promptly after Tenant learns of
any
accident, emergency, or occurrence for which Landlord is or may be liable,
or
any fire or other casualty or damage or defects to the Premises, the Building
or
the Project which Landlord is or may be responsible or which constitutes the
property of Landlord.
7.03 Tenant
shall not perform acts or carry on any activities or engage in any practices
which may injure the Premises or any portion of the Project or which may be
a
nuisance or menace to other persons on or in the Project. Tenant shall pay
all
costs, expenses, fines, penalties, or damages which may be imposed upon Landlord
by reason of Tenant's failure to comply with the provisions of this
Section.
7.04 Tenant
will not place any load upon any floor of the Premises exceeding the floor
load
per square foot area which it was designed to carry and which is allowed by
law.
Landlord reserves the right to reasonably
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such items shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient in Landlord's judgment, to absorb and prevent
vibration, noise and annoyance. If at any time any windows of the Premises
are
temporarily or
permanently
closed,
darkened or covered in
connection with any work performed in the Premises or elsewhere on the Project
for
any reason whatsoever, including Landlord’s own acts,
Landlord shall not be liable for any damage Tenant may sustain thereby, and
the
same shall not be considered a default under this Lease and Tenant shall not
be
entitled to any compensation therefore nor abatement of any Base Rent or any
other sums due hereunder, nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction, construction, actual or
otherwise.
7.05 During
the term hereof, and consistent with janitorial services provided by Landlord,
Tenant will keep the Premises in a clean and wholesome condition, will use
the
same in a careful and proper manner, and generally will comply with all laws,
ordinances, orders and regulations affecting the Premises and the cleanliness,
safety, occupancy and use thereof. Tenant will not commit waste in or on the
Premises, and will use the Premises in accordance with the Rules and Regulations
of the Project, as set forth in Exhibit B, attached hereto and made a part
hereof.
7.06 As
between Landlord and Tenant, after
the completion of the Tenant Improvements by Landlord Tenant
shall be responsible for any alterations, changes or improvements to the
Premises which may be necessary in order for the Premises and Tenant's use
thereof to be in compliance with the Americans with Disabilities Act of 1990
and
its state and local counterparts or equivalents (the "Disabilities Act") during
the term of this Lease.
7.07 For
the
purposes of this Lease, the term "Hazardous Materials" shall mean, collectively,
(i) any biological materials, chemicals, materials, substances or wastes which
are now or hereafter become defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials", "extremely
hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic
pollutants", or words of similar import, under any applicable Environmental
Law
(as defined below) and (ii) any petroleum or petroleum products and asbestos
in
any form that is or could become friable.
7.08 For
the
purposes of this Lease, the term "Environmental Laws" shall mean all federal,
state, and local laws, statutes, ordinances, regulations, criteria, guidelines
and rules of common law now or hereafter in effect, and in each case as amended,
and any judicial or administrative interpretation thereof, including, without
limitation, laws and regulations relating to emissions, discharges, releases
or
threatened releases or Hazardous Materials or otherwise related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials. Environmental Laws include but
are
not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended; the Resource Conservation and Recovery Act,
as amended; the Clean Air Act, as amended; the Clean Water Act, as amended;
and
their state and local counterparts or equivalents.
7.09 Tenant
shall not (either with or without negligence) cause or permit the escape,
disposal or release of any Hazardous Materials. Tenant shall not allow the
storage or use of such Hazardous Materials on the Premises or the Project in
any
manner prohibited by the Environmental Laws or by the highest standards
prevailing in the industry for the storage and use of such Hazardous Materials,
nor allow to be brought into the Premises or the Project any such Hazardous
Materials except to use in the ordinary course of Tenant’s business, and then
only after written notice is given to Landlord of the identity of such Hazardous
Materials and Landlord consents in writing to the use of such materials.
Landlord shall have the right at any times during the term of this Lease to
perform assessments of the environmental condition of the Premises and of
Tenant’s compliance with this Section 7.09. If
at
the time that Landlord performs or causes to be performed any such assessment
and such assessment or inspection proves that Tenant as a result of the acts
and/or omissions of Tenant, Tenant’s employees, invitees, licensees, servants,
agents, contractors or designees has caused any (i) non-compliance with any
Environmental Law or the highest standards prevailing in the industry for the
storage and usage of Hazardous Materials; (ii) damage; or (iii) contamination,
or that Tenant is otherwise in default under this Section 7.09 then Tenant
shall
promptly reimburse Landlord for the cost of the assessment. In
connection with any such assessment, Landlord shall have the right to enter
and
inspect the Premises and perform tests (including physically invasive tests),
with
twenty four (24) hour prior notice, except in the case of emergency
and
provided
such tests are performed in a manner that minimizes disruption to Tenant. Tenant
will cooperate with Landlord in connection with any such assessment by, among
other things, responding to inquires and providing relevant documentation and
records. Tenant will accept custody and arrange for the disposal of any
Hazardous Materials that are required to be disposed of as a result of those
tests. Landlord shall have no liability or responsibility to Tenant with respect
to any such assessment or test or with respect to results of any such assessment
or test. If during
the period covered by Tenant’s liability and obligation under this Lease
including Section 7.11 any
lender or governmental agency shall ever require testing to ascertain whether
or
not there has been any release of Hazardous Materials, then the reasonable
costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to the Premises or Tenant's activities
on
the Project and
provided such testing indicates that there has been a release of any Hazardous
Material and such release is a result of the acts and/or omissions of Tenant,
Tenant’s employees, invitees, licensees, servants, agents, contractors or
designees.
If any
inspection indicates any (i) non-compliance with any Environmental Law or the
highest standards generally
prevailing
in the industry for the storage and use of Hazardous Materials
and
such non-compliance is the result of the actions or omissions of Tenant,
Tenant’s employees, invitees, customers, visitors, licensees, servants, agents,
contractors of designees;
(ii)
damage
resulting from the acts and/or omissions of Tenant, Tenant’s employees,
invitees, licensees, servants, agents contractors or designees;
or
(iii) contamination
resulting from the acts and/or omissions of Tenant, Tenant’s employees,
invitees, licensees, servants, agents, contractors or designees,
Tenant
shall, at its cost and expense, remedy such non-compliance, damage or
contamination. In addition, Tenant shall execute affidavits, representations
and
the like from time to time at Landlord’s request concerning Tenant’s best
knowledge and belief regarding the presence of Hazardous Materials on the
Premises. Irrespective of whether Landlord elects to inspect the Premises,
if
Hazardous Materials are found on or about the Premises, Landlord shall have
no
responsibility, liability or obligation whatsoever with respect to the
existence, removal or transportation of the Hazardous Material or the
restoration and remediation of the Premises. Tenant’s
obligations under this Section 7.09 with respect to any environmental condition
shall not be applicable to the extent that such environmental condition (a)
exists prior to the commencement of the initial term of the Lease, or (b)
results from (i) the actions or omission of Landlord either before the
commencement of this Lease, during the term hereof or after the termination
of
this Lease, or (ii) the actions or omissions of any preceding or succeeding
tenant or owner of the Premises, or (iii) the actions or omissions of any person
or entity who or which is not a subtenant, employee, agent, invitee, customer,
visitor, licensee, contractor or designee of Tenant.
Further,
Landlord shall have the right to require Tenant to immediately terminate the
conduct of any activity in violation of the Environmental Law, the highest
standards prevailing in the industry for the storage and use of Hazardous
Materials or, if none exist, the standards determined by Landlord.
7.10 Tenant
further agrees that it will not, by either action or inaction, invite or
otherwise cause agents or representatives of any federal, state or local
governmental agency to enter onto the Premises or the Project and/or investigate
the Premises or the Project. This agreement does not allow Tenant to obstruct
any such entry or investigation and the mere fact of a regulatory agency entry
or investigation without Tenant's involvement either by action or inaction
shall
not be deemed a breach of this lease. Nothing set forth in this paragraph shall
prohibit Tenant from reporting any fact or condition which Tenant has been
advised it has a legal obligation to report provided Tenant first notifies
Landlord of such fact or condition and Tenant's intention to report the fact
or
condition.
7.11 After
the completion of the construction of the Tenant Improvements by Landlord
Tenant
shall indemnify, hold harmless and defend Landlord, its licensees, servants,
agents, employees and contractors from any loss, damage, claim, liability or
expense (including reasonable attorney’s fees) arising out of the failure of the
Premises or Tenant’s use thereof to be in compliance with Disabilities Act.
Tenant shall not be required to indemnify, hold harmless or defend Landlord
for
the failure, if any, of the common
areas Common
Areas
(including the parking areas, ramps and walkways) to comply with the
Disabilities Act. Tenant shall indemnify, hold harmless and defend Landlord,
its
licensees, servants, agents, employees and contractors for any loss, damage,
claim, liability or expense (including reasonable attorney’s fees) arising out
of any violation of any Environmental Law(s) by Tenant or its responsible
parties (as described in Section 7.09 above) on the Premises or the Project
which occurs after the date hereof. Tenant shall notify Landlord as soon as
possible after Tenant learns of the existence of or potential for any such
loss,
damage, claim, liability or expense arising out of any violation or claimed
suspected
violation of any Environmental Law(s) or the Disabilities Act. In the event
Tenant refuses to address such violation or suspected violation within five
(5)
days of such notice from Landlord, and, thereafter, to investigate such
violation or suspected violation, and promptly commence and diligently pursue
any action required to address such violation or suspected violation, Landlord
shall have the right, in addition to every other right and remedy it may have
hereunder, to terminate this Lease by giving ten (10) days prior written notice
thereof to Tenant, and upon the expiration of such ten (10) days, this Lease
shall terminate. The covenants set forth herein shall survive the expiration
or
earlier termination of this Lease.
SECTION
8.
INSURANCE
8.01 Commencing
on the Commencement Date, Tenant shall, during the Term of this Lease, maintain
in full force and effect policies of commercial general liability insurance
(including premises, operation, bodily injury, personal injury, death,
independent contractors, products and completed operations, broad form
contractual liability and broad form property damage coverage), in a combined
single limit amount of not less than Five Million Dollars ($5,000,000), per
occurrence (exclusive of defense costs), against all claims, demands or actions
with respect to damage, injury or death made by or on behalf of any person
or
entity, arising from or relating to the conduct and operation of Tenant’s
business in, on or about the Premises (which shall include Tenant’s signs, if
any), or arising from or related to any act or omission of Tenant or of Tenant’s
principals, officers, agents, contractors, servants, employees, licensees and
invitees. Whenever, in Landlord’s reasonable judgment, good business practice
and changing conditions indicate a need for additional amounts or different
types of insurance coverage
due
to the conduct and operation of Tenant’s business in, on or about the Premises,
or arising from or related to any act or omission of Tenant or of Tenant’s
principals, officers, agents, contractors, servants, employees, licensees and
invitees which may increase the risk of liability,
Tenant
shall, within ten (10) days after Landlord’s request, obtain such insurance
coverage, at Tenant’s sole cost and expense.
8.02 Commencing
on the Commencement Date, Tenant shall obtain and maintain policies of workers'
compensation and employers' liability insurance which shall provide for
statutory workers' compensation benefits and employers' liability limits of
not
less than that required by law.
8.03 Commencing
on the Commencement Date, Tenant shall obtain and maintain insurance protecting
and indemnifying Tenant against any and all damage to or loss of any personal
property, fixtures, leasehold improvements, alterations, decorations,
installations, repairs, additions, replacements or other physical changes in
or
about the Premises, including but not limited to the Tenant Improvements, and
all claims and liabilities relating thereto, for their full replacement value
without deduction or depreciation. In addition, if Tenant shall install or
maintain one or more pressure vessels to serve Tenant’s operations on the
Premises, Tenant shall, at Tenant’s sole cost and expense, obtain, maintain and
keep in full force and effect appropriate boiler or other insurance coverage
therefore in an amount not less than One Million and No/100 Dollars
($1,000,000.00) (it being understood and agreed, however, that the foregoing
shall not be deemed a consent by Landlord to the installation and/or maintenance
of any such pressure vessels in the Premises, which installation and/or
maintenance shall at all times be subject to the prior written consent of
Landlord). All insurance policies required pursuant to this Paragraph 8.03
shall be written on a so-called "all risk" form and shall be carried in
sufficient amount so as to avoid the imposition of any co-insurance penalty
in
the event of a loss. Such insurance shall provide the broadest coverage then
available, including coverage for loss of profits or business income or
reimbursement for extra expense incurred as the result of damage or destruction
to all or a part of the Premises.
8.04 All
insurance policies which Tenant shall be required to maintain pursuant to this
Section 8 shall, in addition to any of the foregoing: be written by insurers
which have an A.M. Best & Company rating of "A", Class "X", or better and
who are authorized to write such business in the State of Michigan and are
otherwise satisfactory to Landlord; be written as “occurrence” policy; be
written as primary policy coverage and not contributing with or in excess of
any
coverage which Landlord or any ground or building lessor may carry; name
Landlord, the Manager, and Landlord's mortgagee and ground or building lessor,
if any, as additional insureds; be endorsed to provide that they shall not
be
cancelled, failed to be renewed, diminished or materially altered for any reason
except on thirty (30) days prior written notice to Landlord and the other
additional insureds; and provide coverage to Landlord, Landlord's property
management company, and Landlord's mortgagee whether or not the event or
occurrence giving rise to the claim is alleged to have been caused in whole
or
in part by the acts or negligence of Landlord, Landlord's property management
company, or Landlord's mortgagee. At Landlord's option, either the original
policies or certified duplicate copies of the original policies will be
delivered by Tenant to Landlord at least ten (10) days prior to their effective
date thereof, together with receipts evidencing payment of the premiums
therefor. Tenant will deliver certificates of renewal for such policies to
Landlord not less than thirty (30) days prior to the expiration dates thereof.
No such policy shall contain a deductible or self insured retention greater
than
$5,000.00 $25,000.00
per
claim, nor shall any such policy be the subject of an indemnification or other
arrangement by which any insured is obligated to repay any insurer with respect
to loss occurring on the Premises.
8.05 If
Tenant
fails to provide all or any of the insurance required by this Section 8 or
subsequently fails to maintain such insurance in accordance with the
requirements hereof, then after giving one
(1) three
(3)
business
days written notice to Tenant, Landlord may (but will not be required to)
procure or renew such insurance to protect its own interests only, and any
amounts paid by Landlord for such insurance will be additional rental due and
payable on or before the next Rent Day, together with late charges and interest
as provided in Section 5 hereof. Landlord and Tenant agree that no insurance
acquired by Landlord pursuant hereto shall cover any interest or liability
of
Tenant and any procurement by Landlord of any such insurance or the payment
of
any such premiums shall not be deemed to waive or release the default of Tenant
with respect thereto.
SECTION
9.
DAMAGE
BY FIRE OR OTHER CASUALTY
9.01 It
is
understood and agreed that if, during the Term hereof, the Project and/or the
Premises shall be damaged or destroyed in whole or in part by fire or other
casualty, without the fault or neglect of Tenant, Tenant's servants, employees,
agents, visitors, invitees or licensees, which damage is covered by insurance
carried pursuant to Section 8 above, unless Landlord elects to terminate
this Lease as provided in Paragraph 9.02 below, Landlord shall cause the
Project and/or the Premises to be repaired and restored to good, tenantable
condition with reasonable dispatch at its expense; provided, however, Landlord
shall not be obligated to expend for such repair or restoration an amount in
excess of insurance proceeds made available to Landlord for such purpose, if
any. Landlord's obligation hereunder shall be limited to repairing or restoring
the Project and/or the Premises to substantially the same condition that existed
prior to such damage or destruction.
9.02 If
(i)
more than fifty (50%) percent of the floor area of the Premises shall be damaged
or destroyed, (ii) more than twenty-five (25%) percent of the Project shall
be
damaged or destroyed, or (iii) any material damage or destruction occurs to
the
Premises or the Project during the last twelve (12) months of the Initial Term
or Option Term, as the case may be, then Landlord may elect to either terminate
this Lease or repair and rebuild the Premises. In order to terminate this lease
pursuant to this Paragraph, Landlord must give written notice to Tenant of
its
election to so terminate, such notice to be given within ninety (90) days after
the occurrence of damage or destruction fitting the above description, and
thereupon the term of this Lease shall expire by lapse of time ten (10) days
after such notice is given and Tenant shall vacate the Premises and surrender
the same to Landlord, without prejudice, however, to Landlord's rights and
remedies against Tenant under the Lease provisions in effect prior to such
termination, and any rent owing shall be paid up to such date and any payments
of rent made by Tenant which were on account of any period subsequent to such
date shall be returned to Tenant. Tenant acknowledges that Landlord will not
carry insurance on Tenant's furniture and/or furnishings or any fixtures or
equipment, improvements, or appurtenances removable by Tenant and agrees that
Landlord will not be obligated to repair any damage thereto or replace the
same.
9.03 Tenant
shall give immediate notice to Landlord in case of fire or accident at the
Premises. If Landlord repairs or restores the Premises as provided in
Paragraph 9.01 above, Tenant shall promptly repair or replace its trade
fixtures, furnishings, equipment, personal property and leasehold improvements
in a manner and to a condition equal to that substantially
existing
prior to the occurrence of such damage or destruction.
9.04 If
the
casualty, or the repairing or rebuilding of the Premises pursuant to Paragraphs
9.01 and 9.02 above shall render the Premises untenantable, in whole or in
part,
a proportionate abatement of the rent due hereunder shall be allowed from the
date when the damage occurred until the date Landlord completes the repairs
on
the Premises or, in the event Landlord elects to terminate this Lease, until
the
date of termination. Such abatement shall be computed on the basis of the ratio
of the floor area of the Premises rendered untenantable to the entire floor
area
of the Premises. If
Tenant cannot conduct its business in a reasonable manner in the floor area
still remaining tenantable after the casualty, or the repairing or rebuilding
of
the Premises, then the entire Premises shall be deemed
untenantable.
9.05 Tenant
shall not entrust any property to any employee, contractor, licensee, or invitee
of Landlord. Any person to whom any property is entrusted by or on behalf of
Tenant in violation of foregoing prohibition shall be deemed to be acting as
Tenant’s agent with respect to such property and neither Landlord nor its agents
shall be liable for any damage to property of Tenant or of others entrusted
to
employees of the Project, nor shall Landlord or its agents be liable for any
such damage caused by other tenants or persons in, upon or about the Project
or
caused by operations or construction of any private, public or quasi-public
work.
9.06 Within
fifteen (15) days of any damage or destruction to the Premises described in
Section 9.01, Tenant shall provide written notice to Landlord requesting an
estimate of the time required to substantially repair or restore the Premises.
If Tenant fails to request said estimate by providing written notice to Landlord
within such time period, Tenant’s right to terminate this Lease under this
paragraph shall be deemed waived. Within a reasonable time of receipt of
Tenant’s notice, Landlord shall provide a written notice to Tenant (the
“Landlord Casualty Repair Estimate Notice”) indicating the scheduled completion
date to repair or restore the Premises “ready for occupancy” as defined in
Section 2.04 to substantially the same condition it existed immediately prior
to
the damage or destruction. If the scheduled completion date in the Landlord
Casualty Repair Estimate Notice is more than one-hundred eighty (180) days
after
the date of the damage or destruction or more than sixty (60) days during the
last twelve (12) months of the Term of the Lease (in each case, the “Restoration
Period”), then Tenant may elect to terminate this Lease. In order to terminate
this Lease pursuant to this paragraph, Tenant must give written notice to
Landlord of its election to so terminate, such notice (the “Tenant Casualty
Termination Notice”) shall be given within thirty (30) days of the date the
Landlord Casualty Repair Estimate Notice and thereupon the Term of this Lease
shall expire by lapse of time thirty (30) days after Tenant Casualty Termination
Notice is given and Tenant shall vacate the Premises and surrender the same
to
Landlord, without prejudice, however, to Landlord’s rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and
any
rent owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned
to
Tenant.
SECTION
10.
REPAIRS,
RENOVATIONS AND ALTERATIONS
10.01 Tenant
shall, at Tenant's sole expense, keep the interior of the Premises and the
fixtures therein in good condition, reasonable wear and tear excepted, and
will
also repair all damage or injury to the Premises and fixtures resulting from
the
carelessness, omission, neglect or other action or inaction of Tenant, its
servants, employees, agents, visitors, invitees or licensees. Such damage shall
be promptly repaired or damaged items replaced by Tenant, after
ten (10) days written notice from Landlord and at Tenant’s at
its
sole
expense, to the reasonable
satisfaction of Landlord. If Tenant fails to make such repairs or replacements,
Landlord may do so and the cost thereof shall become collectible as additional
rent hereunder and shall be paid by Tenant within ten (10) days after
presentation of statement therefor. Landlord shall maintain, and shall make
all
necessary repairs and replacements to, the Building, the heating, air
conditioning and electrical systems located therein, and the Common Areas,
provided that at Landlord’s option, (i) Tenant shall make all repairs and
replacements arising from its act, neglect or default and that of its agents,
servants, employees, invitees and licensees, or (ii) Landlord may make such
repairs and replacements and the costs thereof shall become collectable as
additional rent hereunder and shall be paid by Tenant within five (5) days
after
presentation of a statement therefore. Tenant shall keep and maintain the
Premises in a clean, sanitary and safe condition, and shall keep and maintain
the interior of the Premises in full compliance with the laws of the United
States and State of Michigan, all directions, rules and regulations of any
health officer, fire marshal, building inspector, or other proper official
of
any governmental agency having jurisdiction over the Premises, and the
requirements of Landlord's mortgagee, all at Tenant's full cost and expense,
and
Tenant shall comply with all requirements of law, ordinance and regulation
affecting the Premises. Tenant shall make all non-structural repairs to the
Premises as and when needed to preserve them in good order and condition. All
the aforesaid repairs shall be of quality or class equal to the original
construction. Tenant shall give Landlord prompt written notice of any defective
condition in any plumbing, heating system or electrical lines located in,
servicing or passing through the Premises and following such notice, Landlord
shall remedy the condition with due diligence but at the expense of Tenant
if
repairs are necessitated by damage or injury attributable to Tenant, Tenant's
servants, agents, employees, invitees or licensees. There shall be no allowance
to Tenant for diminutions of rental value and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord, Tenant, or others making or failing to make any repairs,
alterations, additions, or improvements in or to any portion of the Building
or
the Premises or in and to the fixtures, appurtenances or equipment thereof.
The
provisions of this Section 10 with respect to the making of repairs shall
not apply in the case of fire or other casualty which are dealt with in
Section 9 hereof.
10.02 Tenant
shall not make any renovations, alterations, additions or improvements to the
Premises without Landlord's prior written consent which
consent shall not be unreasonably withheld.
All
plans and specifications for such renovations, alterations, additions or
improvements shall be approved by Landlord prior to commencement of any work.
Landlord's approval of the plans, specifications and working drawings for
Tenant's alterations shall create no responsibility or liability on the part
of
Landlord for their completeness, design sufficiency, or compliance with laws,
rules and regulations of governmental agencies or authorities, including but
not
limited to the Americans with Disabilities Act, as amended. Notwithstanding
the foregoing, Tenant may make cosmetic alterations to the Premises (i.e.,
painting, wall papering, new carpeting and the like) costing $25,000.00 or
less
with notice but without Landlord’s consent provided such alterations do no
effect the mechanical, electrical, plumbing, communication, fire, or safety
systems of the Building. All
renovations, alterations, additions or improvements made by Tenant upon the
Premises, except for movable office furniture and movable trade fixtures
installed at the expense of Tenant, shall be and shall remain the property
of
Landlord, and shall be surrendered with the Premises at the termination of
this
Lease, without molestation or injury. In addition, Landlord may designate by
written notice to Tenant the alterations, additions, improvements and fixtures
made by or for Tenant, which shall be removed by Tenant at the expiration or
termination of the Lease and Tenant shall promptly remove the same and repair
any damage to the Premises caused by such removal. Tenant
shall not remove, nor be obligated to remove, the Tenant Improvements shown
on
the Plans.
10.03 Tenant
agrees that all renovations, alterations, additions and improvements made by
it
pursuant to Paragraph 10.02, notwithstanding Landlord's approval thereof,
shall be done in a good and workmanlike manner and in conformity with all
guidelines provided by Landlord and all laws, ordinances and regulations of
all
public authorities having jurisdiction, that materials of good quality shall
be
employed therein, that the structure of the Premises shall not be impaired
thereby, that the work shall be carried out and completed in an orderly, clean
and safe manner, and that, while the work is being performed, Tenant shall
maintain builder's risk insurance coverage
for
any improvements in excess of $25,000.00 with
Landlord as a named insured, which insurance coverage shall meet the criteria
set forth in Section 8.
SECTION
11.
LIENS
11.01 Tenant
will keep the Premises free of liens of any sort related
to the acts, omissions or contracts of Tenant, and
will
hold Landlord harmless from any such
liens
which may be placed on the Premises except
those attributable to debts incurred by Landlord.
In the
event a construction or other lien shall be filed against the Building, the
Premises or Tenant's interest therein as a result of any work undertaken by
Tenant or its employees, agents, contractors or subcontractors, or as a result
of any repairs or alterations made by or any other act of Tenant or its
employees, agents, contractors or subcontractors, Tenant shall, within
two
(2) thirty
(30
days
after receiving notice of such lien, discharge such lien either by payment
of
the indebtedness due the lien claimant or by filing a bond (as provided by
statute) as security for the discharge of such lien. In the event Tenant shall
fail to discharge such lien by
payment or bond, after notice,
Landlord shall have the right to procure such discharge by filing such bond,
and
Tenant shall pay the cost of such bond to Landlord as additional rent upon
the
next Rent Day in accordance with Section 5 hereof.
SECTION
12.
EMINENT
DOMAIN
12.01 If
all of
the Premises are condemned or taken in any manner (including without limitation
any conveyance in lieu thereof) for any public or quasi-public use, the term
of
this Lease shall cease and terminate as of the date title is vested in the
condemning authority. If (i) more than fifty (50%) percent of the floor area
of
the Premises shall be condemned or taken in any manner, or (ii) more than
twenty-five (25%) percent of the Building shall be condemned or taken, or (iii)
any material condemnation or taking occurs during the last twelve (12) months
of
the Initial Term or Option Term, as the case may be, or (iv) such a portion
of
the parking area on the Land is so condemned or taken that the number of parking
spaces remaining are less than the number required by applicable zoning laws
or
other building code for the Building, then Landlord may elect to terminate
this
Lease. In order to terminate this Lease pursuant to this Paragraph, Landlord
must give Tenant written notice of its election to so terminate, such notice
to
be given not later than ninety (90) days after the completion of such
condemnation or taking, and thereupon the term of this Lease shall expire on
the
date set forth in such notice, and Tenant shall vacate the Premises and
surrender the same to Landlord, without prejudice, however, to Landlord's rights
and remedies against Tenant under the Lease provisions in effect prior to such
termination, and any rent owing shall be paid up to such date and any payments
of rent made by Tenant which were on account of any period subsequent to such
date shall be returned to Tenant.
12.02 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 Landlord's mortgagee, if any, in restoring, to the extent originally
constructed by 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; provided, however, Landlord shall not be
obligated to expend for such restoration an amount in excess of condemnation
proceeds made available to Landlord, if any. Landlord's obligation hereunder
shall be limited to restoring the Building and/or the Premises to substantially
the same condition that existed prior to such condemnation or
taking.
12.03 If
this
Lease is not terminated pursuant to Paragraph 12.01, the Base Rent and
other sums payable by Tenant hereunder, as adjusted as provided herein, shall
be
reduced in proportion to the reduction in area of the Premises by reason of
the
condemnation or taking. If this Lease is terminated pursuant to
Paragraph 12.01, the minimum net rental and other charges which are the
obligation of Tenant hereunder shall be apportioned and prorated accordingly
as
of the date of termination.
12.04 The
whole
of any award or compensation for any portion of the Premises taken, condemned
or
conveyed in lieu of taking or condemnation, including the value of Tenant's
leasehold interest under the Lease, shall be solely the property of and payable
to Landlord. Nothing herein contained shall be deemed to preclude Tenant from
seeking, at its own cost and expense, an award from the condemning authority
for
loss of its business, the value of any trade fixtures or other personal property
of Tenant in the Premises or moving expenses, provided that the award for such
claim or claims shall not be in diminution of the award made to
Landlord.
12.05 Notwithstanding
Landlord’s right to terminate this Lease pursuant to Section 12.01 above, Tenant
may elect to terminate this Lease if: (i) more than fifty percent (50%) of
the
floor area of the Premises shall be condemned or taken in any manner, or (ii)
any material condemnation or taking occurs to the Premises during the last
twelve (12) months of the Initial Term or Option Term, as the case may be,
or
(iii) if the Restoration Period (as defined below) for the aforementioned (i)
or
(ii) is more than one-hundred eighty (180) days after the date of said
condemnation or taking (individually referred to as the “Qualified
Condemnation”). In order to terminate this Lease pursuant to Qualified
Condemnation (i) or (ii) above Tenant shall, within fifteen (15) days after
the
completion of said condemnation or taking, provide written notice to Landlord
indicating its intent to terminate its Lease, and thereupon the Term of this
Lease shall expire by lapse of time thirty (30) days after said notice from
Tenant is given and Tenant shall vacate the Premises and surrender the same
to
Landlord, without prejudice, however, to Landlord’s rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and
any
rent owing shall be paid up to such date and any payments of rent made by
Tenant, which were on account of any period subsequent to such date shall be
returned to Tenant. If Tenant fails to provide written notice to Landlord within
such time period, Tenant’s right to terminate this Lease under this paragraph
shall be deemed waived. In order to terminate this Lease for Qualified
Condemnation (iii), Tenant shall within fifteen (15) days of the completion
of
the taking of Qualified Condemnation (i) or (ii), provide written notice to
Landlord requesting an estimate of the time required to substantially restore
the Premises. If Tenant fails to provide written notice to Landlord within
such
time period, Tenant’s right to terminate this Lease under this paragraph shall
be deemed waived. Within a reasonable time of receipt of Tenant’s notice
requesting the restoration time frame, Landlord shall provide a written notice
to Tenant (the “Landlord Condemnation Restoration Estimate Notice”) indicating
the scheduled completion date to repair or restore the Premises as described
in
Section 12.02 (the “Restoration Period”). If the Restoration Period is more than
one-hundred eighty (180) days after the date of said condemnation or taking,
then Tenant may elect to terminate this Lease. In order to terminate this Lease,
Tenant must give written notice to Landlord of its election to so terminate,
such notice (the “Tenant Condemnation Termination Notice”) shall be given within
fifteen (15) days of the date of the Landlord Condemnation Restoration Estimate
Notice and thereupon the Term of this Lease shall expire by lapse of time thirty
(30) days after Tenant Condemnation Termination Notice is given and Tenant
shall
vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord’s rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be
paid
up to such date and any payments of rent made by Tenant which were on account
of
any period subsequent to such date shall be returned to Tenant.
SECTION
13.
ASSIGNMENT
OR SUBLETTING
13.01 Tenant
agrees not to assign or in any manner transfer this Lease or any interest in
this Lease without the prior written consent of Landlord, and not to sublet
the
Premises or any part of the Premises or to allow anyone to use or to come in,
through or under the Premises without Landlord's consent,
which consent shall not be unreasonably withheld or delayed.
Any
attempted subletting or assignment without Landlord's consent shall be voidable
in Landlord's sole discretion and, at Landlord's option, shall grant Landlord
the right to terminate this Lease or to exercise any of the other rights or
remedies it may have hereunder. If consented to, no assignment or subletting
shall be binding upon Landlord unless the sublessee or assignee shall deliver
to
Landlord an instrument (in recordable form, if Landlord so requests) containing
an agreement of assumption of all of Tenant's obligations under this Lease.
In
no event may Tenant assign, sublet or otherwise transfer this Lease or any
interest in this Lease at any time while an Event of Default exists hereunder.
Landlord may, in its sole discretion, refuse to give its consent to any proposed
subletting or assignment or exercise its other rights hereunder for any reason,
including, but not limited to, the financial condition, creditworthiness or
business reputation of the proposed sublessee or assignee, the prevailing market
or quoted rental rates for space in the Building or other comparable buildings,
and the proposed use of the Premises by, or business of, the proposed sublessee
or assignee. One consent by Landlord to a subletting or assignment will not
be
deemed a consent to any subsequent assignment, subletting, occupation or use
by
any other person. Neither the consent to any assignment or subletting nor the
acceptance of rent from an assignee, subtenant or occupant will constitute
a
release of Tenant from the further performance of the obligations of Tenant
contained in this Lease. A dissolution, merger, consolidation, or other
reorganization of Tenant and the issuance or transfer of twenty (20%) percent
or
more of the voting capital of Tenant to persons other than shareholders as
of
the beginning of such period within any twelve (12) month period, shall each
be
deemed to be an assignment of this Lease, and as such, prohibited without
Landlord's prior written consent. Notwithstanding
anything in this paragraph to the contrary, notwithstanding the foregoing,
the
merger, consolidation, or other reorganization of Tenant and the sale of all
or
substantially all of Tenant’s assets shall be permitted hereunder with thirty
(30) day prior written notice, but not prior approval, of Landlord if the
resultant entity after such transaction has, and has maintained for each of
the
two (2) full fiscal years preceding the transaction, a net worth exceeding
Five
Million Dollars ($5,000,000), determined in accordance with general accepted
accounting principles, consistently applied, and Tenant furnishes Landlord
evidence reasonably acceptable to Landlord of the net worth standard. Landlord
may allow the occupancy of the Premises by Tenant’s parent company or a
subsidiary or an affiliate which is wholly owned by Tenant (the “Related
Entity”), or the assignment of this Lease or the subletting of all or a portion
of the Premises to a Related Entity provided that: (i) Tenant shall give written
notice to Landlord at least thirty (30) days prior to said proposed occupancy,
assignment or subletting setting forth the terms thereof together with such
financial and other information Landlord may request; and (ii) any such
occupancy, assignment or subletting shall not constitute a release of Tenant
from the further performance of the obligations of Tenant contained in this
Lease; and (iii) any such occupancy, assignment or subletting shall be subject
to Sections 13.03 and 13.04.
13.02 In
the
event Tenant desires to sublet all or a portion of the Premises or assign this
Lease, Tenant shall give notice to Landlord setting forth the terms of the
proposed subletting or assignment together with such financial and other
information Landlord may request. Landlord shall have the right, exercisable
by
written notice to Tenant within sixty
(60) thirty
(30) days
after receipt of Tenant's notice, (i) to consent or refuse to consent thereto
in
accordance with Paragraph 13.01 above, or (ii) to terminate this Lease
which termination may, in Landlord's sole discretion, be conditioned upon
Landlord and the proposed subtenant/assignee entering into a new Lease.
However,
in the event Landlord desires to elect to terminate this Lease, it shall first
notify Tenant of its desire whereupon Tenant may withdraw the request within
ten
(10) days after Landlord’s notice by the delivery of written withdrawal thereof
to Landlord whereupon Landlord shall withdraw its recapture option and Tenant
shall remain fully obligated under this Lease.
13.03 Upon
the
occurrence of an Event of Default, as defined under Section 18, if all or any
part of the Premises are then sublet or assigned, Landlord, in addition to
any
other remedies provided by this Lease or by law, may, at its option, collect
directly from the sublessee or assignee all rent becoming due to Landlord by
reason of the subletting or assignment. Any collection by Landlord from the
sublessee or assignee shall not be construed to constitute a waiver or release
of Tenant from the further performance of its obligations under this Lease
or
the making of a new Lease with such sublessee or assignee.
13.04 In
the
event Tenant shall sublet all or a portion of the Premises or assign this Lease,
one-half
of all
of
the sums of money or other economic consideration received by Tenant or its
affiliates, directly or indirectly, as a result of such subletting or
assignment, whether denominated as rent or otherwise, which exceed in the
aggregate the total sums which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to that portion of the Premises
subject to such sublease) shall be payable to Landlord as additional rent under
this Lease without effecting or reducing any other obligation of Tenant
hereunder.
SECTION
14.
INSPECTION
OF PREMISES
14.01 With
twenty four (24) hour prior notice, except in the case of an emergency,
Tenant
agrees to permit Landlord to enter the Premises for the purpose of inspecting
the same and to show same to prospective purchasers, tenants or mortgagees
of
the Project, and to make such repairs, alterations, improvements or additions
as
Landlord may deem necessary or desirable, and Landlord shall be allowed to
take
all material into and upon the Premises that may be required therefor without
the same constituting an eviction of Tenant in whole or in part and the rent
reserved shall in no way ▇▇▇▇▇ while said repairs, alterations, improvements,
or
additions are being made, by reason of loss or interruption of business of
Tenant, or otherwise. Landlord will give Tenant reasonable notice prior to
an
entry by Landlord pursuant to this Section 14.01, except in the case of
emergencies in which event no notice need be given. Landlord
shall use reasonable efforts not to disrupt, disturb or interfere with the
conduct of Tenant’s business during such entry. Notwithstanding the foregoing,
Landlord may enter the Premises with less than twenty four (24) hours prior
written notice if Tenant gives Landlord its permission to do
so.
SECTION
15.
FIXTURES
AND EQUIPMENT
15.01 All
fixtures and equipment paid for by Landlord,
excluding movable equipment with is funded with that portion of the Tenant
Improvement Allowance with may be used for ancillary equipment acquisition
is in
accordance with Section D.1 below,
and all
fixtures and equipment which may be paid for and placed on the Premises by
Tenant from time to time but which are so incorporated and affixed to Premises
that their removal would involve damage or structural change to Premises will
be
and remain the property of Landlord.
15.02 All
tenant furnishings, office equipment and tenant fixtures (other than those
specified in Sections 10.02 and 15.01), which are paid for and placed on
the Premises by Tenant from time to time (other than those which are
replacements for fixtures originally paid for by Landlord) will remain the
property of Tenant.
SECTION
16.
PARKING
AREAS
16.01 Tenant
and its agents, employees, customers, licensees and invitees shall have the
non-exclusive right to use in common with Landlord and all other tenants and
occupants of the Building and their respective agents, employees, customers,
licensees and invitees, the Common Area parking and loading dock facilities,
if
any, on the Land, and all driveways, entrances and exits located within the
Project necessary to provide a means of ingress and egress to and from the
Premises. Such use of parking facilities shall be subject to, and consistent
with, the Rules and Regulations of the Project (as set forth in Exhibit B),
together with such reasonable modifications and additions as may be made thereto
during the term of this Lease. Landlord shall designate the number of parking
spaces set forth in Paragraph 1.01(i) in the parking lot or
parking garage
of the
Project for the exclusive use of Tenant (the “Tenant's Designated Parking
Spaces”). Tenant shall pay Landlord, as additional rent on each Rent Day, an
amount set forth in Section 1.01(i). Such
sums may be increased by Landlord from time to time by the delivery of thirty
(30) days prior written notice to Tenant. Within thirty (30) days of receipt
of
such notification, Tenant may: (i) accept such increase; or (ii) reject such
increase for all or any of its exclusive spaces, in which event Tenant's
exclusive parking rights for such spaces shall terminate. If Tenant accepts
such
increase or fails to reject such increase within the thirty (30) day period,
then commencing with the next Rent Day following Landlord's notice, the amount
of additional rent payable hereunder shall be increased
accordingly.
Notwithstanding anything contained herein to the contrary, Landlord shall have
the right to relocate Tenant's Designated Parking Spaces within the parking
lot
of the Project
to a
place with is not materially farther away from the primary entrance to the
Building,
and
Landlord shall have the right to designate other parking spaces in the parking
lot for the exclusive use of others. Tenant agrees to be bound by parking
regulations in effect at the Project, together with reasonable modifications
or
additions as may be necessary during the term of this Lease, as more fully
described in Exhibit "B", attached hereto and made part
hereof.
SECTION
17.
NOTICE
OR DEMANDS
17.01 All
bills, notices, requests, statements, communications, or demands (collectively,
"notices or demands") to or upon Landlord or Tenant desired or required to
be
given under any of the provisions hereof must be in writing. Any such notices
or
demands from Landlord to Tenant will be deemed to have been duly and
sufficiently given if a copy thereof has been personally delivered, mailed
by
United States certified mail, return receipt requested, postage prepaid, or
sent
via overnight courier service to Tenant at the address of the Premises or at
such other address as Tenant may have last furnished in writing to Landlord
for
such purpose. Any such notices or demands from Tenant to Landlord will be deemed
to have been duly and sufficiently given if delivered to Landlord in the same
manner as provided above at the address set forth at the heading of this Lease
or at the address last furnished by written notice from Landlord to Tenant.
The
effective date and the delivery date of such notice or demand will be deemed
to
be the time when it is personally delivered, three (3) days after it is mailed
or the day after it is sent via overnight courier as herein
provided.
SECTION
18.
BREACH;
INSOLVENCY; RE-ENTRY
18.01 Each
of
the following shall constitute an Event of Default under this Lease:
(i) Tenant's failure to pay rent or any other sum payable hereunder
for
more than five (5) business days after written notice of such failure has been
delivered to Tenant (but if one notice has been given in any twelve (12) month
period, no further notice shall be required during such twelve (12) month
period) when
due;
(ii) Tenant's failure to perform any of the non-monetary terms, conditions
or covenants of this Lease to be observed or performed by Tenant for more than
seven
(7) thirty
(30) days
after written notice of such failure shall have been delivered to Tenant
except
in connection with a breach which cannot be remedied or cured within said thirty
(30) day period, in which event the time of Tenant within which to cure such
breach shall be extended for such time as shall be necessary to cure the same,
but only if Tenant, within such thirty (30) business day period, shall have
commenced and diligently proceeded to remedy or cure such breach;
(iii) if Tenant is named as the debtor in any bankruptcy proceeding, or
similar debtor proceeding, and any such proceeding, if involuntary, is not
dismissed or set aside within sixty (60) days from the date thereof;
(iv) if Tenant makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement with creditors or if a receiver
of
any property of Tenant in or upon the Premises is appointed in any action,
suit
or proceeding by or against Tenant, or if Tenant shall admit to any creditor
or
to Landlord that it is insolvent, or if the interest of Tenant in the Premises
shall be sold under execution or other legal process; or (v) if Tenant
shall abandon the Premises, vacate the Premises for a period of more than
fifteen (15) consecutive days, or suffer this Lease to be taken under any writ
of execution. Upon the occurrence of any Event of Default, Landlord, in addition
to any other rights and remedies it may have hereunder or by law, shall have
the
immediate right of re-entry, and may remove all persons and property from the
Premises and it shall have the right to abandon or otherwise dispose of such
property in any way it may deem fit which is not in contravention of applicable
law. In addition, Landlord shall have the right, but not the obligation, to
store all or some of the property which may have been removed in a public
warehouse or elsewhere at the cost of, and for the account of, Tenant, all
without service of notice or resort to legal process and all without being
deemed guilty of trespass or becoming liable for any loss or damage which may
be
occasioned thereby.
18.02 In
the
event Landlord shall elect to re-enter the Premises in accordance with
Paragraph 18.01, or should Landlord take possession of Premises pursuant to
legal proceedings or pursuant to any notice provided by law, Landlord may either
terminate this Lease or may from time to time without terminating this Lease,
make such alterations and repairs as Landlord may deem necessary in order to
relet the Premises, and relet the Premises or any part thereof for any such
term
or terms (which may be for a term extended beyond the term of this Lease) and
at
such rental or rentals, and upon such other terms and conditions as Landlord
may
deem advisable.
18.03 Upon
the
reletting of the Premises in accordance with Paragraph 18.02, all rentals
received by Landlord from such reletting shall be applied in the following
order
of priority: (a) to the payment of any additional rent payable as provided
in Section 5 hereof, including interest and late charges; (b) to the
payment of any other indebtedness other than rent due hereunder from Tenant
to
Landlord; (c) to the payment of the actual costs and expenses of obtaining
possession, restoring and repairing the Premises and the actual costs and
expenses of reletting, including brokerage and reasonable
attorneys' fees; and (d) to the payment of any rent and other sums due and
unpaid under this Lease. The remainder, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and payable
hereunder. If the rental received from such reletting during any month is less
than that to be paid during that month by Tenant hereunder, Tenant shall pay
any
such deficiency to Landlord monthly. No such re-entry or taking possession
of
the Premises or any part thereof by Landlord shall be construed as an election
on its part to terminate this Lease unless a written notice of such intention
is
given to Tenant or unless the termination thereof is decreed by a court of
competent jurisdiction.
18.04 Notwithstanding
any reletting of the Premises without termination in accordance with
Paragraph 18.02, Landlord may at any time after the occurrence of any Event
of Default, terminate this Lease and, in addition to any other remedies Landlord
may have, Landlord may recover from Tenant all damages it may incur by reason
of
Tenant's breach, including, without limitation, the reasonable cost of
recovering and reletting the Premises and reasonable attorneys' fees incidental
thereto and the worth at the time of the termination of the amount of rent
and
other charges payable hereunder for the remainder of the Term, all of which
amounts shall be immediately due and payable by Tenant to Landlord.
18.05 In
case
suit shall be brought or an attorney otherwise consulted, for recovery of
possession of the leased premises, for the recovery of rent or any other amount
due under the provisions of this Lease, or because of the breach of any other
covenant herein contained on the part of either
Landlord or Tenant
to
be kept and performed, or any other action against
Tenant against
one of the parties by
the
other Landlord,
or
because of any claimed breach of this Lease by either
party Landlord
or any
other action against one
of
the parties by the other Landlord
by Tenant, (and Landlord shall be the prevailing party),
Tenant the
non-prevailing party shall pay to the prevailing party
shall pay to Landlord
all
expenses incurred therefor, including a reasonable attorneys’ fee. In addition,
Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by Landlord or Tenant against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord to Tenant, the use or occupancy of the Premises by
Tenant or any person claiming through or under Tenant, any claim of injury
or
damage, and any emergency or other statutory remedies; provided, however, the
foregoing waiver shall not apply to any action for personal injury or property
damage.
SECTION
19.
SURRENDER
OF PREMISES ON TERMINATION
19.01 At
the
expiration (or earlier termination) of the Term hereof, Tenant will surrender
the Premises (including
the Tenant Improvements shown on the Plans, attached hereto as Exhibit
A)
broom
clean and in as good condition and repair as they were at the time Tenant took
possession, reasonable wear and tear and
insured casualty
excepted, and promptly upon surrender will deliver all keys and building
security cards for the Premises to Landlord at the place then fixed for the
payment of rent. At the expiration of the Lease term, Tenant will, at its own
cost and expense, repair or pay the cost of restoration with respect to any
damage to the Premises arising from the removal of any trade fixtures or similar
items. Tenant shall have no rights of removal as to property affixed or
otherwise placed on or in the Premises by or at the expense of Landlord, its
predecessors, successors or assigns,
provided, however, upon expiration of the Term of this Lease other than in
accordance with Section D5, Tenant may remove the movable equipment with is
funded with that portion of the Tenant Improvement Allowance with may be used
for ancillary equipment acquisition is in accordance with Section D.1 below
.
All
costs and expenses incurred by Landlord in connection with repairing or
restoring the Premises to the condition called for herein, together with the
costs, if any, of removing any property of Tenant together with any property
designated by Landlord pursuant to Section 10.02, left on the Premises, shall
be
paid by Tenant on demand. Tenant shall remove all property of Tenant and make
all repairs necessitated thereby at its own cost, as directed by Landlord.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Term of this Lease.
SECTION
20.
PERFORMANCE
BY LANDLORD OF THE COVENANTS OF TENANT
20.01 If
Tenant
fails to pay any sum of money, other than Base Rent, required to be paid
hereunder or fails to perform any act on its part to be performed hereunder,
including, but not limited to, the performance of all covenants pertaining
to
the condition and repair of the Premises pursuant to Section 10 above, and
if
such failure shall not otherwise be cured within the time, if any, provided
herein, then upon two (2) days notice for
emergency repairs and ten (10) days notice for non-emergency repairs
Landlord
may (but shall not be required to), without waiving or releasing Tenant from
any
of Tenant's obligations, make any such payment or perform any such other act.
All sums so paid or incurred by Landlord and all incidental costs, including,
but not limited to, the cost of repair, maintenance or restoration of the
Premises, shall be deemed additional rental and, together with interest thereon
computed at the rate set forth in Section 5 hereof from the date of
the
notice of
payment by Landlord until the date of repayment by Tenant to Landlord, shall
be
payable to Landlord on demand. On default in such payment, Landlord shall have
the same remedies as on default in payment of rent. The rights and remedies
granted to Landlord under this Section 20 shall be in addition to, and not
in
lieu of, all other remedies, if any, available to Landlord under this Lease
or
otherwise, and nothing contained herein shall be construed to limit such other
remedies of Landlord with respect to any matters covered herein.
SECTION
21.
SUBORDINATION;
ESTOPPEL CERTIFICATES
21.01 This
Lease is subject and subordinate to all ground leases, underlying leases, and
mortgages, if any, now or hereafter made, which may now or hereafter affect
the
Project and to all renewals, modifications, consolidations, replacements and
extensions of any such ground leases, underlying leases and mortgages. This
clause shall be self-operative and no further instrument of subordination shall
be necessary. Notwithstanding the foregoing, Landlord reserves the right to
declare this Lease prior to the lien of any ground lease, underlying lease,
or
mortgage now or hereinafter placed upon the real property of which the Premises
are a part by recording a written notice of such priority with the register
of
deeds. Tenant covenants and agrees to execute and deliver, within ten (10)
days
after requested by Landlord, such further instrument or instruments
subordinating this Lease (or declaring the Lease prior and superior) to any
lease or proposed lease or to the lien of any such mortgage or mortgages as
shall reasonably be desired by Landlord, any lessor or proposed lessor, and
any
mortgagees or proposed mortgagees.
21.02 In
the
event any proceedings are brought for foreclosure of, or in the event of the
conveyance by deed in lieu of foreclosure of, or in the event of the exercise
of
the power of sale under, any mortgage made by Landlord covering the Premises,
Tenant hereby attorns to the new owner, and covenants
and agrees to execute any instrument in writing reasonably satisfactory to
the
new owner whereby Tenant attorns to such successor in interest and recognizes
such successor as Landlord under this Lease.
21.03 Tenant,
within ten (10) days after request (at any time or times) by Landlord, will
execute and deliver to Landlord an estoppel certificate, in form reasonably
acceptable to Landlord, certifying: (i) to the Commencement Date and
expiration date of the Term; (ii) that this Lease is unmodified and in full
force and effect, or is in full force and effect as modified, stating the
modifications; (iii) that Tenant does not claim that Landlord is in default
in any way, or listing any such claimed defaults and that Tenant does not claim
any rights of setoff, or listing such rights of setoff; (iv) to the amount
of monthly rent and other sums due hereunder as of the date of the certificate,
the date to which the rent has been paid in advance, and the amount of any
security deposit or prepaid rent; (v) that Tenant agrees to provide any
mortgagee of Landlord with notice of any default by Landlord hereunder and
give
such mortgagee the opportunity to cure such default within sixty
(60) thirty
(30) days
of
such mortgagee's receipt of notice of such default; and (vi) such other
matters as may be reasonably requested by Landlord. Any such certificate may
be
relied upon by any prospective purchaser, mortgagee or lessor of the Premises
or
any part thereof.
SECTION
22.
QUIET
ENJOYMENT
22.01 Landlord
agrees that at all times when no Event of Default exists under this Lease,
Tenant's quiet and peaceable enjoyment of the Premises, in accordance with
and
subject to the terms of this Lease, will not be disturbed or interfered with
by
Landlord or any person claiming by, through, or under Landlord.
SECTION
23.
HOLDING
OVER
23.01 If
Tenant
remains in possession of the Premises after the expiration of this Lease without
executing a new lease, Landlord shall have the right to deem Tenant to be
occupying the Premises as a tenant from month to month and the Base Rent for
each month will be
one
hundred fifty percent (150%) of the regular monthly installment of Base Rent
payable for the last month of the Term of this Lease for the first
two
(2) six
(6)
months after expiration and
two
hundred percent (200%) of the greater
of: (a)
the
regular monthly installment of Base Rent payable for the last month of the
Term
of this Lease;
or (b) the then prevailing market rates of rent for the Project determined
by
Landlord in its sole and absolute discretion.
This
provision shall not preclude Landlord from terminating the lease or recovering
any and all damages Landlord may incur as a result of Tenant's failure to timely
deliver possession of the Premises to Landlord or from exercising any other
right or remedy it may have hereunder.
SECTION
24.
REMEDIES
NOT EXCLUSIVE; WAIVER
24.01 Each
and
every of the rights, remedies and benefits of Landlord provided by this Lease
are cumulative, and are not exclusive of any other of said rights, remedies
and
benefits, or of any other rights, remedies and benefits allowed by
law.
24.02 The
failure of Landlord to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this Lease or of any of
the
rules or regulations set forth or hereafter adopted by Landlord, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt
by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach and no provision of this Lease
shall
be deemed to have been waived by Landlord unless such waiver be in writing
signed by Landlord. One or more waivers of any covenant or condition by either
party shall not be construed as a waiver of a further or subsequent breach
of
the same covenant or condition, and the consent or approval by Landlord to
or of
any act by Tenant requiring Landlord's consent or approval will not be deemed
to
waive or render unnecessary Landlord's consent or approval to or of any
subsequent similar act by Tenant. No payment by Tenant or receipt by Landlord
of
a lesser amount than the monthly rental herein stipulated shall be deemed to
be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord shall accept such check
or payment without prejudice to Landlord's right to recover the balance of
such
rent or pursue any other remedy provided in this Lease.
SECTION
25.
WAIVER
OF SUBROGATION
25.01 Landlord
and Tenant hereby release each other and their respective agents and employees
from any and all liability to each other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by or resulting from risks insured against under the property insurance
for loss, damage or destruction by fire or other casualty carried by the parties
hereto and which was in force at the time of any such loss or damage or which
would have been so covered had the insurance required hereunder been maintained;
provided, however, that this release shall be applicable only with respect
to
loss or damage occurring during such time as the releasor's policies of
insurance contain a clause or endorsement to the effect that any such release
shall not adversely affect or impair such policies or prejudice the right of
the
releasor to recover thereunder. Landlord and Tenant each agrees that it will
require its property insurance carriers to include in its policy such a clause
or endorsement. However, if such endorsement cannot be obtained, or shall be
obtainable only by the payment of an additional premium charge above that which
is charged by companies carrying such insurance without such waiver of
subrogation, then the party undertaking to obtain such waiver shall notify
the
other party of such fact and such other party shall have a period of ten (10)
days after the giving of such notice to agree in writing to pay such additional
premium if such policy is obtainable at additional cost (in the case of Tenant,
pro rate in proportion of Tenant’s rentable area to the total rentable area
covered by such insurance); and if such other party does not so agree or the
waiver shall not be obtainable, then the provisions of this Section 25.01 shall
be null and void as to the risks covered by such policy for so long as either
such waiver cannot be obtained or the party in whose favor a waiver of
subrogation is desired shall refuse to pay the additional premium. If the
release of either Landlord or Tenant, as set forth in the second sentence of
this Section 25.01, shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not released,
but no action or rights shall be sought or enforced against such party unless
and until all rights and remedies against the other’s insurer are exhausted and
the other party shall be unable to collect such insurance proceeds. The waiver
of subrogation referred to above shall extend to the agents and employees of
each party (including, as to Landlord, the Manager), but only if and to the
extent that such waiver can be obtained without additional charge (unless such
party shall pay such charge). Nothing contained in this Section 25.01 shall
be
deemed to relieve either party from any duty imposed elsewhere in this Lease
to
repair, restore and rebuild.
Notwithstanding
any other term or provision of this Lease to the contrary, Landlord and Tenant
hereby release each other and their respective agents and employees from any
and
all liability to each other or anyone claiming through or under them by way
of
subrogation or otherwise for any loss or damage to property caused by or
resulting from risks insured against under the property insurance for loss,
damage or destruction by fire or other casualty carried by the parties hereto
and which was in force at the time of any such loss or damage, or which would
have been so covered had the insurance required hereunder been maintained.
If
the release of either Landlord or Tenant, as set forth in this Section 25.01,
shall contravene any law with respect to exculpatory agreements, the liability
of the party in question shall be not released, but no action or rights shall
be
sought or enforced against such party. The waiver of subrogation referred to
above shall extend to the agents and employees of each party (including as
to
Landlord, the Manager). Nothing contained in this Section 25.01 shall be deemed
to relieve Landlord from any duty imposed elsewhere in this Lease to repair,
restore and rebuild. Landlord and Tenant agree that all casualty insurance
that
they each maintain shall contain full waivers of subrogation, and that the
mutual release and waivers of subrogation granted by each party hereto to the
other shall be fully effective, for the benefit of each party, and their agents,
employees, sublessees, successors and assigns whether or not the insurance
required to be maintained hereunder is, in fact, maintained or in
force.
SECTION
26.
RIGHT
TO SHOW PREMISES
26.01 Landlord
may,
with
reasonable notice,
show the
Premises to prospective tenants and brokers for
the Premises, no sooner than six (6) months prior to the expiration (or early
termination) of the Initial Term hereof,
and may
display signs about the Project and elsewhere advertising the availability
of
the Premises. Landlord
shall use reasonable efforts not to disrupt, disturb or interfere with the
conduct of Tenant’s business during such entry.
SECTION
27.
INDEMNIFICATION
27.01 Tenant
at
its expense will defend, indemnify, save and hold harmless Landlord, its
invitees, licensees, servants, agents, employees, affiliated entities and
contractors, from and against any loss, damage, claim of damage, liability
or
expense, (including attorney fees) to or for any person or property, whether
based on contract, tort, negligence or otherwise, arising directly or indirectly
out of or in connection with the condition of the Premises, the occupation,
use
or misuse thereof by Tenant or any other person, the acts or omissions of
Tenant, its invitees, licensees, servants, agents, employees or contractors,
the
failure of Tenant to comply with any provision of this Lease, or any event
on or
relating to the Premises, whatever the cause or any litigation or other
proceeding by or against Tenant to which Landlord is made a party, other than
the intentional,
willful or malicious negligent
act
of
Landlord
which causes an injury which was neither either expected or intended by Landlord
when it performed the act in question.
The
provisions of this Section 27.01 will survive the expiration or termination
of
this Lease.
27.02 Landlord,
at its expense, will defend, indemnify, save and hold harmless Tenant, its
licensees, servants, agents, employees, affiliated entities and contractors:
from and against any loss, damage, claim of damage, liability or expense
(including attorneys’ fees) to or for any person or property, whether it is
based on contract, tort, negligence or otherwise, or arising directly or
indirectly out of or in connection with the condition of the Common Areas or
the
other parts of the Project not leased to or occupied by others, the use or
misuse thereof by Landlord, its licensees, servants, agents, employees, or
contractors, the failure of Landlord to comply with the terms of this Lease,
or
any event on or relating to the Common Areas or the other parts of the Project
not leased to or occupied by others, whatever the cause, or any litigation
or
other proceeding by or against Landlord to which Tenant is made a party, other
than the intentional,
willful, or malicious or negligent
act of Tenant which
causes injury and/or damages.
Notwithstanding anything to the contrary, the provisions set forth in this
Section 27.02 shall not apply for any time period where Tenant has contracted
for use or occupancy, under separate agreement and on a temporary basis, any
portion of the Common Areas or any portion of the Project other than the
Premises. The provisions of this indemnification shall survive expiration and
termination of this Lease.
SECTION
28.
DEFINITION
OF LANDLORD; LANDLORD'S LIABILITY
28.01 The
term
"Landlord" as used in this Lease so far as covenants, agreements, stipulations
or obligations on the part of Landlord are concerned is limited to mean and
include only the owner or owners of the Premises at the time in question, and
in
the event of any transfer or transfers of the title to such fee 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 Landlord contained in this Lease
thereafter to be performed so
long as such transferee assumes the obligations of Landlord
hereunder.
28.02 Landlord
shall
not be in default or breach hereof, and Landlord shall have no liability if
This
Lease and the obligation of Tenant to pay rent hereunder and perform all of
the
other covenants and agreements hereunder on the part of Tenant to be performed
shall in no way be affected, impaired or excused because
Landlord
is unable to fulfill any of its obligations under this Lease or otherwise
is
unable to supply or is delayed in supplying any service expressly or implied
to
be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed
in
supplying any equipment or fixtures
if
Landlord is prevented or delayed from so doing by reasons of a
“Force Majeure”. A Force Majeure shall be shortages
of materials, acts of God, governmental restrictions, strike or labor troubles
or any cause beyond Landlord's reasonable control including, but not limited
to,
government preemption in connection with a national emergency or by reason
of
any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which
have
been or are affected by war or other emergency.
SECTION
29.
SECURITY
DEPOSIT AND SECURITY INTEREST
29.01 Upon
execution hereof, Tenant shall deliver to Landlord cash in the amount set forth
in Paragraph 1.01(j), above, which Landlord is to retain as security for the
faithful performance of all the covenants, conditions and agreements of this
Lease, but in no event shall Landlord be obligated to apply the same upon rents
or other charges in arrears or upon damages for Tenant's failure to perform
the
said covenants, conditions, and agreements; Landlord may so apply the security
at its option, and Landlord's right to the possession of the Premises for
nonpayment of rent or for any other reason shall not in any event be affected
by
reason of the fact that Landlord holds this security. The said sum, if not
applied toward the payment of rent in arrears or toward the payment of damages
suffered by Landlord by reason of Tenant's breach of the covenants, conditions
and agreements of this Lease, is to be returned, without interest thereon,
to
Tenant when this Lease is terminated, and fully performed by Tenant, according
to these terms, and in no event is the said security to be returned until Tenant
has vacated the Premises and delivered possession to Landlord.
29.02 In
the
event that Landlord repossesses the Premises because of Tenant's default or
because of Tenant's failure to carry out the covenants, conditions and
agreements of this Lease, Landlord may apply the said security upon all damages
suffered to the date of said repossession and may retain the said security
to
apply upon such damages as may be suffered or shall accrue thereafter by reason
of Tenant's default or breach. Landlord shall not be obligated to keep the
said
security as a separate fund, but may mix the said security with its own funds.
In the event Landlord shall use any part of the Security Deposit, Tenant shall,
upon demand, deposit with Landlord the full amount so used, in order that
Landlord shall have the full Security Deposit on hand at all times during the
Term of this Lease. In the event of a sale or lease of the Building and the
transfer of the Security Deposit to the purchaser or lessee, Landlord shall
be
released from all liability for the return of the Security Deposit. Tenant
shall
have no legal power to assign or encumber the Security Deposit herein
described.
SECTION
30.
RULES
AND REGULATIONS
30.01 Tenant
shall faithfully abide by and observe the rules and regulations for the
Building, a copy of which is attached hereto as Exhibit B and made a part
hereof, and, after notice thereof, all additions thereto and modifications
thereof of uniform applicability from time to time promulgated in writing by
Landlord.
SECTION
31.
SIGNS
AND ADVERTISING
31.01 No
signs,
lighting, lettering, pictures, notices, advertisements, shades, awnings or
decorations will be displayed, used or installed by Tenant except as approved
in
writing by Landlord,
which approval shall not be unreasonably withheld or delayed.
All
such materials displayed in and about the Premises will be such only as to
advertise the business carried on upon the Premises and Landlord will control
the location, character and size thereof. Tenant shall not cause or permit
to be
used any advertising materials or methods which are reasonably objectionable
to
Landlord or to other tenants of the Building, including without limiting the
generality of the foregoing: loudspeakers, mechanical or moving display devices,
unusually bright or flashing lights and similar devices the effect of which
may
be seen or heard from outside the Premises. Tenant shall not solicit business,
sell or display merchandise, or distribute hand bills or other advertising
matter in the parking area or other Common Areas.
SECTION
32.
GENERAL
32.01 If,
by
reason of the occurrence of unavoidable delays due to acts of God, governmental
restrictions, strikes, labor disturbances, shortages of materials or supplies
or
for any other cause or event beyond a
party's reasonable
control, Landlord or
Tenant is
unable
to furnish or is delayed in furnishing any service required by either
party under
the
provisions of this Lease, or Landlord or
Tenant
is
unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
required to be performed or made under this Lease, or is unable to fulfill
or is
delayed in fulfilling any of their
respective
other
obligations under this Lease
excluding, however, Tenant obligation to pay Base Rent, Operating Expenses,
real
Estate Taxes, Additional Rent or any other sum due hereunder,
no such
inability or delay shall constitute a
default, breach or an
actual
or constructive eviction in whole or in part, or, except as otherwise expressly
provided herein, entitle Tenant to any abatement or diminution of rental or
other charges due hereunder or otherwise relieve Tenant or
Landlord from
any
of its obligations under this Lease, or impose any liability upon Landlord
or
its agents by reason of inconvenience or annoyance to Tenant, or injury to
or
interruption of Tenant's business, or otherwise.
32.02 This
Lease is being entered into and executed in the State of Michigan, and all
questions with respect to the construction of this Agreement and the rights
and
liabilities of the parties shall be determined in accordance with the provisions
of the laws of the State of Michigan.
32.03 Many
references in this Lease to persons, entities and items have been generalized
for ease of reading. Therefore, references to a single person, entity or item
will also mean more than one person, entity or thing whenever such usage is
appropriate (for example, "Tenant" may include, if appropriate, a group of
persons acting as a single entity, or as tenants-in-common). Similarly, pronouns
of any gender should be considered interchangeable with pronouns of other
genders.
32.04 Section
headings appearing in this Lease are for convenience only. They do not define,
limit or construe the contents of any paragraphs or clauses contained
herein.
32.05 Landlord
reserves the right should
it become necessary to comply with required laws and regulations, or to assure
the health, safety and welfare of Tenant or other occupants of the
building
to
relocate Tenant in other comparable
contiguous space
in
the Building upon not less than sixty (60) days prior written notice to Tenant.
Landlord shall pay the cost of moving Tenant to new space,
and
the cost or reinstalling all of Tenant’s fixtures and equipment so that the new
space is fully functional for the conduct of Tenant’s business as conducted in
the old space.
If
Tenant does not wish to accept such relocation, Tenant may object thereto by
written notice to Landlord within ten (10) days after the notice from Landlord.
In the event Tenant fails to object within such ten (10) day period, Tenant
shall be deemed to have accepted the relocation. In the event Tenant so objects,
Landlord may rescind the notice of intention to relocate Tenant or may reaffirm
said intention, in which event Tenant may terminate this Lease by written notice
to Landlord within five (5) days after the affirmation notice from Landlord.
In
the event Tenant fails to notify Landlord of its termination within such five
(5) day period, it shall be deemed to have accepted the relocation. If Tenant
terminates this Lease pursuant this paragraph, Tenant must vacate the Premises
within thirty (30) days following Tenant's notice to Landlord of
termination.
As
to any relocation of Tenant to substitute space, such substitute space shall
(i)
be comparable to the Premises, (ii) be contiguous to itself (iii) contain
substantially the same tenant improvements, of equal or better quality, to
those
in the Premises, and (iv) be as suitable as the Premises for the conduct of
Tenant’s business, and such substitute space and the Premises shall be
concurrently available to Tenant as necessary to provide for continuity in
Tenant’s business and to permit relocation of Tenant’s equipment and facilities
with reasonable minimal interruption in such business.
32.06 The
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, successors, administrators and executors provided, however, that
no assignment by, from, through, or under Tenant in violation of any of the
provisions hereof shall vest in the assigns any right, title, or interest
whatsoever. All provisions of this Lease are and will be binding on the
successors and permitted assigns of Landlord and Tenant.
32.07 Time
shall be and is of the essence in this Lease and with respect to the performance
of all obligations of Landlord and Tenant hereunder.
32.08 Any
services which Landlord is required to furnish pursuant to the provisions of
this Lease may, at Landlord's option, be furnished from time to time, in whole
or in part, by employees of Landlord or by the managing agent of the Project
or
by one or more third persons.
32.10 Neither
Landlord nor Landlord's agents have made any representations or promises with
respect to the physical condition of the Building, the Land or the Premises,
or
with respect to the rents, leases, expenses of operation or any other matter
or
thing affecting or related to the Premises except as expressly set forth herein;
and no rights, easements or licenses are acquired by Tenant by implication
or
otherwise except as expressly set forth in the provisions of this
Lease.
32.11 Annually
and at any other time, upon
request, Tenant
shall promptly furnish Landlord financial statements reflecting Tenant's and
any
Guarantor's current financial condition. All such financial statements shall
be
in such form and contain such detail as Landlord shall reasonably request.
Any
financial statement, or any other information given Landlord by Tenant under
this Section 32.11 shall remain confidential.
32.12 In
case
any provision of this Lease or any agreement or instrument executed in
connection herewith shall be invalid, illegal or unenforceable, such provision
shall be enforced to the fullest extent permitted by applicable law, and the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby. This Lease shall
not be construed more strictly against one party than against the other, merely
by virtue of the fact that it may have been prepared by counsel for one of
the
parties, it being recognized that both Landlord and Tenant have contributed
substantially and materially to the preparation of this Lease.
32.13 This
Lease can be modified or amended only by a written agreement signed by Landlord
and Tenant. This Lease and the Exhibits attached hereto and forming a part
hereof set forth all of the covenants, agreements, stipulations, promises,
conditions and understandings between Landlord and Tenant concerning the
Premises, and there are no covenants, agreements, stipulations, promises,
conditions or understanding, either oral or written, between them other than
set
forth herein or therein.
32.14 Tenant
will not record this Lease or a memorandum hereof, and will not otherwise
disclose the terms of this Lease to anyone other than its attorneys, accountants
or employees who need to know of its contents in order to perform their duties
for Tenant. Any other disclosure will be an Event of Default under the Lease.
Tenant agrees that Landlord shall have the right to publish a "tombstone" or
other promotional description of this Lease.
32.15 Except
as
disclosed in writing to Landlord, Tenant represents and warrants to Landlord
that there are no claims for brokerage commissions,
other than ▇▇▇▇▇▇▇▇ Real Estate Group,
or
finder's fees in connection with this Lease as a result of the contracts,
contacts or actions of Tenant, and Tenant agrees to indemnify Landlord and
hold
it harmless from all liabilities arising from any such claim arising from an
alleged agreement or act by Tenant (including, without limitation, the cost
of
counsel fees in connection therewith); from
other than ▇▇▇▇▇▇▇▇ Real Estate Group, such
agreement to survive the termination of this
Lease. Landlord agrees to be responsible for paying all commissions payable
to
▇▇▇▇▇▇▇▇ Real Estate Group in connection with this
Lease.
32.16 The
matters set forth on Exhibit D, Special Provisions, if any, are hereby accepted
and agreed to between Landlord and Tenant and incorporated herein by
reference.
IN
WITNESS WHEREOF Landlord and Tenant have executed this Lease as of the date
and
year first above written.
LANDLORD: TENANT:
|
AMERICAN
CENTER LLC,
a
Michigan Limited Liability Company
|
LDMI
TELECOMMUNICATIONS, INC.
a
Michigan corporation
|
|
|
By:
Southfield Office Manager, Inc.
|
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Printed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
Secretary Its:
CFO
EXHIBIT
A
SPACE
PLAN
Approved
by Tenant:
TENANT:
LDMI
TELECOMMUNICATIONS, INC.,
a
Michigan corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
CFO
EXHIBIT
B
RULES
AND REGULATIONS OF THE PROJECT
Tenant
agrees for itself, its employees, agents, clients, customers, licensees,
invitees and guests, to comply fully with the following rules and regulations
and with such reasonable modifications thereof and additions thereto as Landlord
may make for the Project. All rules and regulations set forth in this
Exhibit B shall be in addition to, and shall in no way limit, the
provisions of the Lease.
1. The
Common Areas of the Project shall not be used by Tenant for any purpose other
than those for which they are intended or designated.
2. Landlord
has the right to reasonably
control
access to the Project and refuse admittance to any person or persons without
satisfactory identification or a pass issued by Tenant during hours reasonably
determined by Landlord.
3. No
person
shall disturb other occupants of the Building by making loud or disturbing
noises.
4. Soliciting,
peddling and canvassing is prohibited in the Project and Tenant shall cooperate
to prevent the same. No vending machine shall be operated in the Building by
any
tenant without the prior written consent of Landlord.
5. All
deliveries and removals of furniture, equipment or other bulky items must take
place after notification to Landlord, during such hours and in such manner
as
Landlord shall reasonably determine. Tenant shall be responsible for all damage
or injury resulting from the delivery or removal of all articles into or out
of
the Project or the Premises. No load shall be placed on the floors or in
elevators in excess of the limits which shall be established by
Landlord.
6. Tenant
shall not use any equipment emitting noxious fumes or offensive odors unless
they are properly vented at Tenant's expense.
7. Nothing
shall be attached to the interior or exterior of the Building without the prior
written consent of Landlord.
8. No
sign
or other representation shall be placed on the interior or exterior of the
Building without prior written consent of Landlord,
which consent shall not be unreasonably withheld.
9. No
hazardous articles, bicycles, vehicles or animals of any kind (other than
wheelchairs
and
motorized scooters or other vehicles utilized by handicapped
person
and
seeing-eye dogs) shall be brought into or kept in or about the Building without
the prior consent of Landlord.
10. No
marking, painting, drilling, boring, cutting or defacing of the walls, floors
or
ceilings of the Building, other than that which is reasonably necessary for
the
hanging of art work, diplomas and similar objects which do not require any
material alteration to any wall, floor or ceiling, shall be permitted without
the prior written consent of Landlord.
11. The
electrical system and lighting fixtures in the Building shall not be altered
or
disturbed in any manner without the prior written consent from Landlord. Any
alterations or additions must be performed by licensed personnel authorized
by
Landlord.
12. The
toilets and other plumbing fixtures shall not be used for any purpose other
than
that for which they are designed. No sweepings, rubbish or other similar
materials or substances shall be deposited therein.
13. Smoking
is prohibited in the elevator(s), hallways, corridors, stairs, lobbies and
other
interior
common
areas of the Project unless clearly designated to the contrary by
Landlord.
14. Tenant
shall not waste electricity, water or air-conditioning, and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air-conditioning. Tenant shall not adjust any controls other than
room thermostats installed for Tenant's use. Tenant shall not tie, wedge or
otherwise fasten open any water faucet or outlet. Tenant shall keep all corridor
doors closed.
15. Tenant
assumes full responsibility for protecting the Premises from theft, burglary,
robbery and pilferage. Except during Tenant's normal business hours, Tenant
shall keep all doors to the Premises locked and other means of entry to the
Premises closed and secured.
16. Tenant
or
Tenant's employees shall not distribute literature, flyers, handouts or
pamphlets of any kind in any of the common areas of the Project without the
prior written consent of Landlord.
17. Tenant
shall not sell or prepare any food or beverages in or from the Premises without
Landlord's prior written consent,
except for coffee, tea, soft drinks, candy, soup and microwave foods prepared
for consumption by Tenant, Tenant’s servants, employees, agents, clients,
customers, licensees, invitees, visitors, and contractors.
18. Tenant
shall not permit the use of any apparatus for sound production or transmission
in such manner that the sound so transmitted or produced shall be audible or
vibrations therefrom shall be detectable beyond the Premises.
19. Tenant
shall keep all electrical and mechanical apparatus free of vibration, noise
and
air waves which may be transmitted beyond the Premises.
20. No
floor
covering shall be affixed to any floor in the Premises by means of glue or
other
adhesive without Landlord's prior written consent,
which consent shall not be unreasonably withheld.
21. Tenant
shall not use the name of the Building for any purpose other than that of the
business address of Tenant (which it may do, at its own risk, in the event
the
name of the Building changes), and shall not use any picture or likeness of
the
Building in any circulars, notices, advertisements or
correspondence.
22. Tenant
shall not obstruct sidewalks, entrances, passages, courts, corridors,
vestibules, halls, elevators and stairways in or about the Building, nor shall
Tenant place objects against glass partitions, doors or windows which would
be
unsightly from the Building's corridors, or from other areas of the
Building.
23. Tenant
shall not make any room-to-room canvass to solicit business from other tenants
of the Building.
24. No
additional locks or similar devices shall be attached to any door and no locks
shall be changed without Landlord's prior written consent,
which consent shall not be unreasonably withheld.
Upon
termination of this Lease or of Tenant's possession of the Premises, Tenant
shall surrender all keys for door locks and other locks in or about the Premises
and shall make known to Landlord the combination of all locks, safes, cabinets
and vaults which are not removed by Tenant.
25. Tenant
shall not install or operate any machinery or mechanical devices of a nature
not
directly related to Tenant's ordinary use of the Premises without Landlord's
prior written consent.
26. Except
in the case of any emergency in which event prompt notice shall be given to
Landlord, Tenant
shall not employ any person to perform any cleaning, repairing, janitorial,
decorating, painting or other services or work in or about the Premises, except
with the approval of Landlord,
which approval shall not be unreasonably withheld or delayed.
27. Tenant
shall ascertain from Landlord the maximum amount of electrical current which
can
safely be used in the Premises, taking into account the capacity of the electric
wiring in the Building and the Premises and the needs of other tenants, and
shall not use more than such safe capacity. Landlord's consent to the
installation of electric equipment shall not relieve Tenant from the obligation
not to use more electricity than such safe capacity.
28. Tenant
shall not overload any floor or elevator and shall not install any heavy
objects, safes, business machines, files or other equipment without having
received Landlord's prior written consent as to size, maximum weight, routing
and locations thereof. Safes, furniture, equipment, machines and other large
or
bulky articles shall be brought through the Building and into and out of the
Premises at such times and in such manner as Landlord shall direct (including
the designation of elevator) and at Tenant's sole risk and responsibility.
Prior
to Tenant's removal of any such articles from the Building, Tenant shall obtain
written authorization therefore from Landlord.
29. Tenant
shall not in any manner deface or damage the Building.
30. Tenant
shall not bring into the Building or Premises inflammables such as gasoline,
kerosene, naphtha and benzine, or explosives or any other articles of
intrinsically dangerous nature.
31. Movement
into or out of the Building of furniture or office equipment, or dispatch or
receipt by Tenant of any merchandise or materials other than hand-delivered
packages, which requires the use of elevators or stairways or movement through
the Building entrances or lobby, shall be restricted to the hours designated
by
Landlord. Tenant assumes all risk of damage to any and all articles so moved,
as
well as injury to any person or property in such movement, and hereby agrees
to
indemnify Landlord against any loss resulting therefrom.
32. Landlord
shall not be responsible for any lost or stolen property, equipment, money
or
jewelry from the Premises or the public areas of the Building regardless of
whether such loss occurs when the Premises are locked.
33. The
Premises shall not be used for housing, lodging, sleeping or for any immoral
or
illegal purpose.
34. The
work
of the janitor or cleaning personnel shall not be hindered by Tenant after
5:30
p.m. and the windows may be cleaned at any time. Tenant shall provide adequate
waste and rubbish receptacles to prevent unreasonable cost to Landlord in
discharging its obligations regarding cleaning services.
35. Tenant
will refer all contractors or installation technicians performing
any work on the Premises or the systems thereof rendering
any service for Tenant
for
supervision and approval of Landlord,
which approval shall not be unreasonably withheld,
before
performance of any contractual services.
36. Parking
Regulations:
|
(i)
|
Cars
WILL NOT park in the designated "Reserved" spaces. There will be
no
parking in any area of the Project other than those areas clearly
marked
and defined for parking.
|
|
(ii)
|
Parking
will be on the basis of first-come, first-served except for Designated
Parking Spaces.
|
|
(iii)
|
Parkers
will be expected to park their cars in an orderly manner within the
marked
stalls provided.
|
|
(iv)
|
It
is recommended that cars be left in a "brakes on, doors locked" condition
at all times.
|
|
(v)
|
No
car will be allowed to park in any driveway area or in any manner
which
will interfere with the normal flow of
traffic.
|
|
(vi)
|
Cars
parked illegally will be towed at the car owner's
expense.
|
|
(vii)
|
Tenant
agrees that all its employees have been fully informed as to the
content
of these regulations.
|
|
(viii)
|
Landlord
or Landlord's agents and employees shall not be liable for and Tenant
waives all claims resulting from any accident or occurrence in and
upon
the parking area.
|
|
(ix)
|
All
automobiles parked in the parking areas shall be in good condition
and
repair, utilized for personal transportation, not commercial in nature
(excluding
service vehicles while the person is performing services at the Premises)
and
driven and handled at the risk of the owner. Notwithstanding
the foregoing, Tenant shall have the right to park (but not repair)
not
more than three (3) of Tenant’s service vans per night, one of which may
be parked nightly on a regular basis and the remaining two (2) of
which
shall may only be parked nightly on an occasional basis.
|
|
(x)
|
Automobile
owner or owner's agents shall not wash, wax or otherwise clean or
prep the
interior/exterior of vehicles or perform any maintenance whatsoever
on
vehicles within the parking area or on any part of the parking lot
servicing the Building.
|
|
(xi)
|
In
the event that automobile owner's use of the parking area violates
any
local, county or state law, regulation or ordinance, automobile owner's
right to utilize the parking area shall immediately cease. In addition,
in
no event shall Tenant permit its employees, licensees, invitees or
other
occupants to use more than Tenant's Proportionate Share of the existing
parking spaces for the Project.
|
|
(xii)
|
Parking
areas shall not be used to store vehicles or for parking large commercial
or recreational vehicles.
|
Tenant
shall be responsible for the observance of all the foregoing rules and
regulations by Tenant's employees, agents, clients, customers, invitees,
licensees and guests. Landlord shall not be responsible for any violation of
the
foregoing rules and regulations by other tenants of the Building and shall
have
no obligation to enforce the same against other tenants. Landlord shall have
the
right to amend these rules and regulations from time to time in accordance
with
the terms of the Lease.
Approved
by Tenant:
TENANT:
LDMI
TELECOMMUNICATIONS, INC.,
a
Michigan corporation
By:
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
CFO
EXHIBIT
C
DAILY
JANITORIAL SERVICE
(a) All
waste
paper baskets and ashtrays are emptied and cleaned.
(b) All
furniture and cleared desks are dusted as required.
(c) All
carpeting is vacuum cleaned daily as required.
(d) All
doors, doorknobs, and glass are wiped down as required.
(e) Walls
are
spot cleaned as required.
(f) Windows
are spot cleaned as required.
(g)
All corridors, common areas, common area bathrooms, and elevators are cleaned
daily, which includes washing all tile floors, washing out the sinks and stalls,
vacuum
cleaning the hallway carpeting, cleaning out the drinking fountains and spot
cleaning the walls and mirrors where necessary.
(h)
All
hard surface flooring shown on the Plans is vacuum cleaned daily as required.
Such hard surface flooring will be washed on a bi-monthly
basis.
Approved
by Tenant:
TENANT:
LDMI
TELECOMMUNICATIONS, INC.,
a
Michigan corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
CFO
EXHIBIT
D
SPECIAL
PROVISIONS
D1
EXCESS TENANT IMPROVEMENT COSTS.
Landlord
shall provide up to Nine
Hundred Forty-Eight Thousand Eight Hundred Sixteen Dollars
($948,816.00)
(the
"Tenant Improvement Allowance")
for the tenant improvements. Tenant shall be responsible for all costs in excess
of the Tenant Improvement Allowance to construct the Tenant Improvements in
accordance with the Plans. In the event the cost of completing the Tenant
Improvements is less than the Tenant Improvement Allowance, Landlord shall
retain the difference and Tenant shall
have up
to twelve (12) months to use the remaining balance of the Tenant Improvement
Allowance for other improvements to the Premises or for other ancillary
leasehold improvements, such as the installation of equipment, facilities and
business communication facilities to the Premises, however, in no event shall
such excess Tenant Improvement Allowance available for Tenant’s use for such
ancillary costs exceed Ninety
Four Thousand Eight Hundred Eighty One and 60/100
Two One
Hundred
Fifty Eighty
Nine Thousand
Seven
Hundred Sixty Three and 20/100
Dollars ($94,551.60)
($189,763.20)
($250,000.00).
If
Tenant elects to use any or all of such remaining balance of the Tenant
Improvement Allowance Tenant shall provide ten (10) days prior written notice
to
Landlord of its intent to use all or a portion of such remaining balance of
the
Tenant Improvement Allowance within thirty (30) days of such notice to Landlord.
After the twelfth (12th)
lease
month Tenant have
no claim for and not be entitled to receive any such sums. In the event the
estimated cost of completing the Tenant Improvements in accordance with the
Plans as a result of Tenant changes shall exceed the Tenant Improvement
Allowance, the Landlord shall provide Tenant with a Change
Order
(as defined below), documenting such increased cost and Tenant shall reimburse
Landlord for such increased costs
pursuant
to the payment terms set forth in such Change
Order.
D2
CHANGE ORDERS.
| A. |
Request
for Change. Tenant
may request changes to the Plans. In order to request a change, Tenant
must give written notice to Landlord of its election to make changes
to
the Plans (the “Request for Change Notice”). Tenant shall describe in the
Request for Change Notice such proposed changes and instruct Landlord
whether or not Tenant desires Landlord to stop all construction of
the
Tenant Improvements. Within three (3) business days of receipt of
Tenant’s
Request for Change Notice, Landlord shall provide either: (a) Tenant
with
a written notice (the “Change Order”) describing the proposed work, the
cost, and the delay to the TI Completion Date and/or increase the
amount
of days constituting the Renovation Period, if any; or, (b) a written
notice to Tenant indicating the date by which it can respond to the
Request for Change Notice with the information required under (a)
above,
and the delay of the TI Completion Date and/or the increase of the
amount
of days constituting the Renovation Period. Tenant shall have three
(3)
days to approve, in writing, the Change Order. In the event Tenant
does
not accept the Change Order within said three (3) day period, the
Plans
will remain as last approved by Tenant and Landlord shall continue
with
the construction of the Tenant Improvements, if pursuant to the Request
for Change Notice, construction had been
stopped.
|
| B. |
Landlord’s
Consent to Change. Any
changes by Tenant to the Plans shall be subject to Landlord’s prior
written consent, as evidenced by Landlord’s delivery of a Change Order.
Landlord shall not unreasonably withhold its consent to any such
changes,
so long as the changes do not create a Design Problem (as defined
in
Paragraph F below).
|
| C. |
Tenant
Reimburses Landlord for Landlord’s Increased Costs.
If
any such changes requested by Tenant and approved by Landlord increase
the
cost to Landlord of the construction of the Tenant Improvements shown
on
the Plans, beyond the Tenant Improvement Allowance Landlord shall
provide
Tenant with Change Order(s) documenting such increased costs beyond
the
Tenant Improvement Allowance and Tenant shall reimburse Landlord
for such
increased costs beyond the Tenant Improvement Allowance pursuant
to the
payment terms set forth in the Change
Order(s).
|
| D. |
Costs
Defined. The
costs charged by Landlord to Tenant pursuant to Paragraph C hereof
shall
be an amount equal to the costs incurred by Landlord beyond the Tenant
Improvement Allowance to:
|
| (a) |
review
the requested changes (including, without limitation, the cost of
retaining outside engineering
consultants);
|
| (b) |
revise
the Plans; and
|
| (c) |
cause
the Tenant Improvements, as reflected by the revised Plans, to be
constructed to the extent those costs exceed the costs that Landlord
would
have had to pay to cause the Tenant Improvements to be constructed
(as
reflected by the then-existing Plans) if such changes had not been
made.
|
| E. |
Change
Order Constitutes “Tenant Delay.”
If
pursuant to the Request for Change Notice, Tenant requests to stop
all
work in process until it receives a Change Order, or, if any Change
Order
delays Landlord’s completion of the Tenant Improvements shown on the
Plans, then such delay shall constitute a Tenant Delay. However,
the first
three (3) business days of delays resulting from change orders requested
by Tenant (calculated on a cumulative basis), shall not constitute
a
Tenant Delay, provided only if such delay was not caused by Tenant’s
request to stop construction. In addition, if pursuant to the Request
for
Change Notice, Tenant elects to stop all work in process until it
receives
a Change Order, such election shall constitute a Tenant
Delay.
|
| F. |
Design
Problem. The
term “Design Problem” shall mean an alteration that
will:
|
| (a) |
adversely
affect the Building’s structural integrity as determined by the
Landlord
or Landlord’s architect;
|
| (b) |
possibly
damage the building systems, such as the HVAC or electrical
system;
|
| (c) |
not
comply with applicable laws or
codes;
|
| (d) |
adversely
affect the interior or exterior appearance of the Building and/or
the
Common Areas.
|
D3
RIGHT OF FIRST REFUSAL.
D3.01 (a) For
purposes of this Lease, the following terms shall have the following
meanings:
(i) The
"Protected Space" shall mean outlined and identified as the “Protected Space” on
Exhibit E.
(ii) The
"Initial Tenants" shall mean all occupants of any portion of the Protected
Space
whose occupancy is pursuant to, under or through a lease with Landlord of such
portion of the Protected Space that is in effect on the date of this Lease,
(b) Provided
(i) Tenant is the Tenant originally named or Related
Entity (defined in Section 13.01) herein, (ii) Tenant actually occupies all
of
the Premises originally demised under this Lease,
or such space is occupied by Tenant or an approved successor and (iii) Tenant
is
not in
has no uncured default under the terms and conditions of this Lease as
of the
date of the giving of the "RFR Notice" or the "RFR Space Inclusion Date" (as
such terms are hereinafter defined), if at any time during the term of this
Lease Landlord shall receive an offer to lease all or any part of the Protected
Space from any person or entity other than an Initial Tenant (or their
affiliates) which Landlord may desire to accept, Landlord shall offer to Tenant
the right to lease the RFR Space (as defined below) by notifying Tenant in
writing (the "RFR Notice") of the basic terms of such offer. The RFR Notice
shall include the base rent, square footage and location of the space (which
shall include only the Protected Space covered by the offer such described
space
being the “RFR Space”), tenant improvement allowance, and term of the offer to
lease. If the space described in the offer to lease Landlord receives includes
all or a portion of the Protected Space plus other space in the Project,
Landlord shall have the RFR Space consist only of the Protected Space or portion
thereof covered by the offer without the other space. If the space described
in
the offer to lease Landlord receives is for only a portion of the Protected
Space, Landlord shall have the RFR Space consist of only such portion of the
Protected Space. In addition, if the term described in the offer to lease
Landlord receives extends beyond the Initial Term of this Lease, Landlord shall
have the right, in its sole and absolute discretion, to have the RFR Notice
state that the term for the RFR Space will be co-terminus with the Initial
Term
(and in such case Landlord shall have the right to make an appropriate
adjustment to the base rent, tenant improvement allowance and other terms before
stating them in the RFR Notice), or to have the RFR Notice state that the term
for the RFR Space is the longer term.
D3.02
Tenant
may accept the offer set forth in the RFR Notice by delivering to Landlord
an
unconditional acceptance (hereinafter called the "Tenant Acceptance") of such
offer within ten (10) days after delivery by Landlord of the RFR Notice to
Tenant. Tenant shall only have the right to accept the RFR Notice in its
entirety, not in part, and only on the terms provided in the RFR Notice. If
Tenant timely delivers the Tenant Acceptance, the RFR Space shall be added
to
and included in the Premises on the later to occur of (i) the day that Landlord
receives the Tenant Acceptance or (ii) the date such RFR Space shall become
available for Tenant's possession as set forth in the notice and if none is
set
forth in the notice, then determined in accordance with Section D5.03
(hereinafter called the "RFR Space Inclusion Date"). If Tenant does not accept
the RFR Notice within the ten (10) day period set forth above, Landlord may
(but
shall not be obligated to) proceed to lease all or any portion of the RFR Space,
and Tenant shall no longer have any rights with respect to the RFR Space
whatsoever, whether all or any portion of such space is leased as described
in
the RFR Notice or otherwise at any time, to any person or entity and under
any
terms and conditions. Time shall be of the essence with respect to the giving
of
the Tenant Acceptance.
D3.03 If
Tenant
delivers the Tenant Acceptance, Tenant agrees to accept the RFR Space in
accordance with the terms of the RFR Notice and, if none are stated, then
otherwise in its condition and state of repair existing as of the RFR Space
Inclusion Date and understands and agrees that except as otherwise set forth
in
the RFR Notice, Landlord shall not be required to perform any work, supply
any
materials or incur any expense to prepare such space for Tenant's occupancy.
Within thirty (30) days after giving the Tenant Acceptance, Tenant shall execute
a lease amendment providing for the addition of the RFR Space to the Premises
and the modification of all lease terms affected by the addition of the RFR
Space to the Premises. Unless otherwise provided in the RFR Notice, the lease
amendment shall provide that the RFR Space shall become available for Tenant's
possession within ninety (90) days after the date of the RFR Notice and such
date shall be considered the "Scheduled Occupancy Date" described in Section
2.04 of this Lease and the provisions of Sections 2 and 3 shall apply to the
Plans for the Tenant Improvements, the construction of the Tenant Improvements,
the payment for the Tenant Improvements, the delivery of possession of the
RFR
Space, the establishment of the RFR Inclusion Date and Commencement Date for
the
term for the RFR Space.
D3.04 Tenant
must accept all RFR Space offered by Landlord at any one time if it desires
to
accept any of such RFR Space.
D3.05 Notwithstanding
the foregoing, Tenant's rights hereunder are subject and subordinate, in each
and every respect, to any rights of first refusal, options or other rights,
however designated, of any tenant of the Building under any existing Building
lease at the time of execution of this Lease.
D3.06 All
rights under this Section D3 shall terminate upon the expiration of the Initial
Term of this Lease.
D3.07 Landlord
shall use its best efforts to comply with the provisions of this Section D3,
but
its failure to comply shall not constitute an event of default under this
Lease.
D4
DEFERRED
RENT.
| D 4.01 |
Deferral
Periods -
As
an inducement to rent the Premises, Tenant requests to modify the
Base
Rent (as that term is defined in the Lease) due for the periods,
defined
in the table below (collectively called the “Deferral Periods”), and
Landlord is willing to do so pursuant
to the terms set forth in Section D4.03 below.
|
|
Deferral
Periods
|
|
|
Lease
Month*
|
Deferral
Period
|
|
6/1/03
- 6/30/03
|
the
"First Deferral Period"
|
|
7/1/03
- 7/31/03
|
the
"Second Deferral Period"
|
|
8/1/03
- 8/31/03
|
the
"Third Deferral Period"
|
|
9/1/03
- 9/30/03
|
the
"Fourth Deferral Period"
|
|
10/1/03
- 10/31/03
|
the
"Fifth Deferral Period"
|
|
11/1/03
- 11/30/03
|
the
"Sixth Deferral Period"
|
|
12/1/03
- 12/31/03
|
the
"Seventh Deferral Period"
|
|
1/1/04
- 1/31/04
|
the
"Eighth Deferral Period"
|
|
2/1/04
- 2/29/04
|
the
"Ninth Deferral Period"
|
|
3/1/04
- 3/31/04
|
the
"Tenth Deferral Period"
|
|
4/1/04
- 4/30/04
|
the
“Eleventh Deferral Period”
|
|
5/1/04
- 5/31/04
|
the
“Twelfth Deferral Period”
|
|
6/1/04
- 6/30/04
|
the
"Thirteenth Deferral Period"
|
|
7/1/04
- 7/31/04
|
the
"Fourteenth Deferral Period"
|
|
8/1/04
- 8/31/04
|
the
"Fifteenth Deferral Period"
|
|
9/1/04
- 9/30/04
|
the
"Sixteenth Deferral Period"
|
|
10/1/04
- 10/31/04
|
the
"Seventeenth Deferral Period"
|
|
11/1/04
- 11/30/04
|
the
"Eighteenth Deferral Period"
|
|
12/1/04
- 12/31/04
|
the
"Nineteenth Deferral Period"
|
|
1/1/05
- 1/31/05
|
the
"Twentieth Deferral Period"
|
|
2/1/05
- 2/28/05
|
the
"Twenty-First Deferral Period"
|
|
3/1/05
- 3/31/05
|
the
"Twenty-Second Deferral Period"
|
|
4/1/05
- 4/30/05
|
the
“Twenty-Third Deferral Period”
|
|
5/1/05
- 5/31/05
|
the
“Twenty-Fourth Deferral Period”
|
The
term
“Lease Month”, as used herein, shall be defined to mean a full calendar
month.
*Predicated
upon the first Lease Month commencing on June
2, 2003.
If
the first Lease Month does not commence on June 1, 2003, all Lease Months
identified as the Deferral Periods shall be adjusted
accordingly.
| D 4.02 |
Deferral of
Base Rent.
The amounts defined in the table below the “Deferred Rent”, of the Base
Rent due for each Deferral Period will be paid according to Paragraph
D4.03 below, and the balance of the Base Rent will be paid according
to
the Lease.
|
|
For
Deferral Periods
(defined
above)
|
DEFERRED
RENT
|
|
First
Deferral Period
|
$66,289.33,
the "First Deferred Rent"
|
|
Second
Deferral Period
|
$66,289.33,
the "Second Deferred Rent"
|
|
Third
Deferral Period
|
$66,289.33,
the "Third Deferred Rent"
|
|
Fourth
Deferral Period
|
$66,289.33,
the "Fourth Deferred Rent"
|
|
Fifth
Deferral Period
|
$66,289.33,
the "Fifth Deferred Rent"
|
|
Sixth
Deferral Period
|
$66,289.33,
the "Sixth Deferred Rent"
|
|
Seventh
Deferral Period
|
$66,289.33,
the "Seventh Deferred Rent"
|
|
Eighth
Deferral Period
|
$66,289.33,
the "Eighth Deferred Rent"
|
|
Ninth
Deferral Period
|
$66,289.33,
the "Ninth Deferred Rent"
|
|
Tenth
Deferral Period
|
$66,289.33,
the "Tenth Deferred Rent"
|
|
Eleventh
Deferral Period
|
$66,289.33.
the “Eleventh Deferred Rent”
|
|
Twelfth
Deferral Period
|
$66,289.33,
the “Twelfth Deferred Rent”
|
|
Thirteenth
Deferral Period
|
$33,943.34,
the " Thirteenth Deferral Rent"
|
|
Fourteenth
Deferral Period
|
$33,943.34,
the "Fourteenth Deferral Rent"
|
|
Fifteenth
Deferral Period
|
$67,886.67,
the "Fifteenth Deferral Rent"
|
|
Sixteenth
Deferral Period
|
$33,943.34,
the "Sixteenth Deferral Rent"
|
|
Sixteenth
Deferral Period
|
$33,943.34,
the "Seventeenth Deferral Rent"
|
|
Eighteenth
Deferral Period
|
$67,886.67,
the "Eighteenth Deferral Rent"
|
|
Nineteenth
Deferral Period
|
$33,943.34,
the "Nineteenth Deferral Rent"
|
|
Twentieth
Deferral Period
|
$33,943.34,
the "Twentieth Deferral Rent"
|
|
Twenty-First
Deferral Period
|
$67,886.67,
the "Twenty-First Deferral Rent"
|
|
Twenty-Second
Deferral Period
|
$33,943.34,
the "Twenty-Second Deferral Rent"
|
|
Twenty-Third
Deferral Period
|
$33,943.34,
the “Twenty-Third Deferral Rent”
|
|
Twenty-Fourth
Deferral Period
|
$33,943.34,
the “Twenty-Fourth Deferral Rent”
|
| D 4.03 |
Payment
of the Deferred Rent.
The unpaid total of Deferred Rent, for the Deferral Periods, shall
be
forgiven by Landlord at the expiration of the Initial Term of this
Lease,
|
| D 4.04 |
Confirmation.
Landlord and Tenant confirm that this Section D4, DEFERRED RENT is
not an
amendment of the term “Base Rent” as that term is used in the Lease.
Tenant will pay its share of (“Common Area Expenses” or Operating
Expenses”) for all other amounts due under the Lease without regard to
this Section D4.
|
| D 4.05 |
Confidentiality
- Tenant
will not record this Section D4 or a memorandum hereof, and will
not
otherwise disclose the terms of this Section D4 to anyone other than
its
attorneys, accountants or employees who need to know of its contents
in
order to perform their duties for Tenant or any party approved in
writing
by Landlord.
|
D5
RIGHT TO TERMINATE EARLY.
D5.01
Provided
Tenant shall not have an uncured default under any of the terms of this Lease,
Tenant has merged or consolidated with another company and such merger or
consolidation requires Tenant to move outside the boundary lines of the State
of
Michigan, or
if
such merger or consolidation eliminates the need for the Premises
to
be used as the corporate headquarters and its ancillary
offices
by
the resultant entity after such merger or consolidation, Tenant
shall have the right (the "Tenant Termination Right") to terminate this Lease
at
the conclusion of the ninety-sixth
(96th
) eighty
fourth (84th)
lease
month (the "Termination Date") of the Initial Term by paying an early
termination fee of One
Million Two Hundred Three Thousand Three Hundred Thirty-Six Dollars and 90/100
($1,203,336.90) (the
"Termination Fee"). In order to exercise the Tenant Termination Right, Tenant
shall provide written notice to Landlord of its intent to terminate this Lease
at least one (1) year prior to the Termination Date and pay the Termination
Fee
at the time the notice is given. If Tenant does not exercise the Tenant
Termination Right, fails to provide Landlord with the one (1) year prior written
notice, or fails to pay the Termination Fee at the time the notice is given,
this Tenant Termination Right shall automatically terminate. This Tenant
Termination Right is personal to Tenant and may not be transferred nor assigned
in any way, except in connection with the above described merger or
consolidation or to a Related Entity. Notwithstanding the foregoing, this right
shall apply only to such space leased at the time of the execution of this
Lease
and shall not include space related to any Rights of First Refusal, Options,
or
other rights, howsoever designated in this Lease, unless Tenant also pays all
unamortized cost related to such other space.
D5.02
Provided
Tenant shall not have an uncured default under any of the terms of this Lease,
in the event Landlord places a “Restricted Name” (as listed below) on the top of
the Building during the Initial Term of the Lease, Tenant shall have the right
(the "Restricted Name Termination Right") to terminate this Lease without the
payment of any termination fee. In order to exercise the Tenant Termination
Right, Tenant shall provide written notice to Landlord of its intent to
terminate this Lease within thirty (30) days after the earlier of (i) the
installation of the Restricted Name or (ii) written notice from Landlord that
it
intends to install a Restricted Name on the top of the Building. If Tenant
does
not exercise the Restricted Name Termination Right, fails to provide Landlord
written notice within the thirty (30) day period, or if Landlord shall send
a
written notice of revocation of installation of the Restricted Name to tenant
within ten (10) days after the delivery of the Tenant’s exercise notice and
thereafter promptly remove the Restricted Name for the top of the Building,
this
Restricted Name Termination Right shall automatically terminate. This Restricted
Name Termination Right is personal to Tenant and may not be transferred nor
assigned in any way, except in connection with the above described merger or
consolidation or to a Related Entity. The following are the “Restricted Names”
:
McLeodUSA
Allegiance
XO
TDS
Metrocom
Choice
One
Sage
Telecommunications
SBC
Ameritech
Focal
Qwest
AT&T
Talk
America
Bullseye
D6
WORK PERFORMED BY TENANT.
Tenant
and Tenant’s agents and contractors may enter the Premises prior to completion
of the Tenant Improvements in order to make the Premises ready for Tenant’s use
and occupancy by means of activities including, but not limited to, furniture,
telephone, and data installation and cabling as applicable. Such entry prior
to
completion of the Tenant Improvements is conditioned upon Tenant and Tenant’s
agents, contractors, workmen, mechanics, suppliers, and invitees working in
harmony and not interfering with Landlord and Landlord’s contractors in doing
the Tenant Improvements or with other tenants and occupants of the Building.
Tenant agrees that any such entry into the Premises shall be deemed to be under
all of the terms, covenants, conditions, and provisions of the Lease (including,
without limitation, all insurance agreements), except as to the covenant to
pay
Rent thereunder, and further agrees that Landlord shall not be liable in any
way
for any injury, loss, or damage which may occur to any items of work constructed
by Tenant or to other property of Tenant that may be placed in the Premises
prior to completion of the Tenant Improvements, the same being at Tenant’s sole
risk. Landlord agrees to cooperate with Tenant and Tenant’s agents and
contractors. Landlord, or its agent, shall retain physical control of the job
site.
D8
TENANT REVIEW RIGHT.
Provided
no Event of Default exists under the Lease, Tenant shall have the right, at
its
sole cost and expense, to review Landlord’s records at the Manager’s office
relating to Real Estate Taxes and Operating Expenses for the Base Year and
any
subsequent year solely for the purpose of determining the amounts paid by Tenant
pursuant to Section 6 of this Lease. However, Tenant may only conduct a review
(i) upon reasonable notice to Landlord so as to allow Landlord sufficient time
to compile its records and make them available to Tenant at Manager’s office and
upon reimbursement to Landlord for its costs and expenses incurred in connection
with such review; (ii) not more than sixty (60) days after Tenant receives
the
Annual Statement of Real Estate Taxes and Operating Expenses for the subject
year, regardless of whether the year in question is the Base Year or any
subsequent year; (iii) not more than once during any Lease Year; and (iv) by
using an internal auditor or an independent certified public accountant
acceptable to Landlord in all respects which are not working for Tenant on
a
contingency fee basis.
D9
NON-DISTURBANCE.
In
the
event of subordination of this Lease, the subordination shall be conditioned
upon the agreement of the mortgagee or lessor that in the event of foreclosure
or the assertion of any other rights under the mortgage or lease, this Lease
and
the rights of Tenant hereunder shall continue in effect and shall not be
terminated or disturbed so long as Tenant continues to perform and no Event
of
Default exists under this Lease. Landlord
shall use commercially reasonable efforts to obtain a subordination,
non-disturbance and attornment agreement from its existing lender within thirty
(30) days after the date hereof.
D10
OPTION TERM.
Provided
that no default exists under this Lease and provided no default shall have
existed within a period of one (1) year prior to the notification hereunder
by
Tenant, Tenant shall have the right to extend the Initial Term of this Lease
for
two
(2)
terms of
five
(5)
Lease
Years each (individually an "Option Term" and collectively the "Option Terms"),
provided that Tenant shall deliver to Landlord written notice of its election
to
extend the Term of this Lease at least twelve (12) months prior to the
expiration date of the Initial Term of this Lease. The failure of Tenant to
exercise its right to extend the Lease for any Option Term shall void all
subsequent Option Terms. Terms, covenants and conditions applicable to the
Option Term
shall
be as then promulgated by Landlord, except as hereinafter specifically set
forth. Except for the granting of this Option Term and except as expressly
otherwise provided herein this Lease, the rent shall be adjusted as below.
The
Initial Term and the Option Terms, if exercised, are sometimes collectively
referred to hereinafter as the "Term". Base Rent for each Option Term shall
be
as follows: the rent for the Option Terms shall be at 90%
of
then
prevailing market levels for comparable renewal space at the Building but not,
in any event, less than the Base Rent payable at the end of the then current
Term.
Approved
by Tenant:
TENANT:
LDMI
TELECOMMUNICATIONS, INC.,
a
Michigan corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
CFO
EXHIBIT
E
PROTECTED
SPACE
Approved
by Tenant:
TENANT:
LDMI
TELECOMMUNICATIONS, INC.,
a
Michigan corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
CFO