[DESCRIPTION] EXHIBIT 10( i )
OFFICE LEASE AGREEMENT
PROJECT LOCATED AT: 000 XXXXX XXXXX
XXXXXXX, XXXXXXXX
LANDLORD: THE XXXXX COMPANIES, INC.,
A Delaware Corporation
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
TENANT: FIRST OF MICHIGAN CORPORATION
a Delaware corporation
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
000 XXXXX XXXXX LEASE SUMMARY
TENANT: First of Michigan Corporation
TRADE NAME (IF DIFFERENT):
SPACE/SUITE NO. :
SIZE: 37,259 Rentable Square Feet on fourth floor, 5,594 Rentable
Square Feet on first floor; 2,875 Rentable Square feet of basement
storage space.
LEASE YEAR: August 1 to July 31 (or July 1 to June 30 if Tenant takes
possession on or before July 1, 1997)
LEASE TERM: Ten years, August 1, 1997 to July 31, 2007 (or July 1,
1997 to June 30, 2007 if Tenant takes possession on or before July 1,
1997)
EXPIRATION DATE: July 31, 2007 (or June 30, 2007 if Tenant takes
possession on or before July 1, 1997)
USE: Office
MINIMUM RENT: $16/Rentable Square Foot ("RSF") years 1-4;
$16.50/RSF years 5 and 6; $17.25/RSF years 7 and 8; $18.00/RSF
years 9 and 10; $10/RSF for storage space
CPI ADJUSTMENTS: N/A
OPTIONS: 2 options, 5 years each
SALES/INCOME REPORTS: N/A
CAM%: 8.53 % (after first 5 years)
EXPENSE STOP: 1997 calendar year base (grossed up to reflect
95% occupancy)
TAXES: 8.53% (after first 3 years, 1997 calendar year base)
INSURANCE:
DEFAULT BY TENANT:
ADVERTISING: N/A
SECURITY DEPOSIT: N/A
LANDLORD'S CONSTRUCTION OBLIGATIONS:
GUARANTY: N/A
SPECIAL PROVISIONS: Option to terminate
at end of fifth (5th) lease year
Partial option to terminate as to first
floor space only after second (2nd) full
lease year
TABLE OF CONTENTS
OFFICE LEASE
SECTION - HEADING PAGE
Section 1.00 DEMISED PREMISES. 1
Section 1.1 1
Section 1.2 1
Section 2.00 TERM. 2
Section 2.1. 2
Section 2.2. 2
Section 3.00 RENT. 4
Section 4.00 OPERATING EXPENSES, PROPERTY
TAXES, MAINTENANCE OF COMMON AREAS. 5
Section 4.1 5
Section 4.2 9
Section 4.3 9
Section 4.4 10
Section 4.5 10
Section 4.6 10
Section 4.7 10
Section 4.8 10
Section 5.00 USE AND OCCUPANCY, HAZARDOUS
SUBSTANCES 10
Section 5.1 10
Section 5.2 10
Section 5.3 10
Section 5.4 10
Section 5.5 11
Section 5.6 11
Section 6.00 SERVICES. 11
Section 6.1 11
Section 6.2 11
Section 6.3 12
Section 6.4 13
Section 7.00 REPAIRS. 13
Section 8.00 ALTERATIONS. 13
Section 9.00 ASSIGNMENT AND SUBLETTING. 14
Section 9.1 14
Section 9.2 14
Section 9.3 14
SECTION - HEADING PAGE
Section 9.4 14
Section 9.5 15
Section 9.6 15
Section 9.7 15
Section 10.00 INSURANCE, INDEMNIFICATION AND
WAIVER OF SUBROGATION 15
Section 10.1 15
Section 10.2 15
Section 10.3 15
Section 10.4 16
Section 10.5 16
Section 11.00 FIRE. 16
Section 11.1 16
Section 11.2 16
Section 11.3 17
Section 12.00 EMINENT DOMAIN. 17
Section 13.00 RULES. 17
Section 14.00 ENTRY BY LANDLORD. 17
Section 14.1 17
Section 14.2 18
Section 15.00 EVENTS OF DEFAULT. 18
Section 15.1 18
Section 15.2 18
Section 16.00 REMEDIES. 19
Section 17.00 TERMINATION UPON DEFAULT. 20
Section 18.00 LANDLORD'S RIGHT TO CURE
DEFAULTS. 20
Section 19.00 ATTORNEY'S FEES. 20
Section 20.00 SUBORDINATION. 20
Section 20.1 20
Section 20.2 21
Section 20.3 21
Section 21.00 NO MERGER. 21
Section 22.00 NONLIABILITY OF LANDLORD. 21
Section 22.1 21
Section 22.2 21
Section 22.3 22
Section 23.00 ESTOPPEL CERTIFICATE. 22
Section 24.00 NO LIGHT, AIR OR VIEW EASEMENT. 22
Section 25.00 HOLDING OVER. 22
Section 26.00 ABANDONMENT. 22
SECTION - HEADING PAGE
Section 27.00 WAIVER. 23
Section 27.1 23
Section 27.2 23
Section 28.00 NOTICES. 23
Section 29.00 COMPLETE AGREEMENT. 23
Section 30.00 CORPORATE AUTHORITY. 23
Section 31.00 INABILITY TO PERFORM. 24
Section 32.00 COVENANT OF QUIET ENJOYMENT. 24
Section 33.00 MASTER LEASE. 24
Section 34.00 SECURITY DEPOSIT. 24
Section 35.00 ACCORD AND SATISFACTION. 24
Section 36.00 MISCELLANEOUS. 25
Section 36.1 25
Section 36.2 25
Section 36.3 25
Section 36.4 25
Section 36.5 25
Section 36.6 25
Section 37.00 OPTIONS. 25
Section 37.1 25
Section 37.3 27
Section 38.00 PARKING. 27
SECTION 39.00 SIGNAGE 28
SECTION 40.00 ADA COMPLIANCE. 29
SECTION 41.00 UTILIATION OF ROOF/PENTHOUSE 29
300 RIVER PLACE -
OFFICE LEASE AGREEMENT
THIS LEASE, made this 28th day of February, 1997, between
THE XXXXX COMPANIES, INC., a Delaware corporation, whose
address is 000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000-0000, (hereinafter
referred to as "Landlord") and FIRST OF MICHIGAN CORPORATION, a
Delaware corporation, whose address is 000 Xxxxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
Section 1.00 DEMISED PREMISES.
Section 1.1 Landlord, in consideration of the rents to be paid
and the covenants and agreements to be performed by the Tenant does
hereby lease unto Tenant Demised Premises situated in the City of
Detroit, County of Xxxxx and State of Michigan, more particularly
described as: Suites 4,000 and 1,400, containing approximately 37,259
rentable square feet on the fourth floor and 5,594 rentable square feet
on the first floor (collectively the "Office Premises") in the north half and
2875 rentable square feet (the "Storage Space") in the lower level of the
south atrium of that certain office building, known as "300 River Place"
(hereinafter referred to as the "Building) located on land more
particularly described in the legal description attached hereto as Exhibit
A and shown on the specifications and floor plan attached hereto and/or
referenced in Exhibit B, and thereby made a part hereof, (the Office
Premises and the Storage Space hereinafter collectively referred to as
the "Demised Premises"), together with the right to use certain interior
and exterior common and public areas and facilities including, but not
limited to, public corridors, stairwells, restrooms, elevators and parking
facilities (on a space available basis and upon payment of requisite
parking fees) (hereinafter referred to as the "Common Areas") as may
be designated by Landlord for use in common with Landlord and the
tenants and occupants (their agents, employees, customers and
invitees) of the Building, and the tenants and occupants (their agents,
employees, customers and invitees) of Landlord's other adjacent
buildings now or hereafter constructed in the development in Detroit,
Michigan known as "River Place" (hereinafter referred to as "River
Place"), if any. Tenant acknowledges that portions of the Common
Areas may be designated by Landlord from time to time for the benefit
of and use by others.
The precise number of rentable square feet of the Demised
Premises shall be determined by the Landlord's architect after the exact
location of the demising walls of the Demised Premises has been
specified by the Tenant, or when the Demised Premises are otherwise
completed and ready for occupancy and written confirmation of such
determination shall be attached hereto and incorporated herein by
reference; provided, that the rentable square footage set forth in Section
1.1 shall govern until such determination has been made. Such
determination shall be based on usable square feet in the Demised
Premises, measured in accordance with the ANSI Z65.1-1980
(reaffirmed in 1989), standard for determining usable square feet, plus a
fifteen percent (15%) common area factor.
Section 1.2 Landlord reserves (a) the right to convert
portions of the Building designated as Office Premises, Retail Premises
or Common Areas or designated for use for other purposes to other of
such purposes from time to time as Landlord shall determine, (b) the
right from time to time to make changes, alterations, additions,
improvements, repairs or replacements in or to the Building (including
the Demised Premises, subject to the protections afforded Tenant by
Sections 7.00 and 14.1 below) and the fixtures and equipment thereof,
as well as in or to the street entrances, halls, passages, elevators,
escalators and stairways and other parts of the Building, and to erect,
maintain, and use pipes, ducts, and conduits in and through the
Demised Premises, all as Landlord may reasonably deem necessary or
desirable; provided, however, that there be no unreasonable obstruction
of the means of access to the Demised Premises, (c) all rights to, and
the use of, the perimeter walls of the Demised Premises, any balconies,
terraces or roofs adjacent to the Demised Premises (including any
installations on said walls, balconies, terraces and roofs) and any space
in and/or adjacent to the Demised Premises used for shafts, stairways,
stacks, pipes, conduits, ducts, mail chutes, conveyors, pneumatic tubes,
electric or other utilities, sinks, fan rooms and other facilities of the
Building, as well as access thereto through the Demised Premises (at
and for such times as shall not unreasonably interfere with Tenant's
business) for the purpose of such use and the operation, improvement,
replacement, addition, repair, maintenance or decoration thereof, and
(d) the right to eliminate, substitute and/or rearrange the Common Areas
(which may theretofore have been so designated) as Landlord deems
appropriate in its discretion. Tenant's nonexclusive right to utilize the
Office Common Areas shall be in common with Landlord, other tenants
and occupants of the Building and others to whom Landlord grants such
rights from time to time.
Section 2.00 TERM.
Section 2.1. Except as hereinafter provided, the term of this
Lease, hereinafter called "Term", and the Tenant's obligation to pay rent
hereunder shall commence on the first to occur of (i) the date that is
thirty (30) days after Landlord notifies Tenant that the Demised
Premises are ready for occupancy ("Tenant's Fixturing Period"), or (ii)
when Tenant opens for business to the general public hereinafter called
"Commencement Date". Provided, that (i) Tenant shall be free to
occupy the Demised Premises at any time on or after the date on which
Landlord notifies Tenant that the Demised Premises are ready for
occupancy and, (ii) if Tenant occupies the Demised Premises prior to
July 1, 1997, the Commencement Date shall not be earlier than July 1,
1997. Tenant shall give Landlord reasonable prior notice of tenant's
anticipated move-in date to permit coordination of Tenant's move-in.
The Demised Premises shall be deemed to "be ready for
occupancy" when the Landlord shall have substantially completed
construction work required of Landlord in relation to said Demised
Premises in accordance with the specifications and plans which are to
be approved by the parties hereto, and attached hereto and made a part
hereof as Exhibit B. The Exhibit includes specific reference to the
construction responsibilities of each of the parties hereto.
The Term of this Lease shall end on the last date of the tenth
(10th) consecutive full Lease Year as said term "Lease Year" is
hereinafter defined, unless sooner terminated as hereinafter provided.
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 Commencement Date of the Term of this Lease
if such Commencement Date shall occur on the first day of a calendar
month; if not, then the first Lease Year shall commence on the first day
of the first calendar month following the Commencement Date of this
Lease.
The foregoing notwithstanding, in the event Landlord fails to
deliver the Demised Premises on the aforementioned Commencement
Date because the Demised Premises is not then ready for occupancy, or
because the previous occupant of the Demised Premises is holding
over, or for any other cause beyond Landlord's control, then, except as
expressly hereinafter provided, Landlord shall not be liable to Tenant for
any damages as a result of Landlord's delay in delivering the Demised
Premises, nor shall any such delay affect the validity of this Lease or the
obligations of Tenant hereunder, and the Commencement Date of this
Lease shall be postponed (and the expiration date correspondingly
extended) until such time as the Demised Premises are ready for
Tenant's occupancy.
Section 2.2. The provisions of Section 2.1 notwithstanding, if
Landlord fails to deliver possession of the Demised Premises to Tenant ,
ready for occupancy, by August 1, 1997 for Tenant's fixturing and if, as a
result, Tenant is unable to complete its fixturing in the Demised
Premises by September 1, 1997, (which is the date upon which Tenant
will become a holdover Tenant under its existing lease at 100
Renaissance Center) Tenant shall receive a credit against the rents first
coming due under this lease in an amount equal to fifty percent (50%) of
the Rent Differential (as hereinafter defined) for the month of
September, 1997. For purposes of this Section 2.2, the term Rent
Differential shall mean the amount by which the rent actually paid by
Tenant to its existing Landlord at the Renaissance Center during this
holdover period, beginning September 1, 1997, exceeds the rent
payable by Tenant under that lease for the month of August, 1997. If
Landlord fails to deliver the Demised Premises to Tenant, ready for
occupancy, on or before September 1, 1997, for fixturing, and if, as a
result, Tenant is unable to complete its fixturing by October 1, 1997,
Tenant shall receive a credit against rents first coming due under this
Lease equal to the full amount of such Rent Differential for the period
beginning October 1, 1997. Provided, if Tenant's holdover rent liability
in such circumstances is calculated on a per diem basis, Landlord's
liability under this Section 2.2 shall be limited to its share of the Rent
Differential for that number of days equal to the number of days after
August 1, 1997 that Landlord delivers the Demised Premises to Tenant
for fixturing. Provided, further, that in no event shall Tenant be entitled
to rent credit for any Rent Differential for the period beyond the end of
the calendar month during which Tenant's thirty (30) day Fixturing
Period ends.
Anything contained in this Lease to the contrary notwithstanding,
in the event the Demised Premises are not delivered by Landlord for
Tenant by October 1, 1997, with all leasehold improvements
substantially completed as set forth on Exhibit "B" to this Lease, then
Tenant shall have the right to terminate this Lease as hereinafter
provided. Tenant may exercise this right of termination by delivering to
Landlord written notice of the same at any time prior to Landlord's
substantial completion of Landlord's work and such termination shall be
effective 10 days after the date of delivery of such notice to Landlord
unless Landlord delivers possession of the Demised Premises to Tenant
with Landlord's work substantially completed within said 10 day period.
If this Lease is so terminated, Landlord and Tenant shall have no further
obligation to the other and any prepaid rents or security deposits
theretofore paid by Tenant to Landlord shall be promptly refunded to
Tenant; provided, that Tenant shall be liable to Landlord for the cost of
any tenant improvement work for which Tenant is liable pursuant to the
terms of this Lease, as set forth on Exhibit B, and Tenant shall not be
entitled to a refund of any sums paid to Landlord with respect to such
work.
The foregoing notwithstanding, in the event Landlord has not
completed its work within the aforesaid time periods due to any action or
failure to act on the part of Tenant or its agents, including without
limitation any delay in the completion of Landlord's work occasioned by
interference with Landlord's contractors by any agent or contractor of
Tenant, then the dates upon which Tenant's right to credit for Rent
Differential and right of termination arise shall be extended by a number
of days equivalent to the number of days delay caused by the actions or
inaction of Tenant or its agents or contractors. Moreover, if this Lease
has not been fully executed by both Landlord and Tenant by February
19, 1997, the dates upon which Tenant's right to credit for Rent
Differential and right of termination arise shall also be extended by a
number of days equivalent to the number of days after February 26,
1997, that this Lease is fully executed by both Landlord and Tenant.
Upon occupancy of the Demised Premises, Tenant shall be
deemed to have accepted the Demised Premises in their then existing
condition, to have acknowledged that the Demised Premises are in the
condition, and of the nature required by this Lease except with respect to
latent defects (i.e. those defects not reasonably discoverable by Tenant
during the course of a walk through inspection of the Demised Premises)
reported to Landlord in writing within ninety (90) days after the
Commencement Date.
Immediately upon execution of this Lease by or on behalf of
both Landlord and Tenant, Tenant shall be permitted to enter that
portion of the Demised Premises not presently occupied for the purpose
of commencing Tenant's work. Tenant shall be permitted to perform
such non-structural work as shall be reasonably necessary to prepare
the Demised Premises for Tenant's occupancy, subject to Landlord's
prior written approval of such work. Tenant shall be responsible for
obtaining all necessary licenses or permits for such work; shall repair
any damage to the Demises Premises caused by such work; shall
perform such work in such a manner as to interference with the present
tenant of the occupied portion of the Demised Premises; shall keep the
Demised Premises free and clear of all liens and encumbrances arising
from such work; and shall indemnify, defend and hold Landlord harmless
with respect to all injury or damage to persons or property arising out of
such work. In addition, Tenant's contractors shall schedule their work in
such a manner as to avoid interference with Landlord's contractors. The
work to be performed by Tenant may include the right to replace and
maintain wiring conduits between the first floor portion of the Demised
Premises and the fourth floor portion of the Demised Premises, provided
that all such conduits shall be located at Landlord's direction and the
installation work shall be conducted in such a manner as to not interfere
with the tenants of any space through which such conduits shall run.
Alternatively, at Landlord's election, Landlord may install all conduits
running through space presently occupied by other tenants at Tenant's
expense.
Section 3.00 RENT.
Tenant shall and hereby agrees to pay to the Landlord at the
offices of The Xxxxx Companies, Inc., 000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Treasury Department, or at such other place or
places as Landlord shall designate from time to time in writing during the
continuance of said Term, without any offset whatsoever, and subject to
Section 1.1 hereof, minimum rent, commencing on the Commencement
Date and continuing on the first day of each month thereafter during the
Term of this Lease, but subject to any credits or abatements to which
Tenant is entitled pursuant to the terms of this Lease, as follows:
a. For the Office Premises:
i. During years 1 to 4 of the Lease Term, a minimum
rental of Sixteen and 00/100 Dollars ($16.00) per
rentable square foot per annum, payable in monthly
installments in advance, at the rate of Fifty-Seven
Thousand One Hundred Thirty-Seven and 33/00 Dollars
($57,137.33) per month;
ii. During years 5 and 6, a minimum rental of Sixteen and
50/100 Dollars ($16.50) per rentable square foot per
annum, payable in monthly installments in advance, at
the rate of Fifty-Eight Thousand Nine Hundred Twenty-
Two and 88/100 Dollars ($58,922.88) per month;
iii. During years 7 and 8, a minimum rental of Seventeen
and 25/100 Dollars ($17.25) per rentable square foot per
annum, payable in monthly installments in advance, at
the rate of Sixty-One Thousand Six Hundred One and
19/100 Dollars ($61,601.19) per month; and
iv. During years 9 and 10, a minimum rental of Eighteen
and 00/100 Dollars ($18.00) per rentable square foot,
payable in monthly installments in advance, at the rate
of Sixty-Four Thousand Two Hundred Seventy-Nine and
50/100 Dollars ($64,279.50) per month.
b. For the Storage Space, a minimum rental of Ten Dollars
($10.00) per rentable square foot per annum, payable in monthly
installments in advance, at the rate of Two Thousand Three Hundred
Ninety Five and 83/100 Dollars ($2,395.83) per month.
Provided, that if the date on which Tenant's rent obligation
would otherwise commence under this Lease is prior to the expiration of
Tenant's (30-day) Fixturing Period, Tenant's liability for base rent shall
be abated until the earlier of the expiration of the 30-day Fixturing
Period or the date on which Tenant completes its fixturing of the
Demised Premises, but in no event earlier than July 1, 1997. Provided,
further, that Tenant shall be entitled to an abatement of rent equal to
Tenant's share of the cost of tenant improvements pursuant to Exhibit B,
but not in excess of one month's minimum rent.
Tenant shall pay the minimum rent for the first full month of the
Lease Term within ten (10) days after the date of execution of this Lease
on behalf of both Landlord and Tenant.
If the Term of this Lease shall commence upon a day other than
the first day of a calendar month, then Tenant shall pay, upon the
Commencement Date of the Term, a pro-rata portion of the fixed
monthly rent, computed upon the basis of a thirty (30) day month,
pro-rated on a per diem basis for the number of days between such
Commencement Date and the end of such calendar month. Thereafter,
minimum rental and any additional rent, if any, as hereinafter defined
shall be paid as set forth above. The foregoing notwithstanding, if
Tenant occupies the Demised Premises on or after May 1, 1997 but
prior to July 1, 1997 as permitted pursuant to Section 2.00 above,
Tenant's minimum rental obligation shall not commence until the
Commencement Date, July 1, 1997.
Section 4.00 OPERATING EXPENSES, PROPERTY TAXES,
MAINTENANCE OF COMMON AREAS.
Section 4.1 In addition to the rent specified in Section 3.00
above, Tenant shall pay to Landlord, throughout the term of this Lease
and any renewals or extensions hereof in the manner and at the times
herein provided, and subject to the limitations hereinafter set forth,
Tenant's Share of (i) all Operating Expenses incurred by Landlord during
each calendar year in excess of the amount incurred by Landlord for
Operating Expenses during the applicable Base Year, "grossed up" as
hereinafter provided, (the "Operating Expense Floor") and (ii) the
amount of Real Property Taxes payable with respect to the Building and
the land on which it is located during each calendar year in excess of the
amounts of real property taxes payable during the applicable Base Year
(the "Property Tax Floor"). During the initial Term of the lease, the Base
Year shall be calendar year 1997. If this Lease is extended for one or
both Renewal Periods pursuant to Section 37.1 below, then the Base
Years for the first and second Renewal Periods, respectively, shall be
the calendar years 2007 and 2012. Anything contained herein to the
contrary notwithstanding, Tenant shall have no liability for Operating
Expenses during the first five years nor for Real Property Taxes during
the first three years, following the earlier of the Commencement Date or
the date of occupancy by Tenant. Tenant shall have no liability for
Operating Expenses and Real Property Taxes from the commencement
of each Renewal Period through the end of the calendar year (2007 and
2012, respectively) during which the Renewal Period commences.
Thereafter, Tenant shall pay its share of the amount by which the
Operating Expenses incurred and Real Property Taxes payable by
Landlord during each calendar year exceed the applicable Operating
Expense Floor and Property Tax Floor.
Landlord represents to Tenant that the Building is not presently
subject to any property tax exemption or abatement that will expire
during the Term of this Lease.
Tenant's Share of the Operating Expenses and Real Property
Taxes shall mean the percentage as determined in Section 4.4 hereof
and shall be paid in monthly installments, in advance, at the same time
as the monthly rental payments. No credit shall be given to the Tenant
hereunder in the event that Landlord's actual Operating Expenses and
Real Property Taxes are less than the Operating Expense Floor or
Property Tax Floor, respectively, for any year.
Prior to the commencement of the first lease year for which
Tenant is obligated to pay its share of Operating Expenses or Real
Property Taxes, and prior to the commencement of each ensuing
calendar year, or as soon thereafter as practicable, Landlord shall give
Tenant written notice of Landlord's estimate of Tenant's Share of
Operating Expenses and Real Property Taxes for the then current
calendar year and each ensuing calendar year. Commencing on the
first day of the first month of the first lease year for which Tenant is
obligated to pay its share of Operating Expenses or Property Taxes, and
continuing on the first day of each and every month thereafter
throughout the Term and any extensions thereof, Tenant shall pay to
Landlord one-twelfth (1/12) of such estimated amounts; provided that
until such notice is given with respect to the ensuing calendar year,
Tenant shall continue to pay the amount currently payable pursuant
hereto until after the month such notice is given. If at any time or times
it appears to Landlord that Tenant's Share of Operating Expenses for the
then current calendar year will vary from Landlord's estimate by more
than five (5%) percent, Landlord may, by written notice to Tenant, revise
its estimate for such year and subsequent payments by Tenant for such
year shall be based upon such revised estimate.
Within ninety (90) days after the end of each calendar year, or
as soon after such ninety (90) day period as practicable, Landlord shall
deliver to Tenant a written statement prepared by Landlord of what
Tenant's Share of Operating Expenses and Real Property Taxes is (or
would have been but for the abatement provided above) for such
calendar year and such statement shall be final and binding upon
Landlord and Tenant, subject to Tenant's audit rights as provided below.
If on the basis of such statement Tenant owes an amount that is less
than the estimated payments for such calendar year previously made by
Tenant, Landlord shall credit such excess amount against the next
payment(s) due from Tenant to Landlord of Operating Expenses. In no
event shall the Tenant be entitled to receive any credit or
reimbursement in an amount greater than the difference between the
Operating Expense Floor or Property Tax Floor and the estimated
amount of the Tenant's Share paid by the Tenant for any fiscal year. If
on the basis of such statement, Tenant owes an amount that is more
than the estimated payments for such fiscal year previously made by
Tenant, Tenant shall pay the deficiency to Landlord within thirty (30)
days after delivery of such statement.
For each calendar year for which Tenant is obligated to pay its
share of Operating Expenses and/or Property Taxes, Tenant shall have
the right, for a period of ninety (90) days after delivery of the aforesaid
statement, to audit Landlord's Operating Expense and Real Property
Tax records on which such statement is based. If such audit discloses
an error in Landlord's statement, the difference shall promptly be paid
by, or credited to, Tenant as appropriate. Tenant acknowledges that
Landlord is not a publicly held corporation, that Landlord is not obligated
to provide financial information to the general public, and that the audit
right granted hereby shall be limited to only those records as pertain to
the Operating Expenses and/or Property Taxes, as applicable, for the
Building for the years for which Tenant has an obligation to pay its share
of Operating Expenses and/or Property Taxes, and Tenant shall have no
right to review or audit any other records of Landlord. In addition, if such
audit discloses an error in the statement in Landlord's favor of more than
ten percent of the amount of the statement, Landlord shall pay Tenant's
audit costs, but not in excess of the amount of the error. If Tenant does
not exercise this right of audit within said ninety (90) day period, this
right of audit shall expire, and the statement delivered by Landlord shall
be final and conclusive.
For purposes of this section, the term "Operating Expenses"
shall mean actual costs incurred by Landlord, whether incurred directly
or incurred indirectly as Lessee under the terms of its Master Lease, with
respect to the operation, maintenance, repair and replacement and
administration of that portion of the Building consisting of the first
through sixth floors, inclusive, and basement of the Building, and
designated Common Areas, including, without limitation or duplication,
(a) the costs incurred for air-conditioning; mechanical ventilation;
heating; cleaning (including janitorial services); rubbish removal; snow
removal; general landscaping and maintenance; window washing,
elevators, escalators, xxxxxx and matron services; electric current for
Common Areas; steam; management fees; protection and security
services; sprinkler apparatus; public liability and property damage
insurance (including loss of rental income insurance); supplies, wages,
salaries, disability, benefits, pensions, hospitalization, retirement plans
and group insurance respecting service and maintenance employees
and management, accounting and administrative staff; uniforms and
working clothes for such employees and the cleaning thereof; expenses
imposed pursuant to any collective bargaining agreement with respect to
such employees; payroll, social security, unemployment and other
similar taxes with respect to such employees and staff; sales, use and
other similar taxes; water rates and sewer charges; advertising, public
relations and promotions; depreciation of movable equipment and
personal property, which is, or should be, capitalized on the books of
Landlord, and the cost of movable equipment and personal property,
which need not be so capitalized, as well as the cost of maintaining all
such movable equipment, and any other costs, charges and expenses
which, under generally accepted accounting principles and practices,
would be regarded as maintenance and operating expenses, (b) the cost
of any capital improvements made to the Building by Landlord after the
Commencement Date that are intended to reduce other Operating
Expenses, or made to the Building by Landlord after the date of this
Lease that are required under any governmental law or regulation that
was not applicable to the Building at the time it was last renovated
(approximately 1986), such cost to be amortized over such reasonable
period as Landlord shall determine, together with interest on the
unamortized balance at the rate of two (2%) percent in excess of the
then current "prime rate" of Michigan National Bank or such higher rate
as may have been paid by Landlord on funds borrowed for the purpose
of constructing such capital improvements, and (c) the amount incurred
by Landlord (directly or indirectly as Lessee under the terms of its
Master Lease) of all ad valorem personal property taxes and
assessments, special or otherwise, levied upon or with respect to the
Building and the personal property used in connection therewith,
imposed by any taxing authority having jurisdiction ("Personal Property
Taxes"). Real Property Taxes shall include all ad valorem real property
taxes and assessments, special or otherwise, levied upon or with respect
to the Building, the land on which it is located, and the fixtures and
improvements therein and thereon, imposed by any taxing authority
having jurisdiction (Real Property Taxes and Personal Property Taxes
are sometimes collectively referred to as "Property Taxes"). Property
Taxes shall also include all taxes, levies and charges which may be
assessed, levied or imposed in replacement of, or in addition to, all or
any part of ad valorem Real and Personal Property Taxes as revenue
sources, and which in whole or in part are measured or calculated by or
based upon the Building, the freehold and/or leasehold estate of
Landlord or Tenant, or the rent and other charges payable hereunder
including any expenses incurred by Landlord in determining or
attempting to obtain a reduction of taxes.
Operating Expenses shall not include depreciation of the
Building other than depreciation on standard exterior window coverings
provided by Landlord and carpeting in Common Areas and, other than
as set forth above, costs of services or repairs, replacements and
maintenance which are paid for by proceeds of insurance, by other
tenants (in a manner other than as provided in this Section 4.1) or third
parties, costs of operating the parking areas servicing the Building,
tenant improvements, real estate brokers' commissions, interest and
capital items other than those referred to above. Operating Expenses
shall also not include any of the following:
A. Repairs or other work occasioned by fire, windstorm
or other casualty of an insurable nature or by the
exercise of the right of eminent domain;
B. Leasing commissions, attorneys fees, costs
disbursements and other expenses incurred in
connection with negotiations or disputes with
tenants/Tenant, other occupants, or prospective
tenants or other occupants, or purchasers or
mortgagees of the Building;
C. Expenses incurred in renovating or otherwise
improving or decorating, painting, or redecorating
space for tenants/Tenant or other occupants or
vacant tenant space;
D. Except as otherwise provided herein, costs incurred
by Landlord for alterations which are considered
capital improvements and replacements under
generally accepted accounting principles;
E. Except as otherwise provided herein, costs of a
capital nature, including, but not limited to, capital
improvements, capital repairs, capital equipment,
and capital tools all in conformance with generally
accepted accounting principles;
F. Expenses in connection with services or other
benefits of a type which are not provided Tenant but
which are provided to any other tenant or occupant;
G. Costs incurred due to violation by Landlord or any
tenant or other occupant of the terms and conditions
of any lease;
H. Overhead and profit increments paid to subsidiaries
or affiliates of Landlord for services on or to the real
property, to the extent only that the costs of services
exceed competitive costs of such services
obtainable from other sources;
I. Interest on debt or amortization payments on any
mortgage, mortgages, or similar debit and rental
under any ground or underlying leases or lease;
J. Any compensation paid to clerks, attendants, or
other persons in commercial concessions operated
by Landlord;
K. All costs, fines or penalties incurred due to
violations by Landlord of any governmental rule or
authority;
L. Costs incurred in connection with the sale,
refinancing, mortgaging or selling or change of
ownership of the Building, including brokerage
commissions, attorneys and accountants fees,
closing costs and interest charges;
M. Costs, fines, interest, penalties, legal fees or costs
of litigation incurred due to the late payments of
taxes, utilities and other charges resulting from
Landlord's failure to make such payments when
due;
N. Costs or expenses for owning, leasing and/or
maintaining sculptures, paintings, or other works of
art (but excluding lobby plants) installed in and on
the Building or the Land;
O. State, local or federal personal or corporate income
taxes (including Michigan single business tax)
measured by the income of Landlord from all
sources or from sources other than rent alone,
estate and inheritance taxes, franchise, succession
and transfer taxes and interest on taxes and
penalties resulting from failure to pay real estate
taxes. Further, the amount of tax expenses paid by
Tenant and attributable to tenant improvements, or
tax expenses in connection with other alterations,
additions, substitutions and improvements done by
or for the tenants in the Building which is separately
assessed to and paid by such other tenants or
directly received by Landlord from such other
tenants, shall be excluded from operating expenses;
P. Expenses and costs relating in any way whatsoever
to the identification, testing, monitoring, control,
encapsulation, removal, replacement, repair and
abatement of any hazardous materials within the
Building, Demised Premises (which shall be subject
to the provisions of Article V of this Lease) and the
Land; and
Q. Costs with respect to Landlord's central office, if
any, or its operations conducted, or employees
engaged, therein, except costs that directly relate to
or are otherwise allocable to the Land, the Building,
or any portion thereof.
Landlord and Tenant acknowledge that certain of the costs of
operation, maintenance and repair of the Building may be allocated by
Landlord entirely to the office portion of the Building (floors 2 through 6),
certain of such costs may be allocated entirely to the retail portion of the
Building (first floor) and certain of such costs will be allocated among the
office and retail portion of the Building. In addition, certain costs may be
allocated between buildings within the development known as "River
Place." The determination of such costs and their allocation shall be
made by the Landlord on a reasonable basis.
Section 4.2 It is the intention of Landlord and Tenant that all
Operating Expenses will be determined on a basis which will not unfairly
allocate Operating Expenses to either Landlord or Tenant and that
Tenant shall pay as Tenant's Share its fairly allocated portion of those
Operating Expenses which are variable in amount based on the level of
occupancy of the Building. Accordingly, if the average occupancy rate
of the Building is less than 95% during calendar year 1997, or any
subsequent Base Year for any Renewal Periods, the actual Operating
Expenses incurred by Landlord for that Base Year shall be "grossed up"
to reflect the estimated Operating Expenses that would have been
incurred by Landlord had the occupancy rate of the Building averaged
95% during that Base Year, and the result shall be the Operating
Expense Floor for determining Tenant's Share. Such grossing up shall
be accomplished by adjusting those expenses which are dependent
upon or calculated based upon occupied or utilized area within the
Building by an amount which, in the exercise of Landlord's best
reasonable judgment, would result in those adjusted expenses reflecting
the amount of expenses which would have actually been incurred by
Landlord had the occupancy rate for the Building averaged 95% during
that Base Year. Similarly, if the average occupancy rate for the Building
is less than 95% for any calendar year during which Tenant is obligated
to pay its share of Operating Expenses pursuant to this Section 4.00, the
Operating Expenses for that calendar year shall also be "grossed up" in
the same manner as the Operating Expenses for the Base Year, in order
to more accurately reflect the Operating Expenses which Landlord would
have incurred had the occupancy rate of the Building during that
calendar year averaged 95%; provided, that in no event shall Tenant be
liable for more than 100% of the actual increase in Operating Expenses.
The foregoing notwithstanding, the amount of the increase in
Building Operating Expenses (grossed up as provided above) to be
taken into consideration in determining Tenant's Share for calendar year
2002 shall not exceed that amount determined by multiplying the
Operating Expense Floor by a percentage equal to the greater of (i) the
percentage change between the CPI (as hereinafter defined) for the
month of December, 1997 and the CPI for the month of December,
2001, but not more than 46.4% (which represents cumulative maximum
increases of 10% per year during the first four years of the Lease Term),
or (ii) 21.5% (which represents cumulative increases of 5% per year
during the first four years of the Lease Term). Thereafter, during the
initial term of this Lease, the amount which Tenant shall be required to
pay for Operating Expenses during each calendar year shall not exceed
the amount which Tenant was required to pay during the preceding
calendar year by more than the greater of (iii) the percentage change in
the CPI from the month of December next preceding that calendar year
to the month of December immediately preceding that calendar year
(but not more than 10%) or (iv) 5%. Similarly, for renewal periods,
should Tenant exercise one or both of its options to renew, the amount
of the increase in Building Operating Expenses (grossed up as provided
above) to be taken into consideration in determining Tenant's liability for
Operating Expenses during the first full calendar year of each renewal
period shall not exceed the amount determined by multiplying the new
Operating Expense Floor for that renewal period by a percentage equal
to the greater of the percentages set forth in clauses (iii) and (iv) above.
Subsequent annual adjustments shall also be subject to the same
percentage increase limitations as during the initial Term.
For purposes hereof, the term "CPI" shall mean the Consumer
Price Index for All Urban consumers (CPI-U) for the Detroit-Ann Arbor,
Michigan Metropolitan Area, (1982-84=100).
Section 4.3 Tenant's Share of Operating Expenses and Real
Property Taxes that is allocable to the calendar year during which
Tenant's obligation to pay the same commences and the calendar year
in which this Lease terminates shall be prorated on the basis of the
number of calendar days within such years as are within the Term.
Section 4.4 The term "Tenant's Share" shall mean 8.53% of
the total Operating Expenses and Real Property Taxes incurred by
Landlord. Tenant's Share has been reasonably computed by the
Landlord on the basis of the rentable square foot area of the Demised
Premises, excluding the Storage Space, divided by the rentable square
foot area of the Building (excluding the basement).
Section 4.5 Tenant shall pay as additional rental any money
and charges required to be paid by Tenant pursuant to the terms of this
Lease, whether or not the same may be designated "additional rent."
Section 4.6 Except as above provided, rent and additional
rental shall be paid to Landlord without notice or demand and without
deduction or offset, in lawful money of the United States of America at
Landlord's address for notices hereunder or to such other person or at
such other place as the Landlord may from time to time designate in
writing. All amounts payable by Tenant to Landlord hereunder, if not
paid within ten (10) days after the date due, shall bear interest from the
due date until paid at the rate of two (2%) percent in excess of the then
current "prime rate" of Michigan National Bank of Detroit, but not in
excess of the legal rate.
Section 4.7 Tenant shall also pay all real and personal
property taxes levied or assessed against Tenant's property and
improvements upon or affixed to the Demised Premises, including taxes
attributable to all alterations, additions or improvements made by
Tenant, whether assessed to Tenant or included in Assessments to
Landlord, and identifiable as such.
Section 4.8 Throughout the Term of this Lease, Landlord
shall be responsible for cleaning, maintenance and repair of the
Common Areas, which Landlord shall continue to maintain at a level of
care at least equal to Landlord's current level of maintenance of the
same.
Section 5.00 USE AND OCCUPANCY, HAZARDOUS
SUBSTANCES.
Section 5.1 During the Term, the Demised Premises shall
be used and occupied for office and incidental purposes and for no other
purposes without the prior written consent of Landlord in its sole
discretion. Tenant shall not conduct its business in a manner which will
cause an increase in property physical damage insurance premiums for
the Demised Premises or the Building, and Tenant will comply with all
requirements of the insurance policies and the Insurers relating to the
Demised premises. Tenant shall not use the Demised Premises for any
purpose in violation of any law, municipal ordinance, or regulation, nor
shall Tenant perform any acts or carry on any practices which may injure
the Demised Premises or the Building or be a nuisance, disturbance or
menace to the other tenants of the Building. Upon breach of this
agreement, Landlord shall have the right to terminate this Lease
forthwith and to reenter and repossess the Demised Premises, but
Landlord's right to damages will survive.
Section 5.2 Tenant shall not (a) perform any acts or carry on
any practices that may injure the structure or be a nuisance or menace
to the other Tenants in the Building; (b) use or permit the use of any
portion of the Demised Premises as sleeping apartments, lodging room
or for any unlawful purposes; and (c) use any of the Common Areas
including the hallways for its own business purposes.
Section 5.3 Neither Tenant, Tenant's employees or agents
nor any subtenant, licensee or concessionaire of Tenant shall solicit
business in the Common Areas, place any handbills or any other
advertising material in or on automobiles parked in the parking area or in
any other Common Areas unless Tenant shall have received the prior
written approval of the Landlord.
Section 5.4 Tenant shall not use, store, generate, treat, or
dispose of any hazardous substance on the Premises, or cause suffer or
permit the same to be done by any person without the prior written
consent of Landlord, which consent may be granted or withheld in
Landlord's sole discretion, and shall at all times comply with all
applicable federal, state and local laws, statutes, ordinances and
regulations governing hazardous substances. For purposes of this
section, the term "hazardous substance" means any substance, the
manufacture, use, treatment, storage, transportation, or disposal of
which is regulated by any law having as its object the protection of public
health, natural resources, or the environment, including, by way of
illustration only and not as a limitation, the following: the Resource
Conservation and Recovery Act; the Comprehensive Environmental
Response, Compensation, and Liability Act; the Toxic Substances
Control Act; the Federal Water Pollution Control Act; the Clean Air Act;
the Michigan Hazardous Waste Management Act; the Michigan Water
Resources Commission Act; the Michigan Medical Waste Disposal Act;
and the Michigan Solid Waste Management Act, as each of such acts
shall be amended from time to time. Upon expiration or termination of
this Lease Tenant shall clean up and remove from the Premises all such
hazardous substances deposited therein due to the acts or omissions of
Tenant. Tenant hereby agrees to indemnify and hold Landlord harmless
from and against any and all liability, loss, costs, penalty, damage and
expense, including reasonable consultant's and attorneys' fees, resulting
from or due to the Tenant's use, storage, generation or release or
threatened release of hazardous or toxic substances occurring or alleged
to have occurred on or from the Premises at any time. This indemnity
obligation shall survive the expiration or termination of this Lease.
Section 5.5 Tenant shall promptly supply to Landlord a copy
of the reports of any environmental audit or investigation at any time
undertaken on the Premises or adjacent property, all notices, demands,
inquiries, or claims received from any person or entity as a result of
hazardous substances alleged to be on or emanating from the Premises
or adjacent property, and any notices, reports, or applications for
licenses, permits, or approvals submitted by or on behalf of Tenant to
any environmental regulatory agency affecting the Premises or adjacent
property.
Section 5.6 Whenever in this Lease Landlord has reserved
the right to re-enter and repossess the Demised Premises upon Tenant's
default, Landlord agrees that, unless Tenant Voluntarily surrenders
possession of the Demised Premises to Landlord, Landlord shall only
take possession of the Demised Premises through Summary
Proceedings or such other similar proceedings as may then be
prescribed by applicable statutes and/or court rules.
Section 6.00 SERVICES.
Section 6.1 Landlord will arrange for the furnishing of
electricity to the Demised Premises, and Landlord shall charge Tenant
for electricity as determined by metering at the applicable secondary
rates filed by Landlord with the proper regulating authorities in effect
from time to time covering such services, but not more than the
secondary rates which would be charged to Tenant by the public utility
company. Such charge to Tenant for electricity shall be payable in
monthly installments in the amount invoiced to Tenant which shall be
due and payable on the first day of each month, commencing on the
earlier of the date on which Tenant occupies the Demised Premises or
the Commencement Date, whether or not Rent is payable for that
month. Engineering surveys shall be performed by independent
licensed professional electrical engineering consultants selected by
Landlord. From time to time during the Term, Landlord may inspect the
Demised Premises in order to evaluate Tenant's kilowatt hour electric
consumption and demand, and if as a result of such inspection, the
amount charged to Tenant shall change because of changes in demand
and/or consumption, or in the cost of electricity to Landlord, Landlord
shall notify Tenant in writing and commencing with the first day of the
next calendar month, Tenant shall pay such revised charge in monthly
installments.
Section 6.2 Landlord shall furnish the Demised Premises
with (a) heat, ventilation and air-conditioning (HVAC) and water service
for the same to the extent required for the occupancy of the Demised
Premises (excluding the first floor space and Storage Space) to levels of
comfort at least equivalent to current levels and during such hours in
each case as reasonably determined by Landlord for the Office portion
of the Building (which hours shall be not less than from 8:00 A.M. to 6:00
P.M. on weekdays (Monday through Friday), and 8:00 A.M. to 2:00 P.M.
on Saturday, (except the holidays of New Year's, Memorial,
Independence, Labor, Thanksgiving and Christmas), or such broader
hours as Landlord may designate in its sole discretion, or as may be
prescribed by any applicable policies or regulations adopted by any
utility or governmental agency, (b) elevator service, and (c) janitorial
service only to the areas of the Demised Premises used for office
purposes during the times and in the manner that janitorial services are
furnished in comparable first-class office buildings in the Metropolitan
Detroit area, provided that Landlord shall not provide janitorial services
to any portion of the Demised Premises used for other than office
purposes such as preparing, dispensing or consumption of food or
beverages or as an exhibition area or for storage, shipping room,
washroom or similar purposes, or as private restrooms or a shop or for
the operation of computer data processing, reproduction, duplicating or
similar equipment. Except as expressly hereinafter provided, Landlord
shall not be in default hereunder or be liable for any damages directly or
indirectly resulting from, nor shall the rental herein reserved be abated
by reason of: (1) the installation, use or interruption of use of any
equipment in connection with the furnishing of any of the foregoing
services, to the extent not within the reasonable control of Landlord, (2)
failure to furnish or delay in furnishing any such services when such
failure or delay is caused by accident or any condition beyond the
reasonable control of Landlord or by the making of necessary repairs or
improvements to the Demised Premises or to the Building, or (3) any
limitation, curtailment, rationing or restriction on use of water, electricity,
steam, gas or any other form of energy or utility serving the Demised
Premises or the Building. Landlord shall use reasonable efforts
diligently to remedy any interruption in the furnishing of such services.
Notwithstanding the provisions of this Section 6.2, Landlord shall not be
required to provide ventilation and air-conditioning to the Demised
Premises as herein provided if Tenant shall utilize in the Demised
Premises heat generating equipment or lighting other than building
standard lights which affect the temperature otherwise maintained by the
air-conditioning system or if the Demised Premises are occupied by a
number of persons in excess of the design criteria of the air-conditioning
system.
In the event that any interruption in services occurs as a result
of the acts or omissions of Landlord, the prevention or cure of which is
within a reasonable control of Landlord, and if such interruption
continues for more than the greater of five (5) consecutive calendar
days or four (4) consecutive business days, or more than eight (8)
business days during any Lease Year; Tenant shall be entitled to an
equitable abatement of rental for the period of such interruption. If the
interruption is such that it renders all, or a portion of the Demised
Premises unusable, the rent shall be abated for the portion of the
Demised Premises rendered unusable at a rate equivalent to the full
daily rental rate for such unusable portion of the Demised Premises. If
no portion of the Demised Premises is totally unusable, but Tenant's
activities are curtailed in some portion or all of Demised Premises as a
result of the interruption, then the abatement shall be limited to an
equitable proportion of the daily rent for the portion of the Demised
Premises so affected.
Any services required by Tenant at times and/or manner other
than that prescribed by the Landlord under the standard policy for the
Building shall be subject to Landlord's prior written approval at Tenant's
sole expense.
Section 6.3 Tenant shall pay as additional rent the cost of
providing all heating, ventilating and air-conditioning ("HVAC"), including
all costs associated with the installation of meters for measuring the
same, to the Demised Premises in excess of that required for normal
office use or during hours requested by Tenant when HVAC is not
otherwise furnished by Landlord. Tenant shall notify Landlord in writing
at least twenty-four (24) hours prior to the time it requires HVAC during
periods the same is not otherwise furnished by Landlord.
Notwithstanding the foregoing, Landlord shall only be required to provide
HVAC to the extent available utilizing the existing equipment servicing
the Building. The foregoing notwithstanding, Landlord shall not charge
Tenant for HVAC during the hours 8:00 a.m. to 8:00 p.m. Monday
through Sunday for the first two months following the earlier of the
Commencement Date or the date on which Tenant occupies the
Demised Premises. In addition, Tenant shall not be charged for the first
twenty (20) hours of after-hours HVAC per lease year. Thereafter,
Tenant shall pay all costs of providing the same as provided above.
Presently, Tenant's cost for after-hours HVAC would be Fifty Dollars
($50.00) per hour, but the amount is subject to increase from time to
time during the Lease Term as Landlord's costs increase.
Section 6.4 With respect to the first floor space, only,
Landlord will provide and install a heating, ventilating and air
conditioning system (HVAC) as part of the performance of Landlord's
work as set forth on Exhibit "B." Throughout the term of the Lease
Tenant shall pay the cost of all gas, electricity, water, or other utilities or
services utilized in connection with the operation of the HVAC system in
the first floor space. In addition, Tenant shall be fully responsible for
maintaining and repairing the same at Tenant's expense in a good
workmanlike condition throughout the Term of the Lease.
Section 6.5 Throughout the term of the Lease, Landlord
shall keep in the place the existing electronic security system for the
Building; provided, that Landlord shall be free to replace the existing
system with a system that is functionally equivalent to, or better than,
the existing system and, provided further, that Landlord shall be free to
utilize a temporary security system in the event of loss of electrical
power or damage to or construction of the security system control
center. In addition, Landlord shall provide or cause to be provided
security services at a level at least equivalent with the level of security
services presently provided at the Building.
Section 7.00 REPAIRS.
Subject to Tenant's obligation to pay Operating Expenses
pursuant to Section 4 hereof, Landlord shall, with reasonable diligence
and at its expense, make all necessary repairs and replacements to the
exterior of the Building and to the Common Areas, including Landlord's
HVAC, plumbing and electrical systems located therein (but excluding
the HVAC system in the first floor space, which shall be Tenant's
responsibility), and Landlord shall also make all repairs to the Demised
Premises (but not to Tenant's property) which are structural in nature or
required due to fire, casualty, or other act of God; provided, however,
that Tenant shall make all repairs and replacements arising from its act,
neglect or default. Except as provided above, Tenant shall keep the
Demised Premises in good repair, including any special equipment
installed in the Demised Premises (such as, but not limited to, air
conditioners, transformers and plumbing), whether installed by Landlord
or Tenant, and Tenant shall, upon the expiration of the Term, yield and
deliver up the Demised Premises in like condition as when taken,
reasonable use and wear thereof and repairs required to be made by
Landlord excepted.
In the event that the Landlord shall deem it necessary or be
required by any governmental authority to repair, alter, remove,
reconstruct or improve any part of the Demised Premises or of the
Building (unless the same results from Tenant's act, neglect, default or
mode of operation in which event Tenant shall make all such repairs,
alterations and improvements), then the same shall be made by
Landlord with reasonable dispatch, and should the making of such
repairs, alterations or improvements cause any interference with
Tenant's use of the Demised Premises, such interference shall not
relieve Tenant from the performance of its obligations hereunder nor
shall such interference be deemed an actual or constructive eviction or
partial eviction or result in an abatement of rent, provided, that such
alterations and improvements are not the result of Landlord's gross
negligence or wrongful act. Notwithstanding the foregoing, Tenant shall,
at its own cost and expense, make all repairs and provide all
maintenance in connection with any alterations, additions or
improvements made by Tenant pursuant to Section 8 hereof. The
foregoing notwithstanding, if any such repairs , alterations or
improvements are undertaken by Landlord on a non-emergency basis,
Tenant shall be entitled to an equitable, proportional, abatement of rent
should the performance of such repairs, alterations or improvements
materially interfere with Tenant's use and enjoyment of the Demised
Premises for more than three (3) consecutive business days or more
than five (5) business days during any Lease Year. Such partial
abatement shall be limited to only that portion of the Demised Premises
interfered with, and only for such period of time as such interference
continues.
Section 8.00 ALTERATIONS.
Tenant shall not make any alterations, additions or
improvements to the Demised Premises (whether or not the same may
be structural in nature) without Landlord's prior written consent, and all
alterations, additions or improvements made by either party hereto to
the Demised Premises, except movable office furniture and equipment
installed at Tenant's expense, shall be the property of Landlord and
remain upon and be surrendered with the Demised Premises at the
expiration of the Term; provided, however, that Landlord may require
Tenant to remove any additions made by Tenant to the Demised
Premises and to repair any damage caused by such removal, and
provided further, that if Tenant has not removed its property and
equipment within ten (10) days after the expiration or termination of this
Lease, Landlord may elect to retain the same as abandoned property.
Tenant shall only use contractors approved by Landlord for the permitted
alterations to the Demised Premises and shall not permit any mechanics
liens to be placed or remain upon the Demised Premises.
Section 9.00 ASSIGNMENT AND SUBLETTING.
Section 9.1 Tenant covenants not to assign or transfer this
Lease or hypothecate or mortgage the same or sublet the Demised
Premises or any part thereof without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, but in the
event of any such assignment or transfer, Tenant shall remain fully
liable to perform all of the obligations under this Lease. Any
assignment, transfer (including transfers by operation of law or
otherwise), hypothecation, mortgage, or subletting without such written
consent shall give Landlord the right to terminate this Lease and to
re-enter and repossess the Demised Premises but Landlord's right to
damages shall survive. No consent by Landlord to any assignment,
transfer, hypothecation, mortgage or subletting on any one occasion
shall be deemed a consent to any subsequent assignment, transfer,
hypothecation, mortgage or subletting by Tenant or by any successors,
assigns, transferees, mortgagees or sublessees of Tenant. The
foregoing notwithstanding, Tenant shall have the right, without receiving
Landlord's prior written consent, to assign this Lease to an entity with
which Tenant shall merge or consolidate, provided such assignee has a
net worth not less than that of Tenant and, provided further, such
assignee executes an agreement in form and substance satisfactory to
Landlord pursuant to which it assumes all of Tenant's unperformed
obligations under this Lease, whether arising before or after the date of
assignment.
Section 9.2 The cumulative sale, issuance or transfer of any
voting capital stock of Tenant, if Tenant be a corporation at the signing
of this Lease, which results in a change in the voting control of Tenant,
shall be deemed to be an assignment of this Lease within the meaning
of this Section 9.
Section 9.3 If at the execution of this Lease, Tenant is a
sole proprietorship or a co-partnership, the subsequent cumulative sale
of fifty-one percent (51%) or more of its business to another person or
entity which would result in a change of the control of Tenant shall be
deemed to be an assignment of this Lease within the meaning of this
Section 9.
Section 9.4 If at any time or from time to time during the
Term, Tenant desires to sublet all or any part of the Demised Premises
or to assign this Lease, Tenant shall give notice to Landlord setting forth
the proposed subtenant or assignee, the terms of the proposed
subletting and the space so proposed to be sublet or the terms of the
proposed assignment, as the case may be. Landlord shall have the
option, exercisable by notice given to Tenant within twenty (20) days
after Tenant's notice is given, (a) if Tenant's request relates to a
subletting, either to sublet from Tenant such space at the rental and
other terms set forth in Tenant's notice, or, if the proposed subletting is
for the entire Demised Premises for the balance of the Term, to
terminate this Lease, or (b) if Tenant's request relates to an assignment,
either to have this Lease assigned to Landlord or to terminate this
Lease. If Landlord does not exercise such option, Tenant shall be free
for a period of one hundred eighty (180) days thereafter to sublet such
space or to assign this Lease to such third party if and only if Landlord
shall consent thereto, which consent shall not be unreasonably withheld,
provided that the sublease or assignment shall be on the same terms set
forth in the notice given to Landlord and that the rental to such subtenant
or assignee shall not be less than the then market rate for the Demised
Premises. Under no circumstances shall the Tenant hypothecate or
mortgage this Lease.
Section 9.5 In the event Tenant shall so sublet a portion of
the Demised Premises, or assign this Lease, all of the sums or other
economic consideration received by Tenant as a result of such
subletting or assignment whether denominated rent or otherwise, under
the sublease or assignment, 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 Demised
Premises subject to such sublease) shall be payable to Landlord as
additional rent under this Lease without affecting or reducing any other
obligations of Tenant hereunder.
Section 9.6 Regardless of Landlord's consent, no subletting
or assignment shall release Tenant of Tenant's obligations or alter the
primary liability of Tenant to pay the rental and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of
rental by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision hereof. Consent to one assignment
or subletting shall not be deemed consent to any subsequent assignment
or subletting. In the event of default by any assignee of Tenant or any
successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such assignee or successor. Landlord may
consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Tenant,
without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and such action shall not relieve
Tenant of liability under this Lease.
Section 9.7 In the event Tenant shall assign this Lease or
sublet the Demised Premises or request the consent of Landlord to any
assignment or subletting or if Tenant shall request the consent of
Landlord for any act that Tenant proposes to do, then Tenant shall pay
Landlord's reasonable attorneys' fees and processing fees incurred in
connection therewith.
Section 10.00 INSURANCE, INDEMNIFICATION AND WAIVER OF
SUBROGATION
Section 10.1 Tenant hereby waives all claims against
Landlord for damage to any property or injury or death of any person in,
upon or about the Demised Premises arising at any time and from any
cause other than solely by reason of the gross negligence or willful act of
Landlord, its employees or contractors, and Tenant shall indemnify and
hold harmless Landlord from and against any and all claims arising from
Tenant's use of the Demised Premises or other portions of the Building,
and shall further indemnify, defend and hold harmless Landlord from
and against any and all claims arising from a breach or default in the
performance of any obligation on Tenant's part to be performed under
the terms of this Lease, or arising from any negligence of the Tenant, or
any of the Tenant's agents, contractors or employees, except such as is
caused solely by gross negligence or willful act of Landlord, its
contractors or employees. The foregoing indemnity obligation of Tenant
shall include reasonable attorneys' fees, investigation costs and all other
reasonable costs and expenses incurred by Landlord from the first notice
that any claim or demand is to be made or may be made. The
provisions of this Section 10.1 shall survive the termination of this Lease
with respect to any damage, injury or death occurring prior to such
termination.
Section 10.2 Tenant shall procure and keep in effect during
the term hereof public liability and property damage liability insurance
with a minimum single limit of liability of Eleven Million and no/100
($11,000,000.00) Dollars per occurrence for bodily injury or death and/or
property damage. From time to time, Tenant shall increase the limit of
such liability insurance to such higher limit as any mortgage lender of
Landlord shall reasonably require. Such insurance shall specifically
include the liability assumed hereunder by Tenant, and shall provide that
it is primary insurance and not excess over or contributory with any other
valid, existing and applicable insurance in force for or on behalf of
Landlord, and shall provide that Landlord shall receive thirty (30) days'
written notice from the insurer prior to any cancellation or change of
coverage.
Section 10.3 Tenant shall procure and keep in effect fire
insurance (including standard extended coverage endorsement and
leakage from fire protective devices perils) for not less than the book
value of Tenant's trade fixtures, equipment and personal property, and
not less than the full replacement cost of leasehold improvements.
Section 10.4 Tenant shall deliver policies of the insurance
required pursuant to Sections 10.2 and 10.3 hereof or certificates thereof
to Landlord on or before the Commencement Date, and thereafter at
least thirty (30) days before the expiration dates of expiring insurance
policies.
Section 10.5 Landlord and Tenant shall each obtain from
their respective insurers under all policies of property insurance
maintained by either of them at any time during the Term insuring or
covering the Building or any portion thereof or operations therein, a
waiver of all rights of subrogation which the insurer of one party might
have against the other party, and Landlord and Tenant shall each
indemnify the other against any loss or expense, including reasonable
attorneys' fees, resulting from the failure to obtain such waiver and, so
long as such waiver is outstanding, each party waives, to the extent of
the proceeds received under such policy, any right of recovery against
the other party for any loss covered by the policy containing such
waiver; provided, however, that if at any time their respective insurers
shall refuse to permit waivers of subrogation, Landlord or Tenant, in
each instance, may revoke said waiver of subrogation effective thirty
(30) days from the date of such notice, unless within such thirty (30) day
period, the other is able to secure and furnish (without additional
expense) equivalent insurance with such waivers with other companies
satisfactory to the other party.
Section 11.00 FIRE.
Section 11.1 In the event the Demised Premises are
damaged or destroyed in whole or in part by fire or other insured
casualty during the term hereof, Landlord shall, at its own cost and
expense, repair and restore the Demised Premises and the Common
Areas of the Building to tenantable condition with reasonable dispatch,
and the rent, herein provided shall be reduced in direct proportion to the
amount of the Demised Premises so damaged or destroyed until such
time as the Demised Premises are restored to a condition substantially
equivalent to that which existed prior to the occurrence of such fire or
other casualty. If the Demised Premises cannot be restored, or if, in
fact, they are not restored to tenantable condition within a period of one
hundred eighty (180) days, Landlord and Tenant shall each have the
right to terminate this Lease upon written notice to the other (Tenant's
cancellation notice shall be given within thirty (30) days after receipt of
written notice from Landlord that the Demised Premises cannot be
timely restored), and any rent paid for any period in advance of the date
of such damage and destruction shall be refunded to Tenant. If the
Demised Premises are damaged due to fire or other casualty, Tenant
shall, at its own cost and expense, remove such of its furniture and other
belongings from the Demised Premises as Landlord shall require in
order to repair and restore the Demised Premises. Landlord shall use
reasonable discretion as to the extent of the untenantability of the
Demised Premises and of the time required for the repair and rebuilding
of the same and no such damage or untenantability shall be deemed
either an actual or constructive eviction or result in an abatement of
rental (except as provided herein for insured casualties).
Section 11.2 In the event the Building is destroyed to the
extent of more than one-half (1/2) of the then value thereof, Landlord
shall have the right to terminate this Lease upon written notice to
Tenant, in which event any rent paid in advance of the date of such
destruction shall be refunded to Tenant.
Section 11.3 Landlord and Tenant do each hereby release
the other from any liability resulting from damage by fire or any other
insured peril and including perils covered by extended coverage
insurance with waiver of subrogation normally available in the State of
Michigan irrespective of the cause therefor; provided, however, that if an
increase in premium is required for such waiver of subrogation, the other
party will pay such increase or the waiver will not be furnished.
Section 12.00 EMINENT DOMAIN.
If all or any part of the Demised Premises shall be taken as a
result of the exercise of the power of eminent domain, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the
case of partial taking, Landlord and Tenant shall each have the right to
terminate this Lease as to the balance of the Demised Premises by
notice to the other party within thirty (30) days after such date. In the
event of any taking, Landlord shall be entitled to any and all
compensation, damages, income, rent, awards, or any interest therein
whatsoever which may be paid or made in connection therewith, and
Tenant shall have no claim against Landlord or the condemning
authority for the value of any unexpired term of this Lease or otherwise.
Provided, that nothing contained herein shall preclude Tenant from
seeking and obtaining, at its own cost and expense, an award from the
condemning authority for loss of business, the value of any personal
property of Tenant taken by the condemning authority or moving
expenses, so long as such award will not result in a diminution of the
award made to Landlord. In the event of a partial taking of the Demised
Premises which does not result in a termination of this Lease, the rental
thereafter to be paid shall be reduced pro-rata in proportion to the
square footage of the Demised Premises so taken.
Section 13.00 RULES.
Tenant shall faithfully observe and comply with the rules and
regulations annexed to this Lease as Exhibit C and, after notice thereof,
all reasonable modifications thereof and additions thereto from time to
time promulgated in writing by Landlord, provided such modification or
addition does not abridge any express provision of this Lease or impose
an additional material financial obligation on Tenant. Landlord shall not
be responsible to Tenant for the nonperformance by any other tenant or
occupant of the Building of any such rules and regulations.
Section 14.00 ENTRY BY LANDLORD.
Section 14.1 Landlord and designees may enter the Demised
Premises at reasonable hours to (a) inspect the same, (b) exhibit the
same to prospective purchasers, lenders or tenants, (c) determine
whether Tenant is complying with all of its obligations hereunder, (d)
supply janitor service and any other services to be provided by Landlord
to Tenant hereunder, and (e) make repairs required of Landlord under
the terms hereof or repairs to any adjoining space or utility services or
make repairs, alterations or improvements to any other portion of the
Building; provided, however, that all such work shall be done as
promptly as reasonably possible. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Demised
Premises or any other loss occasioned by such entry. Anything
contained herein to the contrary notwithstanding, in the event any such
repairs, alterations or improvements are undertaken by Landlord on a
non-emergency basis, such repairs, alterations or improvements shall be
performed in such a manner as to minimize the interference with
Tenant's daily business operation and, in the event such non-emergency
repairs, alterations or improvements materially interfere with Tenant's
ability to use and enjoy the Demised Premises for more than five (5)
consecutive business days, or more than eight (8) business days during
any Lease Year, Tenant shall be entitled to an equitable abatement of
rental. Such partial abatement shall be limited to only that portion of the
Demised Premises interfered with, and only for such period of time as
such interference continues.
Section 14.2 Landlord shall at all times have and retain a key
or access card with which to unlock all of the doors in, on or about the
Demised Premises (excluding Tenant's vaults, safes and similar areas
designated in writing by Tenant in advance); and Landlord shall have the
right to use any and all means which Landlord may deem proper to open
said doors in an emergency in order to obtain entry to the Demised
Premises, and any entry to the Demised Premises obtained by Landlord
by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into or a
detainer of the Demised Premises or an eviction, actual or constructive,
of Tenant from the Demised Premises, or any portion thereof.
Section 15.00 EVENTS OF DEFAULT.
Section 15.1 The occurrence of any one or more of the
following events (hereinafter referred to as "Events of Default") shall
constitute a breach of this Lease by Tenant: (a) if Tenant shall fail to
pay the rent when and as the same becomes due and payable and such
failure shall continue for more than ten (10) days; or (b) if Tenant shall
fail to pay any other sum due to Landlord under this Lease when and as
the same becomes due and payable and such failure shall continue for
more than ten (10) days; or (c) if Tenant shall fail to perform or observe
any other term hereof or of the rules and regulations referred to in
Section 13 hereof to be performed or observed by Tenant, such failure
shall continue for more than thirty (30) days after written notice thereof
from Landlord, and Tenant shall not within such thirty (30) day period
commence with due diligence and dispatch the curing of such default,
or, having so commenced, shall thereafter fail or neglect to prosecute or
complete with due diligence and dispatch the curing of such default
(except if the observance or performance of such term, covenant or
condition is of such nature that observance or performance cannot be
reasonably attained within thirty (30) days, then within such greater time
period as is reasonably required to, with due diligence and dispatch,
attain such observance or performance); or (d) if Tenant shall make a
general assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts as they become due or shall file a petition in
bankruptcy, or shall be adjudicated as insolvent or shall file a petition in
any proceeding seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or shall file an answer admitting or
fail timely to contest or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; or
(e) if within ninety (90) days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation, such proceeding shall not have been
dismissed, or if, within ninety (90) days after the appointment without the
consent or acquiescence of Tenant, of any trustee, receiver or liquidator
of Tenant or of any material part of its properties, such appointment
shall not have been vacated; or (f) if this Lease or any estate of Tenant
hereunder shall be levied upon under any attachment or execution and
such attachment or execution is not vacated within ten (10) days, or (g)
if the Demised Premises are abandoned or vacated by Tenant.
Section 15.2 If, as a matter of law, Landlord has no right on
the bankruptcy of Tenant to terminate this Lease, then, if Tenant, as
debtor, or its trustee wishes to assume or assign this Lease, in addition
to curing or adequately assuring the cure of all defaults existing under
this Lease on Tenant's part on the date of filing of the proceeding (such
assurances being defined below), Tenant, as debtor, or the trustee or
assignee must also furnish adequate assurances of future performance
under this Lease (as defined below). Adequate assurance of curing
defaults means the posting with Landlord of a sum in cash sufficient to
defray the cost of such a cure. Adequate assurance of future
performance under this Lease means posting a deposit equal to three (3)
months' rent, including all other charges payable by Tenant hereunder,
and, in the case of an assignee, assuring Landlord that the assignee is
financially capable of assuming this Lease, and that its use of the
Demised Premises will not be detrimental to the other tenants in the
Building or Landlord. In a reorganization under Chapter 11 of the
Bankruptcy Code, the debtor or trustee must assume this Lease or
assign it within one hundred twenty (120) days from the filing of the
proceeding, or it shall be deemed to have rejected and terminated this
Lease.
Section 16.00 REMEDIES.
If any of the Events of Default shall occur, then Landlord shall
have the following remedies:
a. Landlord at any time after the Event of Default,
at Landlord's option, may give to Tenant seven
(7) days' written notice of termination of this
Lease, and in the event such notice is given,
this Lease shall come to an end and expire
(whether or not the Term shall have
commenced) upon the expiration of such seven
(7) days, but Tenant shall remain liable for
damages as provided in Section 17 hereof.
b. Either with or without terminating this Lease,
Landlord may immediately or at any time after
the Event of Default and failure to cure within
the cure periods, if any, provided in Section
15.00 above, or after the date upon which this
Lease shall expire, reenter the Demised
Premises or any part thereof, without notice,
except as required by law, but subject to the
provisions of Section 5.6 above, either by
summary proceedings or by any other
applicable action or proceeding, and may
repossess the Demised Premises and remove
any and all of Tenant's property and effects
from the Demised Premises.
c. Either with or without terminating this Lease,
Landlord may relet the whole or any part of the
Demised Premises from time to time, either in
the name of Landlord or otherwise, to such
tenant or tenants, for such term or terms ending
before, on or after the expiration date, at such
rental or rentals and upon such other conditions,
which may include concessions and free rent
periods, as Landlord, in its sole discretion, may
determine. In the event of any such reletting,
Landlord shall not be liable for the failure to
collect any rental due upon any such reletting,
and no such failure shall operate to relieve
Tenant of any liability under this Lease or
otherwise to affect any such liability; and
Landlord may make such repairs, replacements,
alterations, additions, improvements,
decorations and other physical changes in and
to the Demised Premises as Landlord, in its sole
discretion, considers advisable or necessary in
connection with any such reletting or proposed
reletting, without relieving Tenant of any liability
under this Lease or otherwise affecting such
liability.
d. Landlord shall have the right to recover the
rental and all other amounts payable by Tenant
hereunder as they become due (unless and until
Landlord has terminated this Lease) and all
other damages incurred by Landlord as a result
of an Event of Default.
e. All rights, options and remedies of Landlord
contained in this Lease, shall be construed and
held to be cumulative, and no one of them shall
be exclusive of the other, and Landlord shall
have the right to pursue any one or all of such
remedies or any other remedy of relief which
may be provided by law, whether or not stated
in this Lease. No waiver of any Event of Default
of Tenant hereunder shall be implied from any
acceptance by Landlord of any rent or other
payments due hereunder or any omission by
Landlord to take any action on account of such
Event of Default if such Event of Default
persists or is repeated, and no express waiver
shall affect any Event of Default other than as
specified in said waiver. The consent or
approval of Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall
not be deemed to waive or render unnecessary
Landlord's consent or approval to or of any
subsequent similar acts by Tenant.
The foregoing notwithstanding, if the default is a non-payment of
rent or other sum due to Landlord within the time provided in Section
15.1, clause (a) or (b) of, Landlord agrees that it will not pursue any of its
remedies under this Section 16 until, with respect to the first two of such
defaults within any lease year, Landlord shall have first given Tenant
written notice of Tenant's default and Tenant shall have failed to cure
the same within seven (7) days after delivery of such notice by Landlord
to Tenant. Provided, that Landlord shall not be required to give such
notice more than six (6) times during the initial term of this Lease nor
more than two (2) times during any extension term of this Lease, before
pursuing any of its remedies hereunder.
Section 17.00 TERMINATION UPON DEFAULT.
Upon termination of this Lease by Landlord pursuant to Section
16 hereof, Landlord shall be entitled to recover from Tenant the
aggregate of: (a) the unpaid rental which had been earned at the time of
termination; (b) the worth at the time of award of the amount by which
the unpaid rental for the balance of the Term exceeds the reasonable
rental value of the Demised Premises for such period; and (c) any other
amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under
this Lease or which in the ordinary course of things would be likely to
result therefrom. The "worth at the time of award" of the amount
referred to in clause (b) above is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of Chicago at the time
of termination.
Section 18.00 LANDLORD'S RIGHT TO CURE DEFAULTS.
All covenants, terms and conditions to be performed by Tenant
under any of the terms of this Lease shall be at its sole cost and
expense and without any abatement of rental, except as expressly
provided in this Lease. If Tenant shall fail to pay any sum of money,
other than rent and other sums to be paid to Landlord as additional rent,
required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder and such failure shall continue for
thirty (30) days after delivery of written notice thereof by Landlord,
Landlord may, but shall not be obligated so to do, and without waiving or
releasing Tenant from any obligations of Tenant, make any such
payment or perform any such other act on Tenant's part to be made or
performed as in this Lease provided. All sums so paid by Landlord and
all necessary incidental costs shall be deemed additional rent hereunder
together with interest on such costs at the rate of two (2%) percent in
excess of the then current "prime rate" announced by Michigan National
Bank of Detroit and shall be payable to Landlord on demand, and
Landlord shall have (in addition to any other right or remedy of Landlord)
the same rights and remedies in the event of the nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of rent.
Section 19.00 ATTORNEY'S FEES.
If as a result of any breach or default in the performance of any
of the provisions of this Lease, Landlord uses the services of any
attorney in order to secure compliance with such provisions or recover
damages therefor, or to terminate this Lease or evict Tenant, Tenant
shall reimburse Landlord upon demand for any and all attorney's fees
and expenses so incurred by Landlord. In the event of litigation between
the parties concerning or arising out of this Lease which is adjudicated
wholly in favor of one of the parties, the losing party shall reimburse the
prevailing party for its litigation costs and expenses, including
reasonable attorneys fees.
Section 20.00 SUBORDINATION.
Section 20.1 This Lease is and shall be subject and
subordinate, at all times, to (a) the lien of any mortgage or mortgages
which may now or hereafter affect the Building, and to all advances
made or hereafter to be made upon the security thereof and to the
interest thereon, and to any agreements at any time made modifying,
supplementing, extending or replacing any such mortgages, provided
the mortgagee under any subsequent mortgage shall join in the
execution of a subordination, non-disturbance and attornment
agreement or similar agreement agreeing to recognize this Lease in the
event of Landlord's default under such mortgage, and (b) any ground,
master or underlying lease which may now or hereafter affect the
Building, including all amendments, renewals, modifications,
consolidation, replacements and extensions thereof, which may be freely
made by Landlord as it deems appropriate, provided the lessor under
any subsequent ground lease, master lease or other underlying lease
shall join in the execution of a subordination, non-disturbance and
attornment agreement or similar agreement agreeing to recognize this
Lease in the event of Landlord's default under such lease, Tenant
agrees to attorn to the successor in interest of Landlord following any
transfer of such interest which occurs either voluntarily or by operation of
law and to recognize such successor as the Landlord under this Lease;
provided, that Landlord's successor in interest agrees to recognize this
Lease and not to disturb Tenant's enjoyment of the Demised Premises
so long as Tenant fully performs all of its obligations under this Lease.
Notwithstanding the foregoing, at the request of the holder of any of the
aforesaid mortgage or mortgages or the lessor under the aforesaid
ground, master or underlying lease, this Lease may be made prior and
superior to such mortgage or mortgages and/or such ground, master or
underlying lease. Such attornment is to be effective and self-operative
without the execution of any further instruments upon successors in
interest succeeding to the interest of the Landlord under this Lease.
Section 20.2 Tenant shall, contemporaneously with the
execution hereof, execute and deliver to Landlord a Subordination,
Non-Disturbance and Attornment Agreement in the form attached hereto
as Exhibit D. At the request of Landlord, Tenant shall execute and
deliver such further instruments as may be reasonably required to
implement the provisions of this Section 20. Tenant hereby irrevocably,
during the term of this Lease, constitutes and appoints Landlord as
Tenant's agent and attorney-in-fact to execute any such instruments if
Tenant shall fail or refuse to execute the same within ten (10) days after
delivery of written notice by Landlord.
Section 20.3 If, as a condition of approving this Lease,
Landlord's mortgagee shall request reasonable modifications of this
Lease, Tenant shall not unreasonably withhold or delay its agreement to
such modifications, provided that such modifications do not increase the
obligations or materially and adversely affect the rights of Tenant under
this Lease.
Section 21.00 NO MERGER.
The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation hereof, shall not work a merger, and shall, at the
option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an
assignment to it of any or all such subleases or subtenancies.
Section 22.00 NONLIABILITY OF LANDLORD.
Section 22.1 In the event the Landlord hereunder or any
successor in interest shall sell, assign or transfer its interest as Lessee
under the Master Lease, all liabilities and obligations on the part of the
original Landlord or such successor in interest under this Lease accruing
thereafter shall terminate, and thereupon all such liabilities and
obligations shall be binding upon the new assignee. Tenant shall attorn
to such new assignee.
Section 22.2 Landlord shall not be responsible or liable to
Tenant for any loss or damages that may be occasioned by or through
the acts or omissions of persons occupying adjoining areas or any part
of the area adjacent to or connected with the Demised Premises or any
part of the Building or for any loss or damage resulting to Tenant or its
property from burst, stopped or leaking water, fire sprinkler system, gas,
sewer or steam pipes, or from theft or a failure of the security systems in
the Building, or for any damage or loss of property within the Demised
Premises from any cause other than solely by reason of the gross
negligence or willful act of Landlord, its employees, agents or
contractors, and no such occurrence shall be deemed to be an actual or
constructive eviction from the Demised Premises or result in an
abatement of rental.
Section 22.3 If Landlord shall fail to perform any covenant,
term or condition of this Lease upon Landlord's part to be performed,
and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only against
the right, title and interest of Landlord in the Building and out of rents or
other income from the Building receivable by Landlord, or out of the
consideration received by Landlord from the sale or other disposition of
all or any part of Landlord's right, title and interest in the Building, and
Landlord shall not be personally liable for any deficiency out of any other
assets of Landlord.
Section 23.00 ESTOPPEL CERTIFICATE.
At any time and from time to time but not less than ten (10) days
prior written request by Landlord, Tenant will promptly execute,
acknowledge and deliver to Landlord, at no cost to Landlord, a certificate
indicating (a) that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect, as modified, and stating the date and nature of each
modification), (b) the date, if any, to which rental and other sums
payable hereunder have been paid, (c) that no notice has been received
by Tenant of any default which has not been cured, except as to defaults
specified in said certificate, and (d) such other matters as may be
reasonably requested by Landlord. Any such certificate may be relied
upon by any prospective purchaser or mortgagee of the Building or any
part thereof.
Section 24.00 NO LIGHT, AIR OR VIEW EASEMENT.
Any diminution or shutting off of light, air or view by any
structure which may be erected on lands adjacent to the Building shall in
no way affect this Lease or impose any liability on Landlord.
Section 25.00 HOLDING OVER.
This Lease shall terminate without further notice upon the
expiration of the Term, and any holding over by Tenant after such
expiration shall not constitute a renewal hereof, or give Tenant any
rights under this Lease, it being understood and agreed that this Lease
cannot be renewed, extended, or in any manner modified except in
writing, signed by both parties hereto. If Tenant shall hold over for any
period after the expiration of said Term, Landlord may, at its option,
exercised by written notice to Tenant, treat Tenant as a tenant from
month-to-month, commencing on the first day following the expiration of
the Term and subject to the terms and conditions herein contained. In
any event, unless and until Landlord and Tenant shall have entered into
a new written lease or a written renewal or extension of this Lease, the
rent to be paid for any holdover period, whether as a month-to-month
tenant or otherwise, shall be at a rate equal to one hundred fifty percent
(150%) of the monthly rental payable for the last full month under this
Lease, plus all other charges payable hereunder until such time as
Tenant has actually vacated the Demised Premises and turned
possession of the Demised Premises over to Landlord. If Tenant fails
to surrender the Demised Premises, upon the expiration of the Term,
despite demand to do so by Landlord, Tenant shall indemnify, defend
and hold Landlord harmless from all loss or liability, including without
limitation, any claim made by any succeeding Tenant based on, or
resulting from or related to such failure to surrender.
Section 26.00 ABANDONMENT.
If Tenant shall abandon or surrender the Demised Premises, or
be dispossessed by process of law or otherwise, any personal property
belonging to Tenant and left on the Demised Premises shall be deemed
to be abandoned, or, at the option of Landlord, may be removed by
Landlord at Tenant's expense.
Section 27.00 WAIVER.
Section 27.1 The waiver by Landlord of any agreement,
condition or provision herein contained shall not be deemed to be a
waiver of any subsequent breach of the same or any other agreement,
condition or provision herein contained, nor shall any custom or practice
which may grow up between the parties in the administration of the
terms hereof be construed to waive or to lessen the right of Landlord to
insist upon the performance by Tenant of the terms hereof in strict
accordance with said terms. The subsequent acceptance of rental
hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any agreement, condition or provision of
this Lease, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach
at the time of acceptance of such rental.
Section 27.2 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 Demised Premises by Tenant or
any person claiming through or under Tenant, any claim of injury or
damage, and any emergency or other statutory remedy; provided,
however, the foregoing waiver shall not apply to any action for personal
injury or property damage. If Landlord commences any summary or
other proceeding for nonpayment of rent or the recovery of possession
of the Demised Premises, Tenant shall not interpose any counterclaim
of whatever nature or description in any such proceeding, unless the
failure to raise the same would constitute a waiver thereof.
Section 28.00 NOTICES.
All notices, consents, requests, demands, designations or other
communications which may or are required to be given by either party
to the other hereunder shall be in writing and shall be deemed to have
been duly given when personally delivered or deposited in the United
States mail, certified or registered, postage prepaid, and addressed as
follows: to Tenant at the address set forth in the first paragraph of this
Lease, or to such other place as Tenant may from time to time designate
in a written notice to Landlord; to Landlord at the address set forth in the
first paragraph of this Lease, or to such other place as Landlord may
from time to time designate in a written notice to Tenant; or, in the case
of Tenant, delivered to Tenant at the Demised Premises. Tenant hereby
appoints as its agent to receive the service of all summary or distraint
proceedings and notices thereunder the person in charge of or
occupying the same, and such service may be made by attaching the
same on the main entrance of the Demised Premises.
Section 29.00 COMPLETE AGREEMENT.
There are no oral agreements between Landlord and Tenant
affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and
understandings, if any, between Landlord and Tenant or displayed by
Landlord to Tenant with respect to the subject matter of this Lease or the
Building. There are no representations between Landlord and Tenant
other than those contained in this Lease and all reliance with respect to
any representations is solely upon such representations. This Lease
cannot be amended, modified or terminated except by an agreement in
writing, signed by the party against whom enforcement of such
amendment, modification or termination is sought.
Section 30.00 CORPORATE AUTHORITY.
If Tenant signs as a corporation, each of the persons executing
this Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a fully authorized and existing corporation, that Tenant has
and is qualified to do business in Michigan, that the corporation has full
right and authority to enter into this Lease, and that each and all of the
persons signing on behalf of the corporation are authorized to do so.
Section 31.00 INABILITY TO PERFORM.
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 Landlord's reasonable control, Landlord is unable to furnish or is
delayed in furnishing any utility or service required to be furnished by
Landlord under the provisions of Section 6 hereof or any other
provisions of this Lease or any collateral instrument, or is unable to
perform or make or is delayed in performing or making any installations,
decorations, repairs, alterations, additions, or improvements, whether
required to be performed or made under this Lease or under any
collateral instrument, or is unable to fulfill or is delayed in fulfilling
any of Landlord's other obligations under this Lease or any collateral
instrument, no such inability or delay shall constitute an actual or
constructive eviction in whole or in part, or entitle Tenant to any
abatement or diminution of rental or other charges due hereunder or
relieve Tenant from any of its obligations under this Lease, except as
expressly provided in 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.
Section 32.00 COVENANT OF QUIET ENJOYMENT.
Upon Tenant paying the rental and other charges due hereunder
and performing all of Tenant's obligations under this Lease, Tenant may
peacefully and quietly enjoy the Demised Premises during the Term,
without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord,
subject, however, to the provisions of this Lease and to any mortgages
or ground, master or underlying leases referred to in Section 20 hereof.
Provided, however, that nothing contained in this Lease shall be deemed
to obligate Landlord to exercise any option to extend or renew the
Master Lease which may be contained therein nor any option to
purchase which now exists or may hereafter arise in favor of Landlord,
nor shall Tenant have any right to require Landlord to exercise any such
options, whether by judgment for specific performance or otherwise.
Section 33.00 MASTER LEASE.
Tenant acknowledges that Landlord's interest in the Demised
Premises is as lessee pursuant to a master lease (the "Master Lease")
dated May 3, 1985, as amended and restated November 1, 1995, with
MG-LXV Associates Limited Partnership as lessor, which Master Lease
is incorporated herein by reference. Notwithstanding any provision of
this Lease, Tenant agrees that this Lease, including any extended term,
is and shall be subject and subordinate at all times to the Master Lease.
Tenant acknowledges receipt of a copy of the Master Lease and agrees
that it shall comply with the provisions of Section 6 thereof, which is
incorporated herein by this reference, except to the extent of any conflict
with the express terms of this Lease, in which case the terms of this
Lease shall govern. The foregoing notwithstanding, Landlord agrees to
indemnify Tenant for any costs or liability incurred by Tenant in
complying with the provisions of Section 6 of the Master Lease to the
extent that the obligations imposed thereby are imposed on Landlord by
the terms of this Lease.
Section 34.00 SECURITY DEPOSIT. (INTENTIONALLY DELETED).
Section 35.00 ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount
than the rent which is stipulated in this Lease shall be deemed to be
other than on account of the earliest stipulated rent nor shall any
endorsement or statement on any account 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 36.00 MISCELLANEOUS.
Section 36.1 The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. If there be more
than one Tenant, the obligations hereunder imposed upon Tenant shall
be joint and several.
Section 36.2 Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
Section 36.3 The agreements, conditions and provisions
herein contained shall, subject to the provisions as to assignment, set
forth in Section 9 hereof, apply to and bind the heirs, executors,
administrators, successors and permitted assigns of the parties hereto.
Section 36.4 Tenant shall not, without the consent of
Landlord, use the name of the Building for any purpose other than as the
address of the business to be conducted by Tenant in the Demised
Premises. Landlord reserves the right to select the name of the Building
and to make such changes of name as it deems appropriate from time to
time.
Section 36.5 If any provisions of this Lease shall be
determined to be illegal or unenforceable, such determination shall not
affect any other provisions of this Lease and all such other provisions
shall remain in full force and effect.
Section 36.6 This Lease shall be governed by and construed
pursuant to the laws of the State of Michigan.
Section 37.00 OPTIONS, RIGHT OF FIRST OPPORTUNITY TO
LEASE.
Section 37.1 Landlord hereby grants unto Tenant two separate
options to extend the Lease Term for two additional periods, hereinafter
called "Renewal Periods" of five (5) years each. In the event Tenant
exercises the Option to Renew, then and in that event, all of the terms,
covenants, conditions, provisions and agreements of this Lease shall apply,
except as provided in this section 37.1, including the minimum rental which
is more particularly set forth hereinafter.
The Option to Renew shall be exercised by Tenant by giving written
notice to the Landlord not more than twelve (12) months and not less than
six (6) months prior to the expiration of the initial Lease Term or first
Renewal Period, as applicable, and upon such exercise, the Renewal Period
shall become part of the Term hereof. The exercise by Tenant of such
option shall be conditional upon (a) Tenant not being in default in the
payment of any rent or other sums due under this Lease, and (b) there being
no existing defaults by Tenant in any other Lease provisions at the time of
such exercise.
During the first Renewal Period, the minimum annual rent shall be
95% of the minimum annual rent then established by Landlord for new
tenants of the Building at the time Tenant exercises its option to renew. The
minimum annual rent for the second Renewal Period shall be 100% of the
minimum annual rent then established by Landlord for new tenants of the
Building at the time Tenant exercises its option to renew. Provided, that at
no time during any Renewal Period shall the minimum annual rent be less
than the minimum annual rent payable during the last lease year of the initial
lease term or the preceding Renewal Period, as applicable.
Section 37.2 Landlord hereby grants unto Tenant an option to
terminate this Lease as to the first floor space, only, upon the terms and
conditions contained in this Section 37.2. Such partial termination of this
Lease shall be effective only as of the close of business on the last day of
the second, third, fourth, or fifth full Lease Year of the initial term, as
Tenant shall elect. This option may be exercised by Tenant by giving Landlord
written notice of Tenant's election to exercise this partial termination option
which notice shall be given to Landlord not less than six (6) months, nor
more than twelve (12) months, prior to the end of the Lease Year at which
Tenant desires this partial termination to be effective, and upon payment of
the early termination premium as hereinafter set forth. As a condition
precedent to the partial termination of this Lease pursuant to this Section
37.2, Tenant (i) shall pay all rent and other sums payable by Tenant
pursuant to the terms of this Lease, and perform all other obligations
imposed upon Tenant by the terms of this Lease through and including the
date of partial termination and, (ii) shall pay to Landlord, prior to the last
date of the Lease Year upon which Tenant elects to make such partial
termination effective, an early termination premium as follows:
A. If termination is effected at the end of the second
Lease Year, an early termination premium equal to
$42.00 per rentable square foot of the first floor space;
B. If termination is effected at the end of the third Lease
Year, an early termination premium equal to $38.00
per rentable square foot of the first floor space;
C. If termination is effected at the end of the fourth Lease
Year, an early termination premium equal to $32.00
per rentable square foot of the first floor space; and
D. If termination is effected at the end of the fifth Lease
Year, an early termination premium equal to $26.00
per rentable square foot of the first floor space.
The early termination premium is intended to compensate Landlord for
losses suffered and expenses incurred as a result of Tenant's early
termination and shall be retained by the Landlord as liquidated damages, not
as a penalty. If Tenant fails to timely satisfy both of the conditions
precedent to partial early termination set forth in this Section 37.2, the
partial early termination option set forth in this Section 37.2, and Tenant's
attempted exercise thereof, shall be null and void and of no effect, and this
Lease shall continue in full force and effect in accordance with its terms with
respect to the entire Demised Premises. Tenant shall have no right to effect a
partial termination of the Lease pursuant to this Section 37.2 after the
fifth Lease Year of the Initial Term.
Section 37.3 Landlord hereby grants unto Tenant an option to
terminate this Lease as to the entire Demised Premises effective at the
close of business on the last day of the fifth (5th) full Lease Year of the
initial Term. This option may be exercised by Tenant by giving Landlord
written notice of Tenant's election to exercise this option to terminate which
notice must be given to Landlord not less than twelve (12) months prior to the
end of the fifth full Lease Year, and upon payment of the early termination
premium as hereinafter set forth. As a condition precedent to the
termination of this Lease pursuant to this option to terminate, Tenant (i)
shall pay all rent and other sums payable by Tenant pursuant to the terms of
this Lease, and perform all other obligations imposed upon Tenant by the terms
of this Lease, through and including the date of termination, and (ii) shall
pay to Landlord, prior to the last day of the fifth (5th) full Lease Year, an
early termination premium equal to $26.00 per rentable square foot of the
Demised Premises, determined as provided in Section 1.1 above. The early
termination premium is intended to compensate Landlord for losses suffered
and expenses incurred as a result of Tenant's early termination and shall be
retained by Landlord as liquidated damages, not as a penalty. If Tenant fails
to timely satisfy both of the conditions precedent to early termination set
forth in this Section 37.3, the early termination option set forth in this
Section 37.3, and Tenant's attempted exercise thereof, shall be null and void
and of no effect, and this Lease shall continue in full force and effect in
accordance with its terms.
Section 37.4 Landlord hereby grants onto Tenant, so long as
Tenant is not in default under the Lease, a right of first opportunity to lease
any space on the third or fourth floors of the north one-half of the Building
which is contiguous to the Demised Premises (hereinafter the "ROFO
Premises") as it becomes available during the initial Lease Term. This right
of first opportunity shall be limited to the initial Term of this Lease, shall
be subordinate to any rights or options of existing tenants with respect to
the ROFO Premises, and shall not preclude Landlord from renewing and/or
extending the lease of any existing or future tenant of the ROFO Premises.
At such time as Landlord becomes aware that any portion of the
ROFO Premises will become available to lease to Tenant at any time during
the initial Lease Term of this Lease, Landlord shall so notify Tenant in
writing, including the date on which the space will become available for
occupancy by Tenant. If Tenant desires to exercise this right of first
opportunity with respect to that space, Tenant shall so notify Landlord in
writing within 15 days after receipt of Landlord's notice. If Tenant elects
not to exercise this right of first opportunity with respect to such space, or
if Tenant fails to deliver written notice of its intent to exercise this right
of first opportunity within said 15 days, Tenant's right shall be deemed to be
waived with respect to that space, Tenant shall have no further rights with
respect to that space, and Landlord shall be free to rent that space to any
other person or entity.
If Tenant does timely exercise this right of first opportunity with
respect to all or any portion of the ROFO Premises, Landlord and Tenant
shall execute an amendment to this Lease adding that portion of the ROFO
Premises to the Demised Premises effective on the earlier of the date on
which Landlord has substantially completed any tenant improvements
agreed to between Landlord and Tenant, or sixty (60) days after Landlord's
receipt of Tenant's notice of exercise of this right of first opportunity, but
in no event sooner than thirty (30) days after the space has been vacated by
the prior tenant. The portion of the ROFO Premises thereby added to the
Demised Premises shall be accepted by Tenant on an "as is" basis unless
Landlord and Tenant otherwise then agree in writing, except that Tenant
shall be entitled to a tenant improvement allowance determined as
hereinafter provided. The tenant improvement allowance shall be
determined by multiplying the usable square feet in the portion of the ROFO
Premises to be added to the Demised Premises by $20.00 per square foot,
and then multiplying the product by a fraction, the numerator of which is the
number of full months remaining in the initial Lease Term and the
denominator of which is 120. Tenant shall be obligated to pay its pro-rata
share of Operating Expenses and Real Property Taxes with respect to the
portion of the ROFO Premises added to the Demised Premises on the same
basis as provided in this Lease.
Section 37.5 The options and rights granted by this Section 37.00
shall be personal to First of Michigan Corporation and shall not be
exercisable by any assignee or sublessee thereof, nor may they be
exercised by Tenant if this Lease has been assigned or any portion of the
Demised Premises subleased by Tenant to any person or entity, including an
affiliate, with or without Landlord's consent. If Tenant assigns this Lease
or subleases any portion of the Demised Premises to any person or entity,
including an affiliate, without Landlord's prior written consent subsequent to
exercising any option or right, such assignment or subletting shall constitute
a default under this Lease and Landlord shall have all rights afforded
Landlord in this Lease or at law including, without limitation, the right to
terminate this Lease.
Section 38.00 PARKING.
Landlord shall make available to Tenant, at additional cost as
hereafter provided, one hundred thirty (130) vehicle parking spaces, of which
up to forty-eight (48) vehicle parking spaces, at Tenant's option, may be
located in the parking deck adjacent to the River Place development and the
balance on one or more of Landlord's surface parking lots, to be designated
by Landlord, within the River Place Development. Up to eight (8) of the deck
parking spaces as Tenant shall determine, shall be reserved spaces, to be
designated by Landlord, within the executive parking area of the deck.
In addition, Landlord will post "reserved for FOM customers" signs
on up to five parking spaces (which shall be part of Tenant's total 130-space
allocation), some or all of which may be located in the parking deck, as
Tenant determines. Landlord agrees that it will instruct the parking deck
security personnel to cooperate with Tenant in providing access to such
spaces by Tenant's clients and invitees, but security personnel shall not be
obligated to admit anyone to the deck who does not have a deck parking
pass without prior telephone notice from Tenant. Tenant acknowledges that
Landlord shall not be responsible for policing the use of Tenant's client
parking spaces and that Landlord cannot assure Tenant that those spaces
will not be used by other users of the parking deck.
The parking spaces shall not otherwise be specifically reserved to
Tenant, but Landlord shall provide Tenant with appropriate parking permits
for the deck and surface lot. Tenant shall also have the right to rent, on a
space-available basis, additional parking spaces in either the deck or surface
lot at any time during the term of this Lease. All parking spaces shall be
paid for monthly, in advance, at the then prevailing parking rates being
charged by Landlord, presently $95.00 per month for executive parking spaces,
$75.00 per month for other deck parking and $35.00 per month for surface
parking. The monthly parking fees shall be paid at the time of, and in
addition to, the rent and other charges to be paid by Tenant pursuant to this
Lease and Landlord shall have the right, in addition to all other available
remedies, to terminate or revoke any parking permit for which the monthly
parking fee is not timely paid as required by this Section 38.00. Tenant shall
pay Landlord the cost of "reserved parking" signs for the eight executive and
five client parking spaces. Landlord represents that all of the foregoing
parking spaces will be available for Tenant's use at the commencement of
the Lease. At least one month prior to the Commencement Date, Tenant
will advise Landlord of the number and location of parking spaces Tenant
desires at the Commencement Date. Landlord will establish a validation
procedure for Tenant's clients utilizing Tenant's allocated parking spaces so
those clients will not be charged for parking.
Tenant acknowledges that, if it does not elect to pay for all of said
spaces at the commencement of the Lease and throughout the Lease Term,
Landlord shall be free to lease to third parties any spaces not actually leased
on a continuous basis by Tenant; provided, that during the first Lease Year,
Landlord shall notify Tenant if the number of parking spaces Landlord
proposes to lease and/or otherwise allocate to other users would reduce the
available number of parking spaces to less than the number of spaces
hereby allocated to Tenant, but not actually leased by Tenant. Tenant shall
have ten (10) days thereafter to notify Landlord in writing as to whether
Tenant intends to exercise a right of first refusal to lease some or all of the
remaining parking spaces allocated to Tenant by this Section 38.00 but not
then leased by Tenant. If Tenant exercises this right as to any or all of the
spaces, Tenant's obligation to pay rent for those spaces shall commence on
the first day of the following calendar month, or sooner at Tenan'ts option.
If Tenant does not affirmatively exercise this right of first refusal as to
any or all of such spaces by timely written notice to Landlord, this right of
first refusal shall expire as to those spaces and Landlord shall be free to
rent the spaces to other users.
SECTION 39.00 SIGNAGE.
Landlord agrees that, if and to the extent Landlord has the legal
or contractual right to permit the installation of an additional sign on
Landlord's sign post located at the intersection of Jefferson Avenue and
Xxxxxx Xxxxxx Street, Landlord will permit Tenant to install a sign on
that sign post advertising Tenant's offices in the Building. Provided, that
the sign shall be placed beneath Landlord's sign on the sign post and
shall be not larger than Landlord's sign thereon. Tenant shall be fully
responsible for obtaining at its expense all necessary permits, consents
and variances necessary for the installation of such sign. Tenant shall
be responsible for the full cost of installation of such sign and the cost of
electricity utilized for the illumination of the same so long as the sign
remains in place. Tenant shall be solely responsible for the cost of
maintaining its sign, which Tenant shall maintain in a first class
condition, and Tenant and Landlord shall share equally in the cost of
maintaining and repairing the sign post and/or other appurtenant
fixtures. If Tenant fails to maintain its sign in a first class condition,
Landlord shall have the right, but not the obligation, after first giving
Tenant not less than thirty (30) days written notice of its intention to do
so (except in the case of emergency, in which no notice shall be
required), to take such action as shall be necessary to maintain or repair
Tenant's sign and the cost thereof shall be immediately due and payable
by Tenant to Landlord, as additional rent, upon Landlord's delivery of the
invoice or invoices for the same. Upon the expiration or early
termination of this Lease, Tenant shall, if requested by Landlord, remove
its sign from the sign post and restore the same at Tenant's sole cost
and expense.
Tenant shall be permitted to install and maintain, at Tenant's
expense, signage at or adjacent to the entrance to the Demised
Premises similar to the signage presently maintained by CBS at its
premises in the Building, subject to Landlord's approval as to location
and appearance.
SECTION 40.00 ADA COMPLIANCE.
Landlord represents to Tenant that the Tenant improvement
work to be performed by Landlord upon the Demised Premises shall be
performed in accordance with, and the Demised Premises shall meet the
requirements of, the Americans With Disabilities Act ("ADA") and similar
federal, state or local statutes, ordinances or regulations as may be in
effect upon the commencement of the Lease (but excluding any work
performed thereon by Tenant). Landlord further agrees that it shall,
throughout the term of the Lease, comply with the lawful orders of any
governmental agency or court of competent jurisdiction pertaining to the
compliance of the Building and common areas with the ADA and/or
similar statutes pertaining to the accommodation of the handicapped.
Landlord further agrees that it will indemnify and defend Tenant against
the claims of any invitee or licensee of Tenant seeking to impose
liability against Tenant due to any failure of the Building or common
areas to comply with the ADA or other then-applicable statutes
pertaining to the accommodation of handicapped persons.
SECTION 41.00 UTILIZATION OF ROOF/PENTHOUSE
Tenant shall have the right during the Term to install one
satellite receive-only dish on the roof of the Building, provided there is
sufficient room available on the roof of the Building at the time Tenant
elects to exercise this right. The satellite dish shall be placed on the
north one-half of the Building, in a location to be determined by
Landlord. The satellite dish shall not exceed six (6) feet in diameter and
shall otherwise be subject to Landlord's prior written approval as to
engineering and design. In addition, if Tenant does place a satellite dish
on the roof of the Building pursuant to this Section 41.00, Tenant shall
have the right to use such adjoining penthouse or mechanical room
space, as may then be available, to be designated by Landlord, as may
be necessary to house related equipment, but not more than fifty (50)
square feet in total.
Tenant shall, at its sole cost and expense, comply with all
applicable laws, ordinances, rules and regulations governing the
installation and use of such satellite dish and shall obtain all necessary
licenses and permits therefor including, without limitation, any and all
licenses and/or permits required by the Federal Communications
Commission, and shall provide proof of the issuance of the same to
Landlord prior to commencement of installation of any of such
equipment. The method of attaching the satellite dish to the roof shall
be subject to Landlord's prior written approval, which Landlord may
withhold in its sole discretion and, in any event, such attachment shall
be accomplished in such a manner as to preserve the waterproof
integrity of the roof membrane and/or any built-up roofing on the
building. Such satellite dish shall be installed and utilized in such a
manner so as not to interfere with the use, for broadcast or reception
purposes, of any other antennae or satellite dish then located on the roof
of the Building. Access to the roof shall be restricted to only those
agents and employees of Tenant whose services shall be necessary for
the proper installation, maintenance, service and operation of the
satellite dish.
The rights granted to Tenant by this Section 41.00 are not
exclusive, nor do they grant any priority rights to Tenant. Landlord shall
be free to use or permit the utilization of the roof for any lawful purpose
including, without limitation, the placement of additional antennae,
satellite dishes, and other equipment and facilities, so long as such
additional equipment and facilities placed on the roof after the
installation of Tenant's satellite dish will not interfere with the normal
operation of Tenant's satellite dish.
The insurance required of Tenant pursuant to Section 10.00
above shall also affirmatively cover Tenant's satellite dish and related
equipment as well as the installation, maintenance and removal thereof.
Tenant shall indemnify, defend and hold Landlord harmless with respect
to all damages, loss, costs and expenses, including reasonable attorneys
fees, with respect to any personal injury or property damage (including
damage to the Building) arising out of or relating to the installation,
maintenance, repair and/or removal of the satellite dish and/or other
equipment from the roof and the penthouse/mechanical room. Upon
expiration or earlier termination of this Lease, Tenant shall remove the
satellite dish from the roof, shall repair all damage to the roof and
restore the same to Landlord's satisfaction, all at Tenant's sole cost and
expense.
If Tenant elects to place a satellite dish on the roof of the
Building pursuant to this Section 41.00, Tenant shall pay additional rent
for the use of the roof for such satellite dish, together with any necessary
penthouse or mechanical room space, in an amount to be established by
Landlord in the exercise of its reasonable discretion, but not more than
Two Thousand Five Hundred Dollars ($2,500.00) per year. Such
additional rent shall be payable in equal monthly installments, in
advance, at the same time as the monthly rental payments due under
this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease as of the day and year first above written.
WITNESSES: LANDLORD:
THE XXXXX COMPANIES, INC.,
a Delaware corporation
/s/Xxxxx X. Xxxxx By:/s/ V.M.Alzatemarco
_____ Its:Assistant Treasurer
TENANT:
FIRST OF MICHIGAN CORPORATION, a
Delaware corporation
/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx Its:President and Chief Executive Officer
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL 9
Land in the City of Detroit, County of Xxxxx, State of Michigan:
A parcel of land of part of the "Xxxx X. & Xxxxxx X. Xxxxxx Plat of
Subdivision of Xxxxxxx Xxxxx 000, Xxx. Xxxxxx Xxxxxx" recorded in
Liber 2 of Plats, Page 1, Xxxxx County Records, more particularly
described as follows: Commencing at the intersection of the southerly
line of vacated Guoin Street (50 feet wide) and the easterly line of
Xxxxxx Xxxxxx Avenue (presently 69.65 feet wide);
Thence South 26 degrees 07 minutes 00 seconds East along the
easterly line of Xxxxxx Xxxxxx Avenue, a distance of 203.47 feet to the
Point of Beginning;
Thence continuing South 26 degrees 07 minutes 00 seconds East along
the easterly line of Xxxxxx Xxxxxx Avenue, a distance of 225.87 feet to
the northwesterly corner of Easement No. 7;
Thence North 60 degrees 22 minutes 15 seconds East, a distance of
227.97 feet along the southerly line of Building No. 64 and the northerly
line of Easement No. 7 to a point on the westerly line of Easement No.
5;
Thence North 26 degrees 08 minutes 42 seconds West along the
westerly line of Easement No. 5, a distance of 226.00 feet to the
southeasterly corner of Parcel No. 10;
Thence South 60 degrees 20 minutes 11 seconds West along the
southerly line of Parcel No. 10, a distance of 227.87 feet to the Point of
Beginning.
EXHIBIT "B"
DESCRIPTION OF LANDLORD AND TENANT
IMPROVEMENTS AND SPECIFICATIONS
I. Interior improvements supplied by Landlord ("Landlord's Work")
are as follows:
All those items set forth on the first page of the February
12,1997, letter from Broadcast Design & Construction, Inc., to Xxxxx
Xxxx of The Xxxxx Companies, Inc., (the "BDC Budget Letter") except
those items listed as "Not included" thereon, a copy of which letter is
attached hereto as an exhibit.
II. All extra work Identified on the second page of the BDC
Budget Letter under the caption "Additional Items", and
any other work required by Tenant in addition to
Landlord's Work as hereinabove set forth will be
furnished and installed by Landlord at Tenant's expense
(including any architectural, engineering, general
conditions or supervision charges associated therewith)
and shall be of material, manufacture, design, capacity
and finish established or approved by Landlord.
III. Tenant agrees that Tenant will reimburse Landlord for
the work identified in paragraph II above and all extra
work requested by Tenant, including architectural and
engineering charges, within ten days after being billed
therefor by Landlord, based on the progress of the
work. Landlord shall xxxx Tenant for such work
periodically as the work progresses, but not more often
than twice a month. In any case, Landlord will be fully
reimbursed by Tenant for such improvements on or
before either (1) the Commencement Date of this lease,
or (2) the date the Tenant occupies the space,
whichever occurs first, unless Tenant terminates this
Lease pursuant to Section 2.2 of this Lease due to
Landlord's failure to timely deliver the Demised
Premises to Tenant. In the latter event, Tenant shall be
liable for the costs of all work invoiced to Tenant at
least ten (10) days prior to such termination, but only to
the extent that such work has been completed.
IV. The work shall be performed in accordance with the
plans prepared by Ford and Xxxx
Associates dated February 17, 1997, Drawing numbers
SP-ISD and SP-IB, Project number 83600, which plans
have been approved and initialed on behalf of Landlord
and Tenant, and the construction drawings to be
prepared pursuant thereto which will be hereafter
approved and initialed on behalf of both Landlord and
Tenant.
V. It is agreed that notwithstanding the date provided in the
Lease for the commencement thereof, Tenant's
obligations for the payment of rent shall not commence
until Landlord shall have substantially completed all
work to be performed by Landlord as hereinbefore set
forth provided; however, that if Landlord shall be
delayed in substantially completing said work as a result
of:
A. Tenant's failure to furnish layouts and
approvals in accordance with paragraph IV
hereof; or
B. Tenant's request for materials finishes or
installations other than Landlord's standard; or
C. Tenant's changes in said plans; or
D. The performance by a person, firm or
corporation employed by Tenant or the
completion of said work by said person, firm or
corporation; or
E. If Tenant shall otherwise delay the substantial
completion of Landlord's work;
then the payment of rent thereunder shall be
accelerated by the number of days of such delay.
VI. If there are any changes requested by Tenant after
completion of the architectural plans and engineering
drawings, Tenant will be responsible for all costs and
related expenses resulting from such changes.
WITNESSES: LANDLORD:
THE XXXXX COMPANIES, INC.,
a Delaware corporation
_____ By: ______________
_____ Its:______________
TENANT:
FIRST OF MICHIGAN CORPORATION,
a Delaware corporation
By: _______
Its:_______
EXHIBIT "C"
000 XXXXX XXXXX - RULES
The following Rules shall apply, where applicable, to all leased
premises, the Building, the land situated beneath the Building, and the
appurtenances thereof:
1. No part or the whole of the sidewalks, parking
structures, plaza area, atrium areas, entrances, passages, courts,
elevators, vestibules, stairways, corridors or halls of the Building or the
Real Property shall be obstructed or encumbered by any Tenant or used
for any purposes other than ingress and egress to and from the space
demised to such Tenant.
2. No awnings or other projection shall be attached to the
outside or inside atrium walls or windows of the Building. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Demised Premises other
than those furnished by Landlord. All electric ceiling fixtures hung in
offices or spaces along the perimeter of the Building must be florescent,
of a quality type, design and bulb color approved by Landlord. Neither
the interior nor exterior of any windows shall be coated or otherwise
sunscreened without the express written consent of Landlord.
3. No sign, advertisement, object, lettering, or notice shall
be exhibited, painted or affixed by any Tenant on any part of the
Demised Premises or the Building without the prior written consent of
the Landlord. In the event of the violation of the foregoing by any
Tenant, Landlord may remove same without any liability, and may
charge the expense incurred in such removal to the Tenant violating this
Rule. Interior signs on doors and directory tablets shall be inscribed,
painted or affixed for each Tenant by Landlord at the expense of such
Tenant, and shall be of a size, color and style acceptable to the
Landlord. The directory tablet will be provided exclusively for the
display of the name and location of Tenants only and Landlord reserves
the right to exclude any other names therefrom. Nothing may be placed
on the exterior of corridor walls or corridor doors other than Landlord's
standard lettering without Landlord's approval.
4. The sashes, sash doors, skylights, windows, and doors
that reflect or admit light and air into halls, passageways or other public
places in the Building shall not be obstructed by any Tenant, nor shall
any bottles, parcels or other articles including plants be placed on the
windowsills.
5. The water and wash closets and other plumbing fixtures
shall not be used for any purpose other than those for which they are
constructed, and no sweepings, rubbish, rags or other substances
(including, without limitation, coffee grounds) shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the
Tenant who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same.
6. No Tenant shall xxxx, paint, drill into, or in any way
deface any part of the Demised Premises or the Building. No boring,
cutting or stringing of wires, or laying of linoleum or other similar floor
coverings shall be permitted, except with the prior written consent of the
Landlord and as the Landlord may direct.
7. No bicycles, vehicles, birds or animals of any kind,
except leader dogs for the blind, shall be brought into or kept in or about
the Demised Premises, and no cooking shall be done or permitted by
any Tenant on the Demised Premises, except that in the preparation of
coffee, tea, hot chocolate and similar items for Tenants and their
employees shall be permitted provided power shall not exceed that
amount which can be provided by a 30 amp circuit. No Tenant shall
cause or permit any unusual or objectionable odors to be produced or
permeate the Demised Premises, or the Building.
8. The Demised Premises shall not be used for
manufacturing or for storage of merchandise except as such storage
may be incidental to the use of the Demised Premises for general office
purposes. Tenant shall not occupy or permit any portion of his Demised
Premises to be occupied as an office for a public stenographer or typist,
or for the manufacture or sale of liquor, narcotics or tobacco in any form,
or as a medical office, or as a xxxxxx or manicure shop, or as an
employment bureau or for the auction of any goods, or for a distress, or
bankruptcy sale. No Tenant shall engage or pay any employees on the
Demised Premises except those actually working for such Tenant on the
Demised Premises, nor advertise for laborers giving an address at the
Demised Premises. The Demised Premises shall not be used for
lodging or sleeping or for any immoral or illegal purposes.
9. No Tenant shall make, or permit to be made, any
unseemly or disturbing noises or disturb or interfere with occupants of
the Building or neighboring buildings or premises or those having
business with them, whether by the use of any musical instrument, radio,
phonograph, unusual noise, or any other way. No Tenant shall throw
anything out of doors, windows or skylight or down the passageways.
10. No Tenant nor any Tenant's servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the
Demised Premises any inflammable, combustible or explosive fluid,
chemical or substances.
11. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any Tenant, nor shall any changes
be made in existing locks or the mechanism thereof. Each Tenant must,
upon the termination of its tenancy, restore to the Landlord all keys of
stores, offices, and toilet rooms, either furnished to, or otherwise
procured by such Tenant and in the event of the loss of any keys so
furnished, such Tenant shall pay to the Landlord the cost of replacing
the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such change.
12. All removals, the carrying in or out of any safes, freight,
furniture, or bulky matter of any description or the use of the Building's
elevators therefor must take place between such hours as the Landlord
may determine, from time to time. The moving of sales, other fixtures,
equipment or bulky matter of any kind must be made upon previous
notice to the superintendent of the Building and under his supervision,
and the person employed by any Tenant for such work must be
acceptable to the Landlord. The Landlord reserves the right to inspect
all safes, freight, or other bulky articles to be brought into the Building
and to exclude from the Building all safes, freight or bulky articles which
violate any of these Rules. The Landlord reserves the right to prescribe
the weight and position of all safes, which must be placed upon supports
approved by landlord to distribute weight. If additional expenses are
incurred by Landlord by reason of moving of Tenant's safes, other
fixtures, equipment or bulky matter of any kind, such expenses shall be
borne by Tenant. No Tenant shall place, or permit to be placed, on any
part of the floor or floors of the space demised to such Tenant a load
exceeding the floor load per square foot which such floor was designed
to carry and which is allowed by law.
13. No Tenant shall purchase spring water, ice, towel,
janitorial or maintenance or other like services, from any company or
persons not approved by the Landlord.
14. Landlord shall have the right to prohibit any advertising
by any Tenant which, in Landlord's opinion, tends to impair the
reputation of the Building or its desirability as an office building and upon
written notice from Landlord any Tenant shall refrain from or discontinue
such advertising.
15. Landlord reserves the right to control and operate the
public portions of the Building and the public facilities, as well as
facilities furnished for the common use of the Tenants, in such manner
as it deems best for the benefit of the Tenants, generally, including,
without limitation, the right to exclude from the Building, between the
hours of 6:00 P.M. and 8:00 A.M on business days and all hours on
Saturdays except 8:00 A.M. to 1:00 P.M., Sundays, and holidays, all
persons who do not present a pass to the Building signed by Landlord or
other suitable identification satisfactory to Landlord. Landlord will
furnish passes to persons for whom any Tenant shall request such
passes. Each Tenant shall be responsible for all persons for whom it
requests passes or clearances and shall be liable to the Landlord for all
acts of such persons. Landlord shall in no case be liable for damages
for any error with regard to the admission to or exclusion from the
Building of any person. In case of an invasion, mob, riot, public
excitement or other circumstances rendering such action advisable in
Landlord's opinion, Landlord reserves the right to prevent access to the
Building during the continuance of the same by closing the doors or
otherwise, for the safety of the Tenants and the protection of the
Building and the property in the Building.
16. Any persons employed by any Tenant to do janitorial
work, shall, while in the Building and outside of the Demised Premises,
be subject to and under the control and direction of the superintendent of
the Building (but not as an agent or servant of said superintendent or of
the Landlord), and shall be allowed in the Building between 7:00 P.M.
and 7:00 .AM. on Mondays through Fridays and at all hours on Saturday,
Sundays and legal holidays.
17. All doors opening into public corridors shall be kept
closed, except when in use for ingress and egress.
18. The requirements of Tenants will be attended to only
upon application at the office of the Landlord. Building employees shall
not be required to perform, and shall not be requested by any Tenant to
perform, any work outside of their regular duties, unless under specific
instructions from the office of Landlord.
19. Canvassing, soliciting and peddling in the Building are
prohibited and each Tenant shall cooperate to prevent the same.
20. Landlord reserves the right to specify where in the
Demised Premises Tenants' business machines and mechanical
equipment shall be placed or maintained in order, in Landlord's
judgment, to absorb and prevent vibration, noise, and annoyance to
other Tenants of the Building.
21. No air-conditioning unit or other similar apparatus shall
be installed or used by any Tenant without the written consent of
Landlord.
22. There shall not be used in the Building, either by any
Tenant or by its agents or contractors, in the delivery or receipt of
merchandise, freight, or other matter, any hand trucks or other means or
conveyance except those equipped with rubber tires, rubber side guards,
and other safeguards as Landlord may require.
23. Landlord shall have the right, exercisable without notice
or without liability to any Tenant, to change the name and address of the
Building.
24. No vending machine or machines of any description
shall be installed, maintained or operated upon the Demised Premises
without the prior written consent of Landlord.
25. The scheduling of moves of Tenant's furniture and
equipment into or out of the Building is subject to the reasonable
discretion of Landlord.
26. All electric wiring and electrical outlets and connection
of every kind shall be introduced and connected only by Landlord, and
no boring or cutting for wires shall be allowed except with the prior
written consent of the Landlord. The location of telephones, call boxes
and other office equipment affixed to the Demised Premises shall be
subject to the prior written approval of Landlord.
27. Landlord reserves the right to exclude or expel from the
Building and the Demised Premises any person who, in the judgment of
Landlord is intoxicated or under the influence of liquor or drugs, or who
shall in any manner do any act in violation of these Rules.
28. Tenant shall not place any radio or television antenna
on the roof or on any part of the inside or the outside of the Building
other than the inside of the Demised Premises without the prior written
consent of the Landlord. Tenant shall not operate or permit to be
operated any musical or sound procuring instrument or device inside or
outside the Demised Premises which may be heard outside the Demised
Premises, or operate any electrical device from the Demised Premises
which may emanate electrical waves which may interfere with or impair
radio or television broadcasting or reception from or in the Building or
elsewhere, without the Landlord's prior written consent.
29. Tenant shall comply with all rules applicable to the
parking garage servicing the Building as determined by the parking
garage operator from time to time.
30. Each Tenant shall, at its expense, provide artificial light
in the Demised Premises for Landlord's agents, contractors, and
employees while performing janitorial or other cleaning services and
making repairs or alterations in Demised Premises.
31. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the halls,
corridors, vestibules, or other public parts of the Building.
32. Landlord reserves the right, after reasonable notice
thereof, to rescind, notify and add to these Rules as may be
promulgated by the Landlord in writing from time to time.
EXHIBIT "D"
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT ("Agreement") is made by and among
THE XXXXX COMPANIES, INC., a Delaware corporation ("Sublessor"),
FIRST OF MICHIGAN CORPORATION, a Delaware corporation
("Sublessee"), and X. XXXXXXXX XXXXX, XXXXXXX X. XXXXX and
XXXXX X. XXXXXX, SUCCESSOR TRUSTEES FOR THE
IRREVOCABLE TRUST f/b/o THE XXXXX FAMILY FIFTH
GENERATION u/a DATED AUGUST 10, 1983, a Michigan Trust
("Lender"), Lender, Sublessor and Sublessee are sometimes hereinafter
referred to herein individually as a "Party" and collectively as the
"Parties".
RECITALS
A. Under a certain sublease dated , 1997
(the "Sublease"), Sublessor did sublease, sublet and demise certain
space (hereinafter called the "Subleased Premises") in the property
legally described in Exhibit A hereto ("Property"), as described in the
Sublease, to Sublessee for the period of time and upon the covenants,
terms, and conditions stated in the Sublease.
B. Under a certain Amended and Restated Master Lease
("Master Lease") dated as of November 1, 1995, Sublessor has leased
the Property from MG-LXV Associates Limited Partnership, doing
business as Waterview L.P., a Michigan limited partnership ("Master
Lessor").
C. Lender is (i) the assignee of a certain Loan Agreement
dated as of April 1, 1994 ("Loan Agreement") between Westpac Banking
Corporation, and Master Lessor, together with the related Amended and
Restated Mortgage, Security Agreement, Assignment of Rents and
Subleases and Fixture Filing (the "Mortgage") encumbering the
Subleased Premises and certain other property, and (ii) the lessor under
a certain ground lease dated May 3, 1985, which was amended and
restated as of April 1, 1994 (the "Ground Lease") pursuant to which
Master Lessor, as lessee thereunder, leases the land on which the
Property is located .
D. The Parties hereto desire to confirm that the Sublease is
subordinate to (i) the lien of the Mortgage, it being a condition of the
loan agreement and the mortgage that the lien and charge of the
Mortgage be unconditionally and at all times prior and superior to the
leasehold interests and estate created by the Sublease, and (ii) the
Master Lease.
E. Sublessee has requested that Lender agree not to disturb
Sublessee's possessory rights in the Subleased Premises if Lender
forecloses the Mortgage or acquires possession of the Property as a
result of the termination of the Ground Lease, provided that Sublessee
shall not be in default under the Sublease and that Sublessee shall
attorn to Lender or the purchaser at any foreclosure sale of the Property.
AGREEMENT
NOW, THEREFORE, for and in consideration of the covenants,
terms conditions, agreements, and demises herein contained, and for
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree, covenant,
represent and warrant as follows:
1. Notwithstanding anything contained in the Sublease to the
contrary, the Parties do hereby covenant and agree that the Sublease
and any modifications and amendments subsequently approved by
Lender and all rights, options, liens or charges created thereby are, and
shall continue to be, subject and subordinate in all respects to the
Mortgage and the lien created thereby, to any future advances secured
thereby, to any considerations, extensions, modifications or renewals
thereof, and to any other mortgage on the Property which may hereafter
be held by Lender, as well as to the Master Lease.
2. So long as Sublessee is not in default under any of the
covenants, terms and conditions contained in the Sublease or in any
modification or amendment subsequently approved by Lender on the
part of Sublessee to be observed and performed, Lender , in its
capacities both as lender under the Mortgage and as lessor under the
Ground Lease, hereby covenants and agrees that if Lender obtains title
to the Property, either by foreclosure or by deed in lieu of foreclosure, or
upon termination of the Ground Lease, and thereafter obtains right of
possession of the Property, the Sublease, including without limitation the
Options to Renew, Right of First Opportunity to Lease and Options to
Terminate set forth therein, and any modifications or amendments
hereafter approved by Lender will continue in full force and effect, and
Lender shall recognize the Sublease, and any modifications or
amendments subsequently approved by Lender and the Sublessee's
rights thereunder, and agrees not to disturb Sublessee's possession
thereunder so long as Sublessee is not thereafter in default thereunder,
and will hereby establish direct privity of estate and contract between
Lender and Sublessee with the same force and effect and with the same
relative priority in time and right as though the Sublease and any
modifications or amendments subsequently approved by Lender were
directly made from Lender in favor of Sublessee.
3. If there occurs any default or event of default on the part of
Sublessor under the Sublease, Sublessee shall, prior to taking any
action or exercising any right with respect to such default, send Lender a
copy of any written notice of such default or event of default sent or
given to Sublessor, with a description of such default or event of default.
4. (a) In the case of the occurrence of a default in the
performance of Sublessor's obligations under the Sublease (any of
which shall be referred to as a "Sublessor Default"), Sublessee hereby
covenants and agrees to give Lender an additional period of thirty (30)
days after Lender's receipt of the notice referred to in Section 3 above
during which to cure a Sublessor Default; provided, however, that if such
Sublessor Default cannot reasonably be cured within such thirty (30) day
period, then Lender shall have a reasonable period after such thirty (30)
day period during which to cure such default, or, if such default can only
be cured by persons in actual possession of the Property, then Lender
shall have a reasonable period during and after any litigation action,
including any foreclosure action, bankruptcy action, possessory action,
or a combination of such actions concerning the Property, during which
to cure such default; further provided that if the nature of the default
disrupts the quiet enjoyment of the Subleased Premises by Sublessee or
the conduct of Sublessee's business, Lender will cure as soon as
reasonably as practicable. Sublessee further agrees not to exercise any
right it may have to terminate the Sublease during the thirty (30) day
period after notice of default, or during the period of such litigation, or
during any period that Lender is proceeding with due diligence to cure
such default which is susceptible of cure by Lender, as the case may be.
(b) Sublessee further agrees that Lender shall have
the right to enter upon the Subleased Premises at any time upon
reasonable notice for the purpose of curing any Sublessor Defaults
(Lender having no obligation to do so) and Sublessee hereby agrees to
accept Lender's performance of and compliance with the Sublessor's
agreements and obligations under the Sublease with the same force and
effect as though such cure were performed or effected by the Sublessor
itself. Furthermore, if during the period of times allowed under this
Agreement for Lender to cure such Sublessor Default, the Sublessor
itself cures Sublessor Default, then Sublessee shall accept such cure
and shall also notify Lender of the Sublessor's effecting such cure.
5. If the interests of the Sublessor under the Sublease shall be
transferred to Lender by reason of foreclosure, deed in lieu of
foreclosure, or otherwise, Sublessee hereby covenants and agrees to
make full and complete attornment to Lender as substitute Sublessor
upon the same terms, covenants and conditions as provided in the
Sublease, except for provisions which are impossible for Lender to
perform, so as to establish direct privity of estate and contract between
Lender and Sublessee with the same force and effect and relative
priority in time and right as though the Sublease and all modifications
and amendments thereof hereafter consented to by Lender, together
with all guarantees of Sublessee's obligations under the Sublease, were
originally made between Lender and Sublessee. If Lender notifies
Sublessee of a default under the Mortgage and demands that Sublessee
pay its rent and all other sums due under the Sublease to Lender,
Sublessee will honor such demand and thereafter make all payments
directly to Lender or as otherwise directed in such notice. Sublessor
hereby directs Sublessee to comply with the foregoing provision, and
agrees to release and hold Sublessee harmless from any claims of
Sublessor, its successors and assign relating to such compliance.
Sublessee waives all joinder and/or service of any and all foreclosure
actions by Lender under the Mortgage upon the Property, and of any
actions at law or otherwise by Lender to gain possession of the Property.
It shall not be necessary, except as required by law or court rules or
procedures, for Lender to name Sublessee as a party to enforce
Lender's right's under the Mortgage, or any other instrument securing the
Loan, or to prosecute any action at law or otherwise to gain possession
of the Property. Unless required by law or court rules or procedures,
Lender agrees not to name Sublessee in any such proceeding. If the
interests of Sublessor under the Sublease shall be transferred by reason
of foreclosure of the Mortgage, deed in lieu of foreclosure, or otherwise,
to any party other than Lender (hereinafter referred to as a
"Transferee"), then Sublessee hereby covenants and agrees to make full
and complete attornment to such Transferee as substitute Sublessor,
upon the same terms and conditions as provided for herein in the case
of attornment to Lender, provided that such Transferee agrees to be
bound by the terms of this agreement, and Transferee shall thereupon
have all rights and privileges of Lender under this Agreement. Upon the
written request of Lender given in connection with a foreclosure or deed
in lieu of foreclosure, Sublessee agrees to execute a lease of the
Subleased Premises upon the same terms and conditions as the
Sublease between Sublessor and Sublessee, which lease shall cover
any unexpired term of the Sublease existing prior to such foreclosure or
conveyance in lieu of foreclosure.
6. The provisions of this Agreement shall constitute covenants
running with the Property and shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors,
administrators, beneficiaries, successors and assigns, including, without
limitation, any person who shall obtain, directly or by assignment or
conveyance (a) any interest in the Mortgage or (b) any interest in the
Subleased Premises, whether through foreclosure or otherwise.
Furthermore, the provisions of this Agreement shall be binding upon any
guarantor of Sublessee's obligations under the Sublease.
7. Sublessee hereby covenants and agrees that Lender shall
not be:
(a) Liable personally for any act or omission of Sublessor;
(b) Subject to personal liability for any claims, offsets or
defenses which the Sublessee might have against Sublessor or any prior
lessor;
(c) Required or obligated to credit Sublessee with any rent
or additional rent for any rental period beyond the then current month's
rental period which Sublessee might have paid Sublessor unless and
until such rent shall have been delivered by Sublessor to and actually
received by Lender; provided that prior to making payment of such rent
or additional rent, Sublessee shall have received written notice from
Lender to pay such rent to Lender,
(d) Bound by any modifications or amendments of the
Sublease made without Lender's written consent; or
(e) Bound to or be liable to refund all or any part of any
security deposit by Sublessee with Sublessor for any purpose unless and
until all such security deposits shall have been delivered by Sublessor to
and actually received by Lender.
If Lender receives any rent or security deposit, Lender's obligations with
respect thereto shall be limited to the amount of such rent or security
deposit actually received by Lender, and Lender shall be entitled to all
rights, privileges and benefits of Sublessor set forth in the Sublease with
respect thereto.
8. Sublessee shall not, without the express written consent of
Lender:
(a) Cancel, terminate or surrender the Sublease, except as
provided therein or in any modification or amendment specified herein
or hereafter consented to by Lender;
(b) After the date hereof, enter into any agreement with
Sublessor or its successors or assigns, which grants any concession with
respect to the Sublease or which compromises, discounts or otherwise
reduces the rent called for thereunder; or
(c) After the date hereof, prepay rent more than one (1)
month in advance.
9. Sublessor and Sublessee hereby agree that neither this
Agreement, nor any assignment of the Sublease for collateral purposes,
nor anything to the contrary in the Sublease or in any modifications or
amendments thereto shall, prior to Lender's acquisition of Sublessor's
interest in and possession of the Subleased Premises, operate or give
rise to or create any responsibility or liability upon Lender for the control,
care, management or repair of the Subleased Premises or for any waste
committed on the Subleased Premises by any party whatsoever or for
any dangerous or defective condition of the Subleased Premises; or
impose responsibility for the carrying out by Lender of any of the
covenants, terms and conditions of the Sublease or of any modification
or amendment whether or not hereafter consented to by Lender, or for
any negligence in the management, upkeep, repair or control of the
Subleased Premises resulting in loss, injury or death to any lessee,
licensee, invitee, guest, employee, agent, or stranger. Notwithstanding
anything to the contrary in the Sublease, Lender, its successors and
assigns (and any Transferee, as appropriate), shall be responsible for
the performance of only those covenants and obligations of the
Sublease accruing after Lender's, its successors' and assigns' (or
Transferee's as appropriate), acquisition of Sublessor's interest in and
possession of the Subleased Premises.
10. All notices, requests, demands or other communications
under this Agreement shall be in writing and shall be deemed to have
been given or made upon delivery, if hand delivered, or three (3)
business days after being deposited in the United States certified or
registered mail, postage prepaid, return receipt requested, or one (1)
business day after delivery to an overnight air courier, in either case
addressed as follows:
If to Lender:
Xxxxx X. Xxxxxx, Trustee
000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
If to Sublessee:
First of Michigan Corporation
000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
If to Sublessor:
The Xxxxx Companies, Inc.
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Assistant
Treasurer
11. This Agreement contains the entire agreement among the
Parties hereto with respect to the subject matter hereto. No variations,
modifications or changes herein or hereof shall be binding upon any of
the Parties unless set forth in a document duly executed by or on behalf
of such Party.
12. Whenever used herein, the singular number shall include
the plural, the plural the singular, and the use of any gender shall include
all genders. The words, "Sublessee", "Sublessor", "Lender", and
"Lenders" shall include their respective heirs, executors, administrators,
beneficiaries, successors and assigns.
13. This Agreement supersedes any inconsistent provisions of
the Sublease. Nothing contained in this Agreement shall be construed
to derogate from or in any way impair or affect the lien, charge or
provisions of the Mortgage.
14. As used herein, the term "Mortgage" shall include
mortgages, trust deeds, deeds of trust and any similar security
documents now or hereafter used in the state in which the Property is
located.
15. Sublessee agrees that this Agreement satisfies any
condition or requirement in the Sublease relating to the granting of a
non-disturbance agreement.
16. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original and all of which together shall
constitute one instrument.
17. This Agreement and all rights, obligations and liabilities
arising hereunder shall be governed by the internal laws and decisions
of the State of Michigan (without giving effect to Michigan choice of law
principles).
18. Notwithstanding anything contained in this Agreement or in
the Master Lease to the contrary, any liability for damage or breach or
nonperformance by Lender or any Transferee shall be collectible only
out of its interest in the Property and no personal liability is assumed by,
nor at any time may be asserted against Lender or any Transferee or
their respective employees, servants, agents, affiliates, representatives,
successors, or assigns, all such liability, if any, being expressly waived
and released by Sublessee for itself and any and all persons and entities
claiming by, through or under Sublessee.
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be executed as of the __________ day of
_______________________________, 1997.
SUBLESSOR:
THE XXXXX COMPANIES, INC., a Delaware corporation
By:____________________________________
Its:____________________________________
SUBLESSEE:
FIRST OF MICHIGAN CORPORATION,
a Delaware corporation
By: ___________________________________
Its:____________________________________
LENDER:
______________________________________
X. Xxxxxxxx Xxxxx, Successor Trustee for
the Irrevocable Trust f/b/a The Xxxxx Family
Fifth Generation u/a Dated August 10, 1983,
a Michigan Trust
______________________________________
Xxxxxxx X. Xxxxx, Successor Trustee for
the Irrevocable Trust f/b/a The Xxxxx Family
Fifth Generation u/a Dated August 10, 1983,
a Michigan Trust
______________________________________
Xxxxx X. Xxxxxx, Successor Trustee for
the Irrevocable Trust f/b/a The Xxxxx Family
Fifth Generation u/a Dated August 10, 1983,
a Michigan Trust
STATE OF MICHIGAN )
:ss
COUNTY OF )
Before me, the undersigned authority, on this day personally
appeared Xxxxxxx X. Xxxxxxxxxx, Assistant Treasurer of The Xxxxx
Companies, Inc., a Delaware corporation, known to me to be the person
whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity stated, and as the act
and deed of said corporation.
Given under my hand and seal of office this ____ day of
________________, 1997
________________________________
Notary Public
__________________________ County,
My commission
expires:
STATE OF MICHIGAN )
:ss
COUNTY OF )
Before me, the undersigned authority, on this day personally
appeared , the of
First of Michigan Corporation, a Delaware corporation, known to me to
be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity stated, and as the act
and deed of said corporation.
Given under my hand and seal of office this _______ day of
_______________________, 1997.
________________________________
Notary Public
__________________________ County,
My commission
expires:
STATE OF )
:ss
COUNTY OF )
Before me, the undersigned authority, on this day personally
appeared X. Xxxxxxxx Xxxxx, Successor Trustee for the Irrevocable Trust
f/b/a The Xxxxx Family Fifth Generation u/a Dated August 10, 1983, a
Michigan Trust, known to me to be the person whose name is subscribed
to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the
capacity stated.
Given under my hand and seal of office this _____ day of
_____________________, 1997.
________________________________
Notary Public
__________________________ County,
My commission
expires:
STATE OF )
:ss
COUNTY OF )
Before me, the undersigned authority, on this day personally
appeared Xxxxxxx X. Xxxxx, Successor Trustee for the Irrevocable Trust
f/b/a The Xxxxx Family Fifth Generation u/a Dated August 10, 1983, a
Michigan Trust, known to me to be the person whose name is subscribed
to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the
capacity stated.
Given under my hand and seal of office this _____ day of
_____________________, 1997.
________________________________
Notary Public
__________________________ County,
My commission
expires:
STATE OF )
:ss
COUNTY OF )
Before me, the undersigned authority, on this day personally
appeared Xxxxx X. Xxxxxx, Successor Trustee for the Irrevocable Trust
f/b/a The Xxxxx Family Fifth Generation u/a Dated August 10, 1983, a
Michigan Trust, known to me to be the person whose name is subscribed
to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the
capacity stated.
Given under my hand and seal of office this _____ day of
_____________________, 1997.
________________________________
Notary Public
__________________________ County,
My commission expires: \
