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EXHIBIT 10.5
00000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx
OFFICE BUILDING LEASE
THIS LEASE is made this _____ day of ________________, 1998, between
RONTAL INVESTMENT COMPANY, a Michigan co-partnership ("Landlord"), whose address
is 00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000-0000 and MICHIGAN HERITAGE BANK,
a Michigan financial corporation ("Tenant"), whose address is 00000 Xxxxxxxx
Xxxx, Xxxx, Xxxxxxxx 00000.
1. BASIC LEASE TERMS AND PROVISIONS:
The following is intended to summarize the principal terms of
this Lease, but is not intended to be all inclusive. In the event that anything
contained in this Section 1 conflicts with other provisions hereinafter
contained in this Lease, the latter shall be deemed to control in the absence of
express statements to the contrary.
A. Building: 00000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
B. Leased Premises: Suite No. 100 located on the first
(1st) floor of the Building and containing
approximately 1,200 rentable square feet. The term
"rentable square feet" is defined in Paragraph 34 of
the Lease.
C. Lease Term: Term of fifteen (15) years, commencing
upon July 1, 1999 ("Commencement Date"), and
terminating upon June 30, 2014 ("Termination Date").
D. Base Rent:
Monthly Annually
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Years 1 - 5 $2,200.00 $26,400.00
Years 6 - 10 $2,500.00 $30,000.00
Years 11 15 See Paragraph 3(c)
E. Base Operating Expenses: $6.75 per rentable square
foot in the Building.
F. Use: General Office Purposes.
G. Maximum Occupancy: N/A.
H. Security Deposit: Intentionally Omitted.
I. Broker: N/A.
2. PREMISES:
Landlord hereby leases to Tenant those certain premises
designated on the Plans attached hereto as Exhibit "A" (the "Premises"), as more
particularly defined in subparagraph B of
Landlord:
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Tenant:
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Paragraph 1 hereof, together with a non-exclusive right, subject to the
provisions hereof, to use all appurtenances thereunto, including but not limited
to, uncovered parking areas and any other areas and facilities designated by
Landlord for use in common by tenants of the Building. The Building, real
property on which the same is situated, parking areas, other areas and
appurtenances are hereinafter collectively sometimes called the "Building
Complex". This Lease is subject to the terms, covenants and conditions set forth
herein and Tenant and Landlord each covenant as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance. Subject to the provisions of
Paragraph 23 below, Tenant hereby acknowledges that portions of the covered
parking areas may be designated by Landlord for use by tenants of the Building
on an exclusive basis and that certain portions of the uncovered parking areas
may be designated by Landlord for the exclusive use by tenants or other
occupants of the Building.
3. TERM:
(a) The term of this Lease shall be for the period of
years referred to in subparagraph C of Paragraph 1
hereof (the "Primary Lease Term") commencing at 12:01
a.m. on the Commencement Date, and terminating at
12:00 midnight on Termination Date, unless sooner
terminated pursuant to this Lease.
(b) The Commencement Date shall be the first day of the
month after the date on which Landlord has delivered
possession of the Premises to Tenant Ready for
Occupancy, as said term is defined in Paragraph 20(a)
hereof; provided, however, the Premises shall not be
deemed Ready for Occupancy by Tenant unless Landlord
has provided Tenant with written notice at least
thirty (30) days prior to the date on which Landlord
anticipates the Premises shall be delivered. Except
as provided below, in the event Landlord fails to
deliver the Premises on the Commencement Date because
the Premises are not then ready for occupancy, or for
any other cause beyond Landlord's control, Landlord
shall not be liable to Tenant for any damages as a
result of Landlord's delay in delivering the Premises
and the Commencement Date shall be postponed until
such date as the Premises are ready for Tenant's
occupancy and the Termination Date shall be postponed
for a like number of days. In the event of any such
postponement, the parties agree to enter into a
Supplement to Lease at the time that the Commencement
Date is determined. Such Supplement to Lease shall
stipulate the Commencement Date and Termination Date
of this Lease.
(c) It is understood and agreed by Landlord and Tenant
that the rent to be paid by Tenant during years
eleven (11) through fifteen (15) of the Primary Lease
Term shall be the "prevailing market rate" for
similar space in the Building and in substantially
equivalent buildings in the general neighborhood of
the Building. The parties agree to negotiate, in good
faith, such rental based on leases executed during
the one (1) year period prior to the commencement of
the eleventh (11th) lease year. For the purpose
hereof, substantially equivalent buildings shall be
deemed to be the following buildings:
[Weight Watchers], Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx
Xxxxx, Xxxxxxxx
[Xxxxx Xxxxxx], Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx Xxxxx,
Xxxxxxxx
[Mind], Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx
In no event, however, shall the rental to be paid by
Tenant during said years be less than Twenty-Five
Dollars ($25.00) per rentable square foot, nor more
than Twenty-Seven Dollars ($27.00) per rentable
square foot.
Tenant:
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(d) In the event that any portion of the first (1st)
floor of the Building contiguous to the Premises
shall become available for occupancy after the
initial occupancy thereof by a third party, then
Landlord shall notify Tenant as to the availability
of same and Tenant shall have ten (10) days after
receipt of such notice to advise Landlord as to its
interest in entering into a lease agreement covering
such space. In the event Tenant elects to lease such
space designated in Landlord's notice, the parties
shall have thirty (30) days after the date of
Tenant's positive response during which to agree upon
the terms and conditions of Tenant's occupancy of
such space, which terms and conditions shall be based
upon the then prevailing market rate for the
Building. In the event Tenant fails to notify
Landlord of its interest in such space within the
appropriate time period after Landlord's notification
or, after having notified Landlord of such interest,
the parties are unable to reach a mutually
satisfactory agreement regarding Tenant's occupancy
of same within fifteen (15) days after submission by
Landlord of a lease agreement containing the terms
and conditions agreed upon by the parties, Landlord
shall have the right to lease such space to any other
party.
(e) Provided Tenant is not in default under the terms of
this Lease at the time that the option hereinafter
granted is exercisable or is to commence and Tenant
has not assigned its interest under this Lease
(except for a subsidiary or affiliate of Tenant),
Tenant shall have the right to extend the term of
this Lease for an additional period of five (5) years
(the "Renewal Term") on the same terms and conditions
contained in this Lease, except for the increase in
Base Rent as hereinafter provided. Written notice of
an election by Tenant to extend the term of this
Lease must be delivered to Landlord by certified
mail, return receipt requested, at least three
hundred (300) days prior to the commencement date of
the Renewal Term, but not more than three hundred
sixty-five (365) days prior to such commencement
date. In the event the option hereinabove provided is
not exercised within and in the manner herein
provided, then the same shall expire and be of no
further force or effect so long as Landlord has given
Tenant written notice at least four hundred (400)
days prior to the commencement date of the applicable
Renewal Term.
In the event Tenant exercises the option to extend
the term of this Lease, as hereinabove set forth, the
Base Pent to be paid by Tenant during the Renewal
Term shall be the product obtained by multiplying the
total number of rentable square feet then occupied by
Tenant in the Building by Thirty-Two Dollars
($32.00).
4. RENT:
Tenant shall pay to Landlord, as Base Rent for the Premises,
the rental set forth in subparagraph D of Paragraph 1 hereof. All rent shall be
payable on the first day of each calendar month during the term hereof. All such
rent shall be paid in advance without deduction or offset at the office of
Landlord or to such other person or at such other place as Landlord may
designate in writing.
In the event Tenant shall fail to pay, within five (5) days
after the same is due and payable, any installment of the Base Rent or any
additional rent to be paid by Tenant to Landlord under the terms of this Lease,
then such unpaid amounts shall bear interest from the due date thereof to the
date of payment at the rate of ten percent (10%) per annum. In any event,
however, Tenant shall be charged a service charge with respect to each monthly
installment of rental not received by the fifth (5th) day of the calendar month
for which said installment is due. Such service charge shall reimburse Landlord
for the additional administrative expenses incurred by Landlord in connection
with the collection of such late installment of monthly rental. The service
charge shall be Twenty and 00/100ths Dollars ($20.00) for any rental not paid by
the fifth (5th) day of the month and Fifty and 00/100ths Dollars ($50.00) for
any rental not paid by the fifteenth (15th) day of such month.
Tenant:
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5. RENT ADJUSTMENT:
(a) The following terms shall have the following
meanings with respect to the provisions of
this Paragraph 5:
(1) "Base Operating Expenses" shall mean the
amount set forth in subparagraph E of
Paragraph 1 of this Lease.
(2) "Tenant's Pro Rata Share" shall mean that
proportion of any increase in Operating
Expenses (as hereinafter defined) for any
calendar year over the Base Operating
Expenses as the total number of rentable
square feet of the Premises compares to the
total number of rentable square feet in the
Building. At such time, if ever, any space
is added to the Premises pursuant to the
terms of this Lease, Tenant's Pro Rata Share
shall be increased by the percentage
calculated by dividing the number of
additional rentable square feet by the total
number of rentable square feet in the
Building.
(3) "Operating Expenses" shall:
A. Mean all reasonable operating expenses of
any kind or nature with respect to the
Building Complex as determined in accordance
with industry standards and shall include,
but not be limited to, all general and
special real estate or ad valorem taxes or
special assessments levied against the
Building Complex by the State of Michigan or
any instrumentality thereof or any taxes or
assessments which shall be levied on the
Building Complex in lieu of or in addition
to all or any portion of any such real
estate taxes or assessments, or which shall
be levied on the rentals of the Building
Complex (other than net income taxes), but
in this case, the computation shall be made
as if this were Landlord's only building, or
which shall be levied on Landlord as a
result of the use, ownership or operation of
the Building Complex; the cost of Building
Complex supplies; costs incurred in
connection with all energy sources for the
common areas of the Building Complex such as
propane, butane, natural gas, steam,
electricity, solar energy and fuel oil; the
costs of water and sewer services;
janitorial services; general maintenance and
normal repair of the Building Complex,
including the heating and air conditioning
systems of the Building Complex; landscaping
maintenance; maintenance, repair, striping
and replacement of all parking areas
furnished by Landlord for use by tenants of
the Building; the cost of rubbish removal,
snow removal and service contracts for the
elevator, HVAC and alarm systems of the
Building Complex; the cost of such security
guard and protection services as may be
deemed reasonably necessary by Landlord;
insurance in amounts and coverage determined
by Landlord, including fire and extended
coverage, rental interruption, sprinkler
leakage, plate glass and public liability
insurance (but Tenant shall have no interest
in such insurance or the proceeds thereof);
labor costs incurred in the operation and
maintenance of the Building Complex,
including wages and other payments, costs to
Landlord of Workers' Compensation and
disability insurance; payroll taxes, and
welfare benefits; professional building
management fees; legal, accounting,
inspection and consultation fees incurred in
connection with the Building Complex solely
to the extent required by any governmental
authority or any other inspection or
consultation fees required for the normal
prudent operation of the Building Complex
and not normally the responsibility of the
managing agent; the cost of any capital
improvements to the Building
Tenant:
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Complex of a repair or replacement nature
only, which costs shall be amortized over
the useful life of the capital improvement
(as designated by Internal Revenue Service
regulations and guidelines); the cost of
obtaining an extended roof warranty for the
period between the eleventh (11th) and
fifteenth (15th) years of the Primary Lease
Term inspection and consultation fees for
professional roof inspections to be
conducted by Landlord; all other common area
costs and expenses relating to the Building
Complex and all other charges properly
allocable to the repair, operation and
maintenance of the Building Complex in
accordance with generally accepted
accounting principles. If the Building is
not fully occupied during any calendar year,
those components of Operating Expenses for
such year which vary according to the level
of occupancy shall be adjusted to reflect
the greater of: (a) actual occupancy; or (b)
a 95 percent (95%) occupancy of the
Building. If Landlord selects an accrual
accounting basis for calculating Operating
Expenses, Operating Expenses shall be deemed
to have been paid when such expenses have
accrued in accordance with generally
accepted accounting principles.
B. Expressly exclude Landlord's income
taxes, Single Business Tax or any gross
receipt tax; leasing commissions, interest
on debt or amortization payments on any
mortgages or deeds of trust and rental under
any ground or underlying leases or lease;
any costs or expenses which are incurred in
connection with, or for the benefit of, any
specific tenant; advertising and promotional
expenditures; the cost of any repairs to the
extent of any insurance proceeds recovered
by Landlord with respect thereto; and any
other expense which under generally accepted
accounting principles would not be
considered a normal maintenance or operating
expense, except as otherwise specifically
provided herein.
C. Expressly exclude, in addition, any costs
relating to the repair, replacement or
maintenance of the roof or outer walls of
the Building. Any cost incurred in replacing
the parking areas of the Building Complex
during the ten (10) year period subsequent
to the Commencement Date shall also be
excluded. In the event Landlord shall make a
capital expenditure, including, but not
limited to, the replacement of said parking
areas at any time subsequent to said tenth
(10th) anniversary date, then the cost(s)
thereof shall be amortized over the useful
life for such replacement (as determined by
Internal Revenue Service guidelines) and the
proportionate share of such cost allocable
to any year subsequent to the performance of
such replacement shall be included in the
Operating Expenses during each subsequent
year during the balance of the Primary Lease
Term and any Renewal Term.
(b) It is hereby agreed that during each calendar year of
the term hereof, Tenant shall pay to Landlord
Tenant's Pro Rata Share of the amount of any excess
Operating Expenses over Tenant's Pro Rata Share of
the Base Operating Expenses. Beginning with the first
calendar year in which this Lease commences, the
monthly rent to be paid by Tenant to Landlord shall
be increased by an amount equal to 1/12th of the
estimated increase, if any, in Tenant's Pro Rata
Share of the Operating Expenses for each calendar
year over Tenant's Pro Rata Share of the Base
Operating Expenses, with an adjustment to be made
between the parties at a later date as hereinafter
provided. However, in computing the increases in the
monthly rental for Tenant's Pro Rata Share of the
Operating Expenses for any calendar year based upon
the estimated increase thereof, there shall be taken
into account
Tenant:
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any prior increases in the monthly rent attributable
to Tenant's Pro Rata Share of the estimated increases
in such Operating Expenses. As soon as practicable
following the end of each calendar year during the
term of this Lease, [but in no event later than
ninety (90) days thereafter], Landlord shall submit
to Tenant a statement setting forth the exact amount
of the increase, if any, in Tenant's Pro Rata Share
of the Operating Expenses for the calendar year just
completed over Tenant's Pro Rata Share of the Base
Operating Expenses, and the difference, if any,
between Tenant's actual Pro Rata Share of the
Operating Expenses for the calendar year just
completed and the estimated amount of Tenant's Pro
Rata Share of the Operating Expenses (on which its
rent was based) for such year. Prior to the end of
each calendar year during the term hereof, Landlord
shall submit to Tenant a statement setting forth the
amount reasonably estimated by Landlord as the
increase, if any, in the Base Operating Expenses for
the subsequent year and the amount of the increased
monthly rent to be paid by Tenant for such subsequent
year computed in accordance with the foregoing
provisions. It is to be understood and agreed that
all estimating provisions as referenced above shall
be computed on the basis of the Operating Expenses
being adjusted as if the Building were not less than
95 percent (95%) occupied. To the extent that
Tenant's Pro Rata Share of the actual Operating
Expenses for the period covered by such statement is
different from the estimated increases upon which
Tenant paid rent during the calendar year just
completed, Landlord shall pay to Tenant, or Tenant
shall pay to Landlord, as the case may be, the
difference within thirty (30) days following receipt
of said statement from Landlord, but in no event
shall such statement be submitted later than ninety
(90) days after the end of the calendar year. In
addition, with respect to the monthly rent, until
Tenant receives such statement, Tenant's monthly rent
for the new calendar year shall continue to be paid
at the then current rate, but Tenant shall commence
payment to Landlord of the monthly installments of
rent on the basis of the statement beginning on the
first day of the month following the month in which
Tenant receives such statement. Moreover, Tenant
shall pay to Landlord, or shall receive a credit
against the next installment due hereunder, as the
case may be, on the date required for the first
payment of rent as adjusted, the difference, if any,
between the monthly installments of rent so adjusted
and the monthly installments of rent actually paid
during the new calendar year. In no event shall any
adjustment hereunder result in a decrease in the Base
Rent or additional rent payable pursuant to any other
provision of this Lease (except escalation pursuant
to this Paragraph 5), it being agreed that the
payments under this Paragraph 5 are an obligation
supplemental to Tenant's obligation to pay the Base
Rent.
(c) If Tenant occupies the Premises for less than a full
calendar year during the first or last calendar years
of the term hereof, Tenant's Pro Rata Share for such
partial year shall be calculated by proportionately
reducing the Base Operating Expenses to reflect the
number of months in such year during which Tenant
occupied the Premises (the "Adjusted Base Operating
Expenses"). The Adjusted Base Operating Expenses
shall then be compared with the actual Operating
expenses for said partial year to determine the
amount, if any of any increases in the actual.
Operating Expenses for such partial year over the
Adjusted Base Operating Expenses. Tenant shall pay
its Pro Rata Share of any such increases within
thirty (30) days following receipt of notice thereof.
(d) Landlord's failure during the Lease term to prepare
and deliver any statements or bills, or Landlord's
failure to make a demand under this Paragraph or
under any other provision of this. Lease shall not in
any way be deemed to be a waiver of, or cause
Landlord to forfeit or surrender, its rights to
collect any items of additional rent which may have
become due
Tenant:
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pursuant to this Paragraph during the term of this
Lease, except as otherwise specifically set forth in
this Lease and provided that if such failure shall
exist for more than twelve (12) months, Landlord
shall be deemed to have waived any claim therefor.
Tenant's liability for all additional rent due under
this Paragraph 5 shall survive the expiration or
earlier termination of this Lease.
(e) Statements required hereunder shall be in reasonable
detail identifying the amount and nature of the
estimates, and/or the final accounting calculations.
Tenant shall have the right to request an audit of
Landlord's books and records relating to Operating
Expenses, at its expense. If there is a dispute
arising out of Landlord's calculations, Landlord
shall make copies of its records available to Tenant.
(Any dispute not resolved between the parties shall
be submitted to binding arbitration.
(f) Notwithstanding anything to the contrary contained in
this Paragraph 5, in no event shall Tenant be
responsible for the payment of Tenant's Pro Rata
Share of any Operating Expenses allocable to the
calendar year of 1999.
Thereafter, commencing with Tenant's Pro Rata Share
for the calendar year 2000 and continuing throughout
the balance of the Primary Lease Term and any Renewal
Term, Landlord agrees that those components of
Operating Expenses, exclusive of real estate taxes,
utility charges, insurance premiums, and capital
expenditures permitted to be amortized pursuant to
Paragraph 5(a)C. above, shall not exceed one hundred
five percent (105%) of the Operating Expenses, on a
cumulative basis, for the same components incurred
during the preceding calendar year.
6. CHARACTER OF OCCUPANCY:
(a) The Premises are to be used only for those purposes
set forth in subparagraph F of Paragraph 1 hereof and
any other incidental use which is legally permitted
and is not inconsistent with the character and type
of tenancy found in first-class office buildings in
the Detroit, Michigan Metropolitan Area. The parties
hereto agree that Tenant shall have the right to
install a drive-up window and ATM machine (or in a
kiosk in the parking lot) at the Premises so long as
Landlord can obtain all required municipal approvals
therefore which Landlord shall undertake to obtain as
part of the overall approval process. The design and
location of any kiosk shall be subject to the
reasonable approval of Landlord. Tenant shall
maintain and repair, at Tenant's sole expense, any
such kiosk. Tenant shall also, at Tenant's expense,
remove the kiosk at the expiration of the lease term
and repair any damage to the parking lot caused by
such removal. The parties hereto. further agree that
the Premises may only be occupied by the maximum
number of persons stipulated in subparagraph G of
Paragraph 1 hereof and in the event of any violation
of such provision, Tenant agrees, upon notice from
Landlord, to reduce the number of persons occupying
the Premises to the maximum number set forth therein.
(b) Tenant shall not suffer nor permit the Premises nor
any part thereof to be used in any manner, nor
anything to be done therein, nor suffer or permit
anything to be brought into or kept therein, which
would in any way (i) make void or voidable any fire
or liability. insurance policy then in force with
respect to the Building; (ii) make unobtainable from
reputable insurance companies authorized to do
business in Michigan any fire insurance with extended
coverage, or liability, elevator, boiler or other
insurance required to be furnished by Landlord under
the terms of any lease or mortgage to which this
Lease is subordinate at standard rates provided
Tenant is not deprived of its intended use of the
Premises; (iii) cause or in Landlord's reasonable
Tenant:
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opinion be likely to cause physical damage to the
Building or any part thereof (iv) constitute a public
or private nuisance; (v) impair, in the reasonable
opinion of Landlord, the appearance, character or
reputation of the Building; (vi) discharge
objectionable fumes, vapors or odors into the
Building air conditioning system or into the Building
flues or vents not designed to receive them or
otherwise in such manner as may unreasonably offend
other occupants; (vii) impair or interfere with any
of the Building services or impair or interfere with
or tend to impair or interfere with the use of any of
the other areas of the Building by, or occasion
discomfort, or annoyance to Landlord or any of the
other tenants or occupants of the Building, any such
impairment or interference to be in the reasonable
judgment of Landlord; (viii) increase on an ongoing
periodic basis the pedestrian traffic in and out of
the Premises or the Building above an ordinary level;
(ix) constitute waste; or (x) make any noise or set
up any vibration which will disturb other tenants,
except in the course of permitted repairs or
alterations.
(c) Tenant shall not use the Premises nor permit anything
to be done in or about the Premises which will in any
way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which
may hereafter be enacted or promulgated. Tenant shall
give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement
of any public authority with respect to the Premises
or the use or occupation thereof. Landlord shall give
prompt notice to Tenant of any notice it receives
relative to the violation by Tenant of any law or
requirement of any public authority with respect to
the Premises or the use or occupation thereof.
7. SERVICES AND UTILITIES:
(a) Landlord agrees, without charge except as provided
herein, and in accordance with standards reasonably
established from time to time prevailing for office
buildings in the Metropolitan Detroit Area, to
furnish water to the Building for use in lavatories
and drinking fountains (and to the Premises if the
plans for the Premises so provide); during the hours
from 8:00 a.m. to 6:00 p.m. on Monday through Friday
and 8:00 a.m. to 1:00 p.m. on Saturday, (excluding
holidays) to furnish such heated or cooled air to the
Premises as may, in the judgment of Landlord, be
reasonably required for the comfortable use and
occupancy of the Premises provided that Tenant
complies with the recommendations of Landlord's
engineer regarding occupancy and use of the Premises;
to provided janitorial services for the Premises
(including such interior and exterior window washing
as may be determined by Landlord but no less
frequently than two (2) times per year), such
janitorial services to be provided after 6:00 p.m.
five (5) days a week or Monday through Friday
(excluding, legal holidays); during ordinary business
hours to cause electric current to be supplied for
lighting the public portions of the Building or
Building Complex; and to furnish such snow removal
services to the Building Complex as may, in the
judgment of Landlord, be reasonably required for safe
access to the Building Complex.
Landlord agrees to maintain the Building at a
habitable level at all times and Tenant will have the
ability to override the system to provide, at
Tenant's cost, for HVAC before or after Building
standard hours.
(b) Tenant hereby agrees to pay all charges with respect
to electrical services furnished to or used within
the Premises. Landlord agrees to provide and install
appropriate meters at the Premises for measuring
Tenant's consumption of electricity as part of
Landlord's construction work pursuant to Paragraph 20
(a) hereof. Tenant shall pay all such charges for
electricity within ten (10) days after the date of
submission of a monthly statement to
Tenant:
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Tenant. Charges for electricity shall be at the same
rates, terms and conditions as rates, terms and
conditions for comparable services from The Detroit
Edison Company.
(c) If Tenant requires water in excess of that usually
furnished or supplied for use in the Premises as
general office space, Tenant shall first procure the
consent of Landlord for the use thereof. Tenant
agrees to pay to Landlord such amounts as Landlord
reasonably determines are necessary to cover the
costs of such increased use of water, including any
cost incurred in connection with the installation of
a meter required to measure such use.
(d) Tenant agrees that Landlord shall not be liable for
failure to supply any heating, air conditioning,
elevator, electrical, janitorial, lighting or other
services during any period when Landlord uses
reasonable diligence to supply such services, or
during any period Landlord is required to reduce or
curtail such services pursuant to any applicable
laws, rules or regulations, now or hereafter in force
or effect, it being understood that Landlord may
discontinue, reduce or curtail such. services, or any
of them (either temporarily or permanently), at such
times as it may be necessary by reason of accident,
unavailability of (Employees, repairs, alterations,
improvements, strikes, lockouts, riots, acts of God,
application of applicable laws, statutes, rules and
regulations, or due to any other happening beyond the
control of Landlord. In the event of any such
interruption, reduction or discontinuance of
Landlord's services (either temporary or permanent),
Landlord shall not be liable for damages to persons
or property as a result thereof, except for damage
relating solely to its negligence, nor shall the
occurrence of any such event in any way be construed
as an eviction of Tenant or cause or permit an
abatement, reduction or setoff of rent, or operate to
release Tenant from any of Tenant's obligations
hereunder.
Anything in this Lease to the contrary
notwithstanding if the stoppage of services which
Landlord is obligated to provide for Tenant causes
any portion of the Premises to become unusable by
Tenant or access to the Premises is barred thereby
for more than three (3) consecutive days, then and in
that event, Tenant shall be entitled to a pro rata
abatement of rent as to such unusable portion of
Premises commencing with the fourth (4th) day that
the same are unusable; provided; however, that Tenant
shall not be entitled to any abatement of rent due to
unusability: (a) caused by any act or omission of
Tenant or any of Tenant's servants, employees,
agents, visitors or licensees; or (b) where Tenant
requests Landlord to make a decoration, alteration,
improvement or addition; or (c) where the repair in
question or the services in question are those which
Tenant is obligated to make or furnish under any of
the provisions of this Lease.
(e) Whenever heat generating machines or equipment are
used by Tenant in the Premises which affect the.
temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to
install supplementary air conditioning units in the
Premises in the event Landlord's independent
consulting engineer determines same are reasonably
necessary as a result of Tenant's use of lights or
equipment which generate heat loads in excess of
those for which the HVAC system is designed and the
cost therefor, including the cost of installation,
operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord.
8. QUIET ENJOYMENT:
Landlord warrants and agrees to defend Tenant in the quiet
enjoyment and possession of the Premises during the term of this Lease
so long as Tenant complies with the provisions
Tenant:
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hereof. In the event of any transfer or transfers of Landlord's
interest in the Premises or in the real property which is inclusive of
the Premises other than a transfer for security purposes only, the
transferor shall be automatically relieved of any and all obligations
and liabilities on the part of Landlord accruing from and after the
date of such transfer other than the obligation to refund any security
deposits, rebates, operating expenses or other payments or damages for
which Landlord was liable or for which a claim arose during its period
of ownership.
9. MAINTENANCE AND REPAIRS:
(a) Landlord agrees to maintain the Building and Building
Complex in a first class condition consistent with
the standards therefor set by similar type buildings
located in the same general area as the Building.
Landlord shall make all necessary repairs and
replacements to the non-leasable areas of the
Building, to the Treating, air conditioning and
electrical systems located in the Building, and to
the common areas, including parking areas, and
Landlord shall also make all repairs to the Premises
which are structural in nature; provided, however,
that Tenant shall make all repairs and replacements
arising from its act, neglect or default and that of
its agents, servants and employees,
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 Premises or of the Building
(unless the same result 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
Premises, such interference shall not relieve Tenant
from the performance of its obligations hereunder.
(b) Tenant, at Tenant's sole cost and expense, except for
services furnished by Landlord pursuant to Paragraph
7 hereof, shall maintain the Premises in good order,
condition and repair, reasonable wear and tear
excepted; and to the extent such items exceed
Building standards, plumbing pipes, electrical
wiring, switches, fixtures and other special items
subject to the provisions of Paragraph 15. In the
event Tenant fails to maintain the Premises in good
order, condition and repair, Landlord shall give
Tenant detailed written notice to do such acts as are
reasonably required to so maintain the Premises. In
the event Tenant fails to promptly commence such work
and diligently prosecute it to completion, then
Landlord shall have the right, but shall not be
required, to do such acts and expend such funds at
the expense of Tenant' as are reasonably required to
perform such work. Landlord shall have no liability
to Tenant for any damage, inconvenience or
interference with the use of the Premises by Tenant
as a result of performing any such work; other than
liability for the gross negligence and wilful
misconduct of Landlord, its agents or employees.
(c) Landlord and Tenant shall each do all acts required
to comply with all applicable laws, ordinances,
regulations and rules of any public authority
relating to their respective maintenance obligations
as set forth herein.
10. ALTERATIONS AND ADDITIONS:
(a) Tenant shall make no alterations, additions or
improvements to the Premises or any part thereof
without obtaining the prior written consent of
Landlord, which shall consent not be unreasonably
withheld. Landlord may impose, as a condition to the
aforesaid consent, such requirements as Landlord may
Tenant:
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deem necessary in its reasonable judgment, including
without limitation the manner in which the work is
done, a right to require Tenant to use Landlord's
contractor and the times during which it is to be
accomplished. Tenant further agrees not to connect
with Building systems, including electric wires,
water pipes, fire safety and mechanical systems, any
apparatus, machinery or device without the prior
written consent of Landlord.
(b) All alterations and additions to the Premises
(whether performed with or without Landlord's consent
as provided herein), shall be deemed a part of the
real estate and the property of Landlord and shall
remain upon and be surrendered with the Premises as
apart thereof without molestation, disturbance or
injury at the end of said term, whether by lapse of
time or otherwise, unless Landlord, by notice given
to Tenant no later than fifteen (15) days after
Tenant's written request to install any alterations,
additions or improvements after the completion of the
initial improvements to the Premises by Landlord,
shall require Tenant to remove all or any of such
alterations or additions excluding standard Tenant
finish work and non-movable office walls), and in
such event, Tenant shall promptly remove, at its sole
cost and expense, such alterations and additions and
restore the Premises to the condition in which the
Premises were prior to the making of the same,
reasonable wear and tear excepted. Any such removal,
whether required or permitted by Landlord, shall be
at Tenant's sole cost and expense, and Tenant shall
restore the Premises to the condition in which the
Premises were prior to the making of the same,
reasonable wear and tear excepted. All movable
partitions, trade fixtures, machines and equipment
which are installed in the Premises by or for the
account of Tenant, without expense to Landlord, and
can be removed without permanent structural damage to
or defacement of the Building or the Premises, and
all furniture, furnishings and other articles of
personal property owned by Tenant and located in the
Premises (all of which are herein called "Tenant's
Property"), shall be and remain the property of
Tenant and may be removed by it at any time during
the term of this Lease. However, if any of Tenant's
Property is removed, Tenant shall repair or pay the
cost of repairing any damage to the Building or the
Premises resulting from such removal. All additions
or improvements which are to be surrendered with the
Premises shall be surrendered with the Premises, as a
part thereof, at the end of the term or the earlier
termination of this Lease.
(c) If Landlord authorizes persons requested by Tenant to
perform any alterations, repairs, modifications or
additions to the Premises, then prior to the
commencement of any such work, Tenant shall on
request of Landlord deliver to Landlord certificates
issued by insurance companies qualified to do
business in the State of Michigan evidencing that
Workers' Compensation, public liability insurance and
property damage insurance, all in amounts, with
companies and on forms reasonably satisfactory to
Landlord, are in force and effect and maintained by
all such contractors and subcontractors engaged by
Tenant to perform such work. All such policies shall
name Landlord as an additional insured. Each such
certificate shall provide that the same may not be
cancelled or modified without thirty (30) days prior
written notice to Landlord.
(d) Tenant, at its sole cost and expense, shall cause any
permitted alterations, decorations, installations,
additions or improvements in or about the Premises to
be performed in compliance with all applicable
requirements of insurance bodies having jurisdiction,
and in such manner as hot to interfere with, delay,
or impose any additional expense upon Landlord in the
construction, maintenance or operation of the
Building, and so as to maintain harmonious labor
relations in the Building.
Tenant:
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11. ENTRY BY LANDLORD:
Landlord and its agents shall have the right to enter the
Premises at all reasonable times during normal business hours, and upon
reasonable notice [at least twenty four (24) hours prior to proposed entry,
except in the event of emergency] for the purpose of examining or inspecting the
same, to supply any services to be provided by Landlord for Tenant hereunder, to
show the same to prospective purchasers of the Building, to make such
alterations, repairs, improvements or additions to the Premises or to the
Building of which they are a part as Landlord may deem necessary, and to show
the same to prospective tenants of the Premises (provided that in the event of
a bona fide emergency, Landlord may enter the Premises without advance notice.
solely for the purpose of taking emergency action). Landlord may for the purpose
of supplying scheduled janitorial services, enter the Premises by means of a
master key without liability to Tenant and without affecting this Lease.
12. CONSTRUCTION LIENS:
Tenant shall pay or cause to be paid all costs for work done
by Tenant or caused to be done by Tenant on the Premises of a character which
will or may result in liens on Landlord's interest therein and Tenant will keep
the Premises free and clear of all construction liens and other liens on account
of work done for Tenant or persons claiming under it. Tenant and Landlord each
hereby agree to indemnify, defend and save each other harmless of and from all
liability, loss, damage, injury, costs or expenses, including reasonable
attorneys' fees, incurred on account of any claims of any nature whatsoever for
work performed for, or materials or supplies furnished to Tenant, including lien
claims of laborers, materialmen or others. Should any such liens be filed or
recorded against the Premises with respect to work done or for materials
supplied to or on behalf of Tenant or any action affecting the title thereto be
commenced, Tenant shall cause such liens to be removed of record within five (5)
days after notice from Landlord. If Tenant desires to contest any such claim of
lien, it shall furnish Landlord with adequate security of at least 125 percent
(125%) of the amount of the claim, plus estimated costs and interest, and if a
final judgment establishing the validity or existence of any lien for any amount
is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in paying any charge for which such construction lien or suit to
foreclose such a lien has been recorded or filed and shall not have given
Landlord security as aforesaid, Landlord may (but without being required to do
so) pay such lien or claim and any costs, and the amount so paid, together with
reasonable attorneys' fees incurred in connection therewith, shall be
immediately due from Tenant to Landlord.
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:
(a) Tenant hereby indemnities and agrees to hold Landlord
harmless from and to defend Landlord against any and
all claims of liability for any injury or damage to
any person or property whatsoever occurring in, on or
about the Building Complex, the Premises or any part
thereof and provided that such injury or damage is
caused in whole by the act, neglect, fault or
omission of any duty with respect to the same by
Tenant, its agents, contractors or employees. Tenant
further indemnifies and agrees to hold Landlord
harmless from and against any and all claims arising
from any 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 act or
negligence of Tenant, or any of its agents,
contractors or employees from and against all costs,
reasonable attorneys' fees and expenses.
Landlord agrees to indemnify and hold Tenant harmless
from and defend Tenant against any and all claims of
liability for any injury or damage to any person or
property whatsoever when such injury or damage is
caused in part or whole by the act, neglect, fault or
omission of any duty with respect to same by
Landlord, its agents, contractors, employees or
invitees.
Tenant:
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(b) Landlord shall not be liable to Tenant for any damage
by or from any act or negligence of any co-tenant or
other occupant of the Building, or by any owner or
occupant of adjoining or contiguous property. To the
extent not covered by normal fire and extended
coverage insurance, Tenant agrees to pay for all
damage to the Building Complex, as well as all damage
to tenants or occupants thereof, caused by Tenant's
misuse or neglect of the Premises or any portion of
the Building Complex.
(c) Neither Landlord nor its agents shall be liable for
any damage to property entrusted to Landlord, its
agents or employees of the building manager, if any,
nor for the loss or damage to any property by theft
or otherwise, nor for any, injury or damage to
persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, sprinkler
system leakage, water or rain which may leak from any
part of the Building or from the pipes, appliances or
plumbing works therein or from the roof, street or
subsurface or from any other place or resulting from
dampness or any other cause whatsoever; provided,
however, nothing contained herein shall be construed
to relieve Landlord front liability for any property
damage, personal injury resulting from its negligence
or wilful misconduct or that of its agents, servants
or employees. Landlord or its agents shall not be
liable for interference with the lights, view or
other incorporeal hereditaments. Landlord and Tenant
shall give prompt notice mutual notice to each other
in case of fire or accidents in the Premises or in
the Building or of defects therein or in the fixtures
or equipment.
(d) In case any action or proceeding is brought against
Landlord or Tenant by reason of any obligation on
their respective parts to be performed Lender the
terms of this Lease, or arising from any of their
acts or negligence of them, respectively, or of their
agents or employees, such party, upon notice from the
other party shall defend the same at its expense by
counsel reasonably satisfactory to the party giving
such notice.
14. INSURANCE:
(a) Tenant shall procure and keep in effect public
liability and property damage insurance, naming the
Landlord as an additional insured, with companies and
in a form satisfactory to Landlord, in the sum of One
Million and 00/100ths Dollars ($1,000,000.00)for
damages resulting to one person, and Two Million and
00/100ths Dollars ($ 2,000,000.00) for damages
resulting from one casualty, and Two Million and
00/100ths Dollars ($2,000,000.00) for damage to
property resulting from any one occurrence and shall
deliver said policies or certificates to Landlord
prior to initial occupancy and continuously maintain
such coverage thereafter. Landlord shall have the
right, upon not less than thirty (30) days' prior
written notice, to raise the limits hereinabove set
forth not more often than every three (3) years
during the term of this Lease. Landlord may, procure
the same for the account of Tenant, and the cost
thereof shall be paid to Landlord upon receipt by
Tenant of bills therefore.
(b) Tenant shall procure and maintain at its own cost
during the term of this Lease and any extension
hereof fire and extended coverage insurance on
property of Tenant.
(c) Each party agrees to use its best efforts to include
in each of its policies insuring against loss, damage
or destruction by fire or other casualty (insuring
the Building and Landlord's Property therein and
rental value thereof, in the case of Landlord, and
insuring Tenant's Property and business interest in
the Premises [business interruption insurance] in the
case of
Tenant:
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Tenant), a waiver of the insurer's right of
subrogation against the other party, or if such
waiver should be unobtainable or unenforceable (i) an
express agreement that such policy shall not be
invalidated if the insured waives the right of
recovery against any party responsible for a casualty
covered by the policy before the casualty, or (ii)
any other form of permission for the release of the
other party. If such waiver, agreement or permission
shall not be, or shall cease to be, obtainable
without additional charge or at all, the insured
party shall so notify the other party promptly after
learning thereof. In such case, if the other party
shall so elect and shall pay the insurer's additional
charge therefor, such waiver, agreement or permission
shall be included in the policy, or the other party
shall be named as an additional insured in the
policy. Each such policy which shall so name a party
hereto as an additional insured shall contain, if
obtainable, agreements by the insurer that the policy
will not be cancelled without at least thirty (30)
days prior notice to both insureds and that the act
or omission of one insured will, not invalidate the
policy as to the other insured.
(d) Each party hereby releases the other party with
respect to any claim (including a claim for
negligence) which it might otherwise have against the
other party for loss, damage or destruction with
respect to its property (including the Building,
Building Complex, the Premises and rental value or
business interruption) occurring during the term of
this Lease, but only to the extent to which it is
covered by insurance under a policy or policies
containing a waiver of subrogation or permission to
release liability or naming the other party as an
additional insured as provided above.
(e) Any building employee to whom property shall be
entrusted by or on behalf of Tenant shall be deemed
to be acting as Tenant's agent with respect to such
property and neither Landlord nor its agents shall be
liable for any damage to the property of Tenant or
others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant
by theft or otherwise.
15. DAMAGE OR DESTRUCTION TO BUILDING:
(a) In the event the Premises or the Building are damaged
by fire or other insured casualty and the insurance
proceeds have been made available therefor by the
holder or holders of any mortgages or deeds of trust
covering the Building, the damage shall be repaired
by and at the expense of Landlord to the extent of
such insurance proceeds available therefor, provided
such repairs and restoration can, in Landlord's
reasonable opinion, be made within one hundred eighty
(180) days after the occurrence of such damage
without the payment of overtime or other premiums,
and until such repairs and restoration are completed
the rent shall be abated in proportion to the part of
the Premises which is unusable by Tenant in the
conduct of its business (but there shall be no
abatement of rent by reason of any portion of the
Premises being unusable for a period equal to three
(3) days or less). Landlord agrees to notify Tenant
within thirty (30) days after such casualty if it
estimates that it will be unable to repair and
restore the Premises within said one hundred eighty
(180) day period. Such notice' shall set forth the
approximate length of time Landlord estimates will be
required to complete such repairs and restoration.
Notwithstanding anything to the contrary contained
herein, if Landlord cannot or estimates it cannot
make such repairs and restoration within said one
hundred eighty (180) day period, then Tenant may, by
written notice to Landlord, cancel this Lease as of
the date of the occurrence of such damage, provided
such notice is given to Landlord within fifteen (15)
days after Landlord notifies Tenant of the estimated
time for completion of such repairs and restoration.
Except as provided in this Paragraph 15, there shall
be no abatement of rent and no liability of Landlord
by reason of any injury
Tenant:
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to or interference with Tenant's business or property
arising from the making of any such repairs,
alterations or improvements in or to fixtures,
appurtenances and equipment. Tenant understands that
Landlord will not carry insurance of any kind on
Tenant's furniture and furnishings or on any fixtures
or equipment removable by Tenant Lender the
provisions of this Lease, and that Landlord shall not
be obligated to repair any damage thereto or replace
the same. Landlord shall not be required to repair
any injury or damage by fire or other cause, or to
make any repairs or replacements of improvements
installed in the Premises by or for Tenant.
(b) In case the Building throughout shall be so injured
or damaged, whether by fire or otherwise (though the
Premises may not be affected, or if affected, can be
repaired within said ninety (90) days) that Landlord,
within sixty (60) days after the happening of such
injury, shall decide not to reconstruct or rebuild
the Building, then notwithstanding anything contained
herein to the contrary, upon notice in writing to
that effect given by Landlord to Tenant within said
sixty (60) days, Tenant shall pay the rent, properly
apportioned up to date of such occurrence, this Lease
shall terminate from the date of delivery of said
written notice, and both parties hereto shall be
freed and discharged from all further obligations
hereunder, provided that if usable in part Tenant may
hold over at pro rata rent for upon to one hundred
fifty (150) days.
16. CONDEMNATION:
(a) If the whole of the Premises or so much thereof as to
render the balance unusable by Tenant for the proper
conduct of its business shall be taken under power of
eminent domain or transferred Lender threat thereof,
then this Lease, at the option of either Landlord or
Tenant exercised by either party giving notice to the
other of such termination within thirty (30) days
after such conveyance or taking possession whichever
is earlier, shall forthwith cease and terminate and
the rent shall be duly apportioned as of the date of
such taking or conveyance. No award for any partial
or entire taking shall be apportioned, and Tenant
hereby assigns to Landlord any award which may be
made in such taking or condemnation, together with
any and all rights of Tenant now or hereafter arising
in or to the same or any part. thereof; provided,
however, that nothing contained herein shall be
deemed to give Landlord any interest in or to require
Tenant to assign to Landlord any award made to Tenant
for the taking of personal property and fixtures
belonging to Tenant and/or for expenses of moving to
a new location or for Tenant's interest in the
leasehold estate. In the event of a partial taking
which does not result in a termination of this Lease,
rent shall be reduced in proportion to the reduction
in the size of the premises so taken and this Lease
shall be modified, accordingly. Promptly after
obtaining knowledge thereof, Landlord or Tenant, as
the case may be, shall notify the other of any
pending or threatened condemnation or taking
affecting the Premises or the Building.
(b) If all or any portion of the Premises shall be
condemned or taken for governmental occupancy for
less than ninety (90) days, this Lease shall not
terminate and Tenant shall be entitled to receive the
entire award therefor (whether paid as damages, rent
or otherwise) unless the period of governmental
occupancy extends beyond the expiration of this
Lease, in which case Landlord shall be entitled to
such part of such award as shall be properly
allocable to the cost of restoration of the Premises
to the extent any such award is specifically made for
such purpose, and the balance of such award shall be
apportioned between Landlord and Tenant as of the
date of such expiration. If the termination of such
governmental occupancy is prior to the expiration of
this Lease, Tenant shall, to the extent an award has
been
Tenant:
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made for such purpose, restore the premises as nearly
as possible to the condition in which they were prior
to the condemnation or taking.
17. ASSIGNMENT AND SUBLETTING:
Tenant covenants not to assign or transfer this Lease or
hypothecate, or mortgage the same or sublet the Premises or any part thereof or
use or permit them to be used for any purpose other than above-mentioned,
without the consent of Landlord, which consent shall not be unreasonably
withheld.
Notwithstanding anything to the contrary hereinabove
contained, it is hereby agreed that Landlord shall not be deemed to have
unreasonably withheld its consent if Landlord refuses to consent to a proposed
assignment or subletting of the Premises or any portion thereof for use by the
proposed assignee or subtenant: (i) as an office furnishing drug, alcohol or
similar counseling services; (ii) as an office of any governmental agency
(including, without limitation, social service agency); or (iii) for any purpose
which is not consistent with the then existing tenant mix in the building.
Notwithstanding the above, Tenant shall have the right to
assign or sublet to any entity which is a subsidiary or affiliate of Tenant, an
entity which Tenant merges with or into, or an entity purchasing all or
substantially all of Tenant's assets without Landlord's approval.
18. ESTOPPEL CERTIFICATE:
Tenant further agrees at any time and from time to time, on or
before ten (10) days after written request by Landlord, to execute, acknowledge
and deliver to Landlord an estoppel certificate certifying (to the extent it
believes the same to be true) that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified, and stating the modifications), that there have been no
defaults thereunder by Landlord or Tenant (or if there have been defaults,
setting forth the nature thereof), and the date to which the rent and other
charges have been paid, if any, it being intended that any such statement
delivered pursuant to this Paragraph may be relied upon by any prospective
purchaser of all or any portion of Landlord's interest herein, or a holder of
any mortgage encumbering any portion of the Building Complex. Tenant's failure
to deliver such statement within such time shall be a default under this Lease
and shall be conclusive upon Tenant that:
(a) This Lease is in full force and effect without
modification except as may be represented by
Landlord;
(b) There are no uncured defaults in Landlord's
performance;
(c) Not more than one (1) month's rent has been paid in
advance; and
(d) The amount of any security deposit paid to, and held
by, Landlord.
19. DEFAULT:
(a) The following events (herein referred to as an "event
of default") shall constitute defaults of Tenant
hereunder:
(1) Tenant shall default in the due and punctual
payment of rent, or any other amounts
payable hereunder, and such default shall
continue for ten (10) days after receipt of
written notice from Landlord;
(2) This Lease or the estate of Tenant hereunder
shall be transferred to or shall pass to or
devolve upon any other person or party in
violation of
Tenant:
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this Lease, except with respect to an
assignment of subletting permitted under
Paragraph 17 above, or except as permitted
herein;
(3) This Lease or the Premises or any part
thereof shall be taken upon execution or by
other process of law directed against
Tenant, or shall be taken upon or subject to
any attachment at the instance of any
creditor or claimant against Tenant, and
said attachment shall not be discharged or
disposed of within sixty (60) days after the
levy thereof;
(4) Tenant shall file a petition in bankruptcy
or insolvency or for reorganization or
arrangement under the bankruptcy laws of the
United States or under any insolvency act of
any state, or shall voluntarily take
advantage of any such law or act by answer
or otherwise, or shall be dissolved or shall
make an assignment for the benefit of
creditors, unless such action n will permit
Tenant to continue performance of this
Lease;
(5) Involuntary proceedings under any such
bankruptcy law or insolvency act or for the
dissolution of Tenant shall be instituted
against Tenant, or a receiver or trustee
shall be appointed of all or substantially
all of the property of Tenant, and such
proceeding shall not be dismissed or such
receivership or trusteeship vacated within
ninety (90) days after such institution or
appointment unless such action will permit
Tenant to continue performance of this
Lease;
(6) Tenant shall fail to take possession of the
Premises within ninety (90) days of the
Commencement Date;
(7) Tenant shall abandon the Premises for sixty
(60) consecutive days; and
(8) Tenant shall fail to perform any of the
other agreements, terms, covenants or
conditions hereof on Tenant's part to be
performed, and such non-performance shall
continue for a period of thirty (30) days
after notice thereof by Landlord to Tenant,
or if such performance cannot be reasonably
had within such thirty (30) day period,
Tenant shall not in good faith have
commenced such performance with such thirty
(30) day period and shall not diligently
proceed therewith the to completion.
(b) Upon the occurrence of an event of default, Landlord
shall have the right, at its election, then or at any
time thereafter and while any such event of default
shall continue, either:
(1) To give Tenant written notice of Landlord's
intention to terminate this Lease on the
date of such given notice or on any later
date specified therein, whereupon the date
specified in such notice, Tenant's right to
possession of the Premises shall cease and
this Lease shall thereupon be terminated,
except as to Tenant's liability, as if the
expiration of the term fixed in such notice
were the end of the term herein originally
demised; or
(2) To re-enter and take possession of the
Premises or any part thereof, and repossess
the same as Landlord's former estate and
expel Tenant and those claiming through or
under Tenant, and remove the effects of both
or either, using such force for such
purposes as may be reasonably necessary,
without being liable for prosecution
thereof,
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without being deemed guilty of any manner of
trespass, and without prejudice to any
remedies for arrears of rent or preceding
breach of covenants or conditions. Should
Landlord elect to re-enter as provided in
this Paragraph 19(b)(2) or should Landlord
take possession pursuant to legal
proceedings or pursuant to any notice
provided for by law, Landlord may, from time
to time, without terminating this Lease,
relet the Premises or any part thereof in
Landlord's or Tenant's name, but for the
account of Tenant, for such term or terms
(which may be greater or less than the
period which would otherwise have
constituted the balance of the term of this
Lease) and on such conditions and upon such
other terms (which may include concessions
of free rent and alteration and repair of
the Premises) as Landlord, in its sole
discretion, may determine, and Landlord may
collect and receive the rents therefor.
Landlord shall in no way be responsible or
liable for any failure to relet the
Premises, or any part thereof, or for any
failure to collect any rent due upon such
reletting. No such re-entry or taking
possession of the Premises by Landlord shall
be construed as an election on Landlord's
part to terminate this Lease unless a
written notice of such intention be given to
Tenant. No notice from Landlord hereunder or
under a forcible entry and retainer statute
or similar law shall constitute an election
by Landlord to terminate this Lease unless
such notice specifically so states. Landlord
reserves the right following any such
re-entry and/or reletting to exercise its
right to terminate this Lease by giving
Tenant such written notice, in which event
this Lease will terminate as specified in
said notice.
Notwithstanding anything to the contrary
hereinabove contained, it is understood and
agreed that Landlord shall use its best
efforts to mitigate any damages caused by an
event of default by Tenant on a commercially
reasonable basis; provided, however,
Landlord shall not be obligated to prefer
the Premises in any reletting to other
vacant premises in the Building.
(c) In the event that Landlord does not elect to
terminate this Lease as permitted in Paragraph
19(b)(1) hereof, but on the contrary, elects to take
possession as provided in Paragraph 1 9(b)(2), Tenant
shall pay to Landlord: (i) the rent and other sums as
herein provided, which would be payable hereunder if
such repossession had not occurred, less (ii) the net
proceeds, if any, of any reletting of the Premises
after deducting all Landlord's expenses in connection
with such reletting, including, but without
limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs
and expenses of preparation for such reletting. If,
in connection with any reletting, the new lease term
extends beyond the existing term, or the premises
covered thereby include other premises not part of
the Premises, a fair apportionment of the rent
received from such reletting and the expenses
incurred in connection therewith as provided
aforesaid will be made in determining the net
proceeds from such reletting.
(d) In the event this Lease is terminated, Landlord shall
be entitled to recover forthwith against Tenant as
damages for loss of the bargain and not as a penalty,
an aggregate sum which, at the time of such
termination of this Lease, represents the excess, if
any, of the aggregate of the rent and all other sums
payable by Tenant hereunder that would have accrued
for the balance of the term over the aggregate rental
value of the Premises (such rental value to be
computed on the basis of a tenant paying not only a
rent to Landlord for the use and occupation of the
Premises, but also such other charges as are
Tenant:
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required to be paid by Tenant under the terms of this
Lease) for the balance of such term, both discounted
to present worth at the rate of 10 percent (10%) per
annum.
(e) Suit or suits for the recovery of the amounts and
damages set forth above may be brought by Landlord,
from time to time, at Landlord's election and nothing
herein shall be deemed to require Landlord to await
the date whereon this Lease or the term hereof would
have expired by limitation had there been no such
default by Tenant or no such termination, as the case
may be. Each right and remedy provided for in this
Lease shall be cumulative and shall be in addition to
every other right or remedy provided for in this
Lease or now or hereafter existing at law or in
equity or by statute or otherwise, including, but not
limited to, suits for injunctive relief and specific
performance. The exercise or beginning of the
exercise by Landlord of any one or more of the rights
or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or
later exercise by Landlord of any and all other
rights or remedies provided for in this Lease or now
or hereafter existing at law or in equity or by
statute or otherwise. All costs incurred by Landlord
in connection with collecting any amounts and damages
owing by Tenant pursuant to the provisions of this
Lease or to enforce any provision of this Lease,
including reasonable attorneys' fees from the date
any such matter is turned over to an attorney, shall
also be recoverable by Landlord from Tenant.
(f) No failure by Landlord to insist upon the Strict
performance of any agreement, term, covenant or
condition hereof or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any
such breach, shall constitute a waiver of any such
breach of such agreement, term, covenant or
condition. No agreement, term, covenant or condition
hereof to be performed or complied with- by Tenant,
and no breach thereof, shall be waived, altered or
modified except by written instrument executed by
Landlord. No waiver of any breach shall affect or
alter this Lease, but each and every agreement, term,
covenant and condition hereof shall continue in full
force and effect with respect to any other then
existing or subsequent breach thereof.
Notwithstanding any unilateral termination of this
Lease, this Lease shall continue in force and effect
as to any provisions her thereof which require
observance or performance of Landlord or Tenant
subsequent to termination.
(g) Any amounts paid by either party to cure any defaults
of the other hereunder, shall, if not repaid by the
other party within ten (10) days of demand by the
party paying such amount, the hereinafter bear
interest at the rate of two percent (2%) above the
prime rate as established by the First of America
Bank - Detroit, N.A., or as quoted in the Wall Street
Journal, whichever is higher, until paid.
(h) Landlord and Tenant hereby acknowledge that a
subsidiary of Tenant, Michigan Heritage Bancorp, a
Michigan corporation, has entered into a lease with
Landlord covering other Premises in the Building (the
"Headquarters Lease"). The parties agree that any
default by the tenant under the Headquarters Lease,
shall constitute an event of default under this Lease
entitling Landlord to exercise all remedies available
to Landlord in the event of default hereunder as if
Tenant had committed an event of default hereunder.
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20. COMPLETION OF PREMISES:
(a) Landlord has agreed to complete the Premises as more
fully set forth in plans and specifications to be
prepared by Landlord and approved by Tenant. In
connection with the completion of the Premises,
Landlord shall contribute the sum of $27.50 per
rentable square foot in connection with the
installation of: (i) suite entrance door; (ii)
partitions; interior doors; (iv) ceiling treatment;
(v) wall treatment; (vi) window covering treatment;
(vii) floor treatment; (viii) light fixtures; (ix)
light switches; W electrical wall outlets; (xi)
telephone outlets; (xii) sound conditioning; and
(xiii) any other improvements over and above, and
alterations to, the standard building shell necessary
to prepare the Premises for Tenant's occupancy. In
the event, Tenant does not utilize the entire
contribution available from Landlord, the amount not
used by Tenant shall be a credit against rent and
other charges owed by Tenant under this Lease. In any
event, Landlord shall not have any obligation for the
repair or replacement of any. portions of the
interior of the Premises which are damaged or wear
out during the term hereof, regardless of the cause
therefore including, but not limited to, carpeting,
draperies, window coverings, wall coverings, painting
or any of Tenant's Property or betterments in the
Premises, except as otherwise specifically set forth
in this Lease. Except as otherwise provided in
Paragraph 3 of this Lease, the postponement of rent
and extension of the Commencement Date as herein
provided for such period shall be in full settlement
for all claims which Tenant might have. If Tenant
wishes to take possession of all or any part of the
Premises prior to the date the Premises are Ready for
Occupancy, it must first secure the prior written
consent of Landlord, and in such event, all terms and
provisions of this Lease shall apply. "Ready for
Occupancy" as that term is used herein shall mean the
date when all major construction aspects of the
Premises to be performed by Landlord to the extent
set forth in the approved plans and specifications,
are completed although minor items are not completed
(including, but not limited to, touch-up plastering
or repainting which does not unreasonably interfere
with Tenant's ability to carry on its business in the
Premises), all common areas and lobbies are finished
in accordance with building standards, interior and
exterior lighting installed, parking lot and covered
parking areas completed and striped and construction
equipment and refuse containers used in conjunction
with the construction are removed, and HVAC has been
tested and fully functional. The certificate of the
architect (or other, rep representative of Landlord)
in charge of supervising the completion of the
Premises and the issuance of a temporary certificate
of occupancy shall control the date upon which the
Premises are Ready for Occupancy.
(b) Tenant shall be permitted to enter into the Premises
for the purpose of installing furniture, fixtures and
equipment and other leasehold improvements,
including, but not limited to wall and floor
coverings, millwork and draperies, subject to the
terms of any prior written approval given by Landlord
therefor (which approval shall not be unreasonably
withheld), prior to the Commencement Date at its sole
risk and with no obligation to pay rent and provided
that such entry and work do not unreasonably
interfere in any way with the performance of
Landlord's work. At any time during such period of
prior entry, if Landlord notifies Tenant that
Tenant's entry or work is interfering with or
delaying the performance of work to be performed by
Landlord, Tenant shall forthwith discontinue any
further work and shall remove from the Premises, and
shall cause its workmen or contractors to remove
therefrom, any equipment, materials or installations
which are the subject of Landlord's notice.
(c) In the event that this Lease provides that Landlord
shall cause any work to be performed in the Premises
for Tenant, then the cost of such work shall be
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paid by Tenant on or before the tenth (10th) day
after receipt of an invoice from Landlord for such
completed job.
(d) At or before the commencement of the eleventh (11th)
year of the Primary Lease Term, Landlord shall make
available to Tenant a renovation and remodeling
allowance in an amount equal to the product obtained
by multiplying the total number of rentable square
feet then occupied by Tenant in the Building by Five
Dollars ($5.00). Said amount shall be disbursed by
Landlord to Tenant upon presentation to Landlord of
proof of payment for all alterations and renovations
made by Tenant at or about said time.
21. REMOVAL OF TENANT'S PROPERTY:
All movable furniture and personal effects of Tenant not
removed from the Premises within sixty (60) days after the vacation or
abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may
be appropriated, sold, stored, destroyed or otherwise disposed of by
Landlord without notice to Tenant and without obligation to account
therefor, and Tenant shall pay Landlord for all expenses incurred in
connection with the disposition of such property.
22. HOLDING OVER:
Should Tenant, with Landlord's written consent, hold over
after the termination of this Lease, Tenant shall become a tenant from
month to month only upon each and all of the terms herein provided as
may be applicable to such month to month tenancy and any such holding
over shall not constitute an extension of this Lease. During such
holding over, Tenant shall pay rent equal to 125 percent (125%) of the
last monthly rental rate and the other monetary charges as provided
herein. Such tenancy shall continue until terminated by Landlord or
Tenant by a written notice of its intention to terminate such tenancy
given at least ten (10) days prior to the date of termination of such
monthly tenancy.
23. PARKING AREAS:
Tenant, its employees, agents and visitors agree to obey and
abide by all rules and regulations established, modified and amended
from time to time by Landlord for the safety, protection, cleanliness
and preservation of order in connection with such parking ingress and
egress and other automobile and pedestrian use of the Building Complex.
Except as otherwise provided below with respect to customers of Tenant,
Landlord reserves the right to specifically assign and reassign from
time to time any and all of said parking spaces among the tenants of
the Building in any manner in which Landlord deems reasonable, in
Landlord's sole judgment and opinion or to allow the reservation of
parking spaces for the specific use of designated tenants of the
Building. Landlord shall not be responsible to Tenant, its employees,
agents or visitors for violations by any other tenant, visitor or user
of said parking facilities of said rules and regulations or assignment
of spaces, nor shall Landlord have any obligation to police the
unauthorized use of any such parking spaces. Tenant shall have the
right to utilize, at no additional expense, six (6) uncovered parking
spaces in a location close to the entrance of the Building nearest the
Premises for the exclusive use of Tenant's customers. In no event shall
Landlord be responsible for policing the unauthorized use of Tenant's
spaces.
24. SURRENDER AND NOTICE:
Upon the expiration or earlier termination of this Lease, Tenant shall
promptly quit and surrender to Landlord the Premises broom clean, in
good order and condition, ordinary wear and tear excepted, and Tenant
shall remove all of its movable furniture and other effects arid such
alterations, additions and improvements as Landlord. shall require
Tenant to remove pursuant to Paragraph 1 0. In the event Tenant fails
to vacate the Premises on a timely basis as required, Tenant shall be
responsible to Landlord for all costs incurred by Landlord as a
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result of such failure, including, but not limited to, any a mounts
required to be paid to third parties who were to have occupied the
Premises.
25. ACCEPTANCE OF PREMISES BY TENANT:
Taking possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises were in the
condition agreed upon between Landlord and Tenant, and acknowledgment
of satisfactory completion of the fix-up work which Landlord has agreed
in writing to perform, except as otherwise set forth herein or as
stated in a written Punch list delivered to Landlord within twenty (20)
days after the Commencement Date.
26. SUBORDINATION AND ATTORNMENT:
(a) This Lease, and all rights of Tenant hereunder, are
and shall be subject and subordinate in all respect
to all present and future ground leases, overriding
leases and underlying leases and/or grants of term of
the land and/or the Building or the Building Complex
now or hereafter existing and to all mortgages, deeds
of trust and building loan agreements, including
leasehold mortgages, deeds of trust and building loan
agreements, which may now or hereafter affect the
Building or the Building Complex or any of such
leases, whether or not such mortgages or deeds of
trust shall also cover other lands or buildings, to
each and every advance made or hereafter to be made
under such mortgages or deeds of trust, and to all
renewals, modifications, replacements and extensions
of such leases and such mortgages or deeds of trust.
This Paragraph shall be self-operative and no further
instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall
promptly execute and deliver any instrument, in
recordable form if required, that Landlord, the
lessor of any such lease or the holder of any such
mortgage or deed of trust, or any of their respective
successors in interest may reasonably request to
evidence such subordination. The leases to which this
Lease is, at the time referred to, subject and
subordinate pursuant to this Paragraph are
hereinafter sometimes called "superior lease" and the
mortgages or deeds of trust to which this Lease is,
at the time referred to, subject and subordinate are
hereinafter sometimes called "superior mortgages".
The lessor of a superior lease or the beneficiary of
a superior mortgage or their successors in interest
are hereinafter sometimes collectively referred to as
a "superior party".
(b) Tenant shall take no steps to terminate this Lease,
without giving written notice to such superior party,
and a reasonable opportunity to cure (without such
superior party being obligated to cure), any default
on the part of Landlord under this Lease, provided
that Tenant has been given written notice of the name
and address of any such superior party.
(c) In the event any proceedings are brought for the
foreclosure of, or in the event of the conveyance by
deed in lieu of foreclosure of, or in the event of
the exercise of the power of sale under, any superior
mortgage, Tenant hereby attorns to, and covenants and
agrees to execute an instrument in writing reasonably
satisfactory to the new owner whereby Tenant attorns
to, such successor in interest and recognizes such
successor as the Landlord under this Lease.
(d) If, in connection with the procurement, continuation
or renewal of any financing for which the Building or
the Building Complex, or of which the interest of the
lessee therein under a. superior lease, represents
collateral in whole or in part, an institutional
lender shall request reasonable modifications of this
Lease as a condition of such financing, Tenant will
not unreasonably withhold its consent thereto
provided that such modifications do not increase
Tenant:
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the obligations of Tenant under this Lease or
adversely affect any rights of Tenant or decrease the
obligations of Landlord under this Lease.
(e) So long as Tenant is not in default under this Lease,
Landlord agrees to obtain a non-disturbance agreement
from any superior party.
27. PAYMENTS AFTER TERMINATION:
No payments of money by Tenant to Landlord after the
termination of this Lease in any manner, or after giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, shall
reinstate, continue or extend the xxxxx) of this Lease or affect any
notice given to Tenant prior to the payment of such money, it being
agreed that after the service of notice of the commencement of a suit
or other final judgment granting Landlord possession of the Premises,
Landlord may receive and collect any sums of rent due, or any other
sums of money due under the terms of this Lease or otherwise exercise
its rights and remedies hereunder. The payment of such sums of money,
whether as rent or otherwise, shall not waive said notice or in any
manner affect any pending suit or judgment theretofore obtained.
28. AUTHORITIES FOR ACTION AND NOTICE:
(a) Except as herein otherwise provided, Landlord may act
in any matter provided for herein by its building
manager or any other person who shall from time to
time be designated in writing.
(b) All notices or demands required or permitted to be
given to Landlord hereunder shall be in writing, and
shall be deemed duly served when received, if hand
delivered, or five (5) days after deposited in the
United States mail, with proper postage prepaid,
certified or registered, return receipt requested,
addressed to Landlord at its principal office in the
Building, or at the most recent address of which
Landlord has notified Tenant in writing. All notices
or demands required to be given to Tenant hereunder
shall be in writing, and shall be deemed (July served
when received if hand delivered or within five (5)
days after deposited in the United States mail, with
proper postage prepaid, certified, or registered,
return receipt requested, addressed to Tenant at its
principal office in the Building. Either party shall
have the right to designate a different address to
which notice is to be mailed by serving on the other
party a written notice in the manner hereinabove
provided.
29. SECURITY DEPOSIT: [INTENTIONALLY OMITTED]
30. LIABILITY OF LANDLORD:
Tenant shall look only to Landlord's estate and interest in
the Building (or to the proceeds thereof) for the satisfaction of
Tenant's remedies for the collection of any judgment (or other judicial
process) requiring the payment of money by Landlord in the event of any
default by Landlord under this Lease, and no other property or other
assets of Landlord shall be subject to levy, execution or other
enforcement, procedure for the satisfaction of Tenant's remedies under
or with respect to this Lease and neither Landlord nor any of the
partners comprising the partnership which is the Landlord herein, shall
be liable for any deficiency. Nothing contained in this Paragraph shall
be construed to permit Tenant to offset against rents due a successor
landlord, a judgment (or other judicial process) requiring the payment
of money by reason of any default of a prior landlord, except as
otherwise specifically set forth herein.
Tenant:
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31. BROKERAGE:
Landlord agrees to be responsible for any fee or brokerage
commission due to Kirco Management Services, Ltd. in connection with the
execution of this Lease. Tenant agrees to be responsible for any fee or
brokerage commission due to Colliers Trerice Xxxxx in connection with the
execution of this Lease. Landlord and Tenant each hereby agree to indemnify and
hold the other harmless of and from any and all loss, cost, damage or expense
(including, without limitation, all counsel fees and disbursements) by reason of
any claim of or liability to any other broker claiming through it and arising
out of or in connection with the execution and delivery of this Lease. In the
event any claim shall be made by any other broker who shall claim to have
negotiated this Lease on behalf of Tenant or to have introduced Tenant to the
Building or to Landlord, Tenant shall have the right to defend any such action
by counsel to be selected by Tenant and approved by Landlord, which approval
shall not be unreasonably withheld, and in the event such broker shall be
successful in any such action, Tenant shall, in addition to making payment of
the claim of such broker, be responsible for all counsel fees incurred in such
action. Landlord agrees to be responsible for any fee or commission due to Kirco
Management Service, Ltd., with respect to the execution of this Lease and Tenant
agrees to be responsible for any fee or commission due to Colliers Trerice
Xxxxx, with respect to the execution of this Lease.
32. SIGNAGE:
No other sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the inside or outside of the Building unless
of such color, size and style and in such place upon or in the Building, as
shall be first designated by Landlord, but there shall be no obligation or duty
on Landlord to allow any sign, advertisement or notice to be inscribed, painted
or affixed on any part of the inside or outside of the Building, A directory in
a conspicuous place, with the names of Tenant, not to exceed two names per 1,000
square feet of space contained in the Premises, shall be provided by Landlord.
Any necessary revision to such directory shall be made by Landlord at Tenant's
expense, within a reasonable nine after notice from Tenant of the change making
the revision necessary. Landlord shall have the right to remove all
non-permitted signs without notice to Tenant, and at the expense of Tenant.
33. NAME OF BUILDING PROJECT:
Landlord hereby reserves the right, at any time and from time to time,
without notice to Tenant, to name of the Building or thereafter change the
Building name, at Landlord's sole discretion.
34. MEASUREMENT OF PREMISES:
The rentable square footage of the Premises, as stated in
Paragraph 1 hereof, shall be determined by the Building architect and is subject
to final construction documents and actual measurement of the Premises by the
Building architect. All measurements shall be made in accordance with the
American National Standard, Method for Measuring Floor Area in Office Buildings,
ANSI Z65.1 - 1990, also known as the "BOMA Standard", applied on a building
wide, fully multi-tenant basis. The Base Rent and other charges due hereunder
shall be adjusted based upon such measurement by the Building architect.
35. MISCELLANEOUS:
(a) The rules and regulations attached hereto and marked
Exhibit "B", as well as such rules and regulations as
may hereafter be adopted by Landlord for the safety,
care and cleanliness of the Premises and the Building
and the preservation of good order thereon, are
hereby expressly made a part hereof, and Tenant
agrees to obey all such rules and regulations. The
violation of any of such rules and regulations by
Tenant shall be deemed a breach of this Lease by
Tenant affording Landlord all the remedies set forth
herein. Landlord shall not be responsible to Tenant
for the nonperformance by any
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other tenant or occupant of the Building of any of
said rules and regulations. Notwithstanding the
provisions of this Paragraph 35, Landlord agrees that
it will not change or modify the rules and
regulations or adopt new rules and regulations as to:
(i) diminish or otherwise reduce the specific
obligations of Landlord to perform under the terms
and conditions of this Lease or (ii) interfere with
Tenant's use and enjoyment of the Premises, or (iii)
interfere with the conduct of Tenant's normal
business.
(b) The term "Landlord", as used in this Lease, so far as
covenants or obligations on the part of Landlord are
concerned, shall be limited to mean and include only
the owner or owners of the Building at the time in
question, and in the event of any transfer or
transfers of the title thereto, Landlord herein named
(and in the case of any subsequent transfers or
conveyances, the then grantor) shall be automatically
released from and after the date of such transfer or
conveyance of all liability in respect to the
performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter
to be performed and. relating to events occurring
thereafter; provided that any funds in the hands of
Landlord or the then grantor at the time of such
transfer in which Tenant has an interest shall be
turned over to the grantee, and any amount then due
and payable to Tenant by Landlord or the then grantor
under any provisions of this Lease shall be paid to
Tenant.
(c) If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws
effective during the term of this Lease, then and in
that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be
affected thereby, and it is also the intention on of
the parties to this Lease that in lieu of each clause
or provision of this Lease that is illegal, invalid
or unenforceable, there shall be added as a part of
this Lease a clause or provision as similar in terms
to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and
enforceable, provided such addition does not increase
or decrease the obligations of or derogate from the
rights or powers of either Landlord or Tenant.
(d) The captions of each paragraph are added as a matter
of convenience only and shall be considered of no
effect in the construction of any provision or
provisions of this Lease.
(e) Except as herein specifically set forth, all terms,
conditions and covenants to be observed and performed
by the parties hereto shall be applicable to and
binding upon their respective heirs, administrators,
executors and assigns. The terms, conditions and
covenants hereof shall also be considered to be
covenants running with the land.
(f) If there is more than one entity or person which or
who are the Tenants under this Lease, the obligations
imposed upon Tenant under this Lease shall be joint
and several.
(g) No act or thing done by Landlord or Landlord's agent
during the term hereof, including, but not limited
to, any agreement to accept surrender of the Premises
or to amend or modify this Lease, shall be deemed to
be binding upon Landlord unless such act or things
shall be by an officer of Landlord or a party
designated in writing by Landlord as so authorized to
act. The delivery of keys to Landlord, or Landlord's
agent, employees or officers shall not operate as a
termination of this Lease or a surrender of the
premises. No payment by Tenant, or receipt by
Landlord, of a lesser amount than the monthly rent
herein stipulated, shall be deemed to be other than
on account of the earliest stipulated rent, nor shall
any endorsement or statement on any
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check or any letter accompanying any such, or payment
as rent, be deemed an accord and satisfaction, and
Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance
of such rent or pursue any other remedy available to
Landlord.
(h) Landlord shall have the right to construct other
buildings or improvements in any plaza, or other area
designated by Landlord for use by tenants or to
change the location, character, or make alterations
of, or additions to, any of said plazas, or other
areas.
(i) Tenant acknowledges and agrees. that it has not
relied upon any statements, representations,
agreements or warranties except such as are expressed
in this Lease.
(j) Time is of the essence hereof.
(k) Tenant represents to Landlord that the party
executing this Lease is authorized to do so by
requisite action of the Board of Directors, or
partners, as the case may be, and agree upon request
to deliver to each other a resolution or similar
document to that effect.
(l) This Lease shall be governed by and construed in
accordance with the laws of the State of Michigan.
(m) This Lease, together with the Addendum and Exhibits
attached hereto, contains the entire agreement of the
parties and may not be amended or modified in any
manner except by an instrument in writing signed by
both parties.
36. GOVERNMENTAL APPROVALS/LANDLORD:
The parties acknowledge and agree that this Lease is
contingent upon Landlord obtaining from the City of Farmington Hills:
(i) rezoning of a portion of the Building Complex; and (ii) site plan
approval for the development of the Building and related improvements
from the City of Farmington Hills on or before September 30, 1998. In
the event Landlord is unable to obtain such rezoning and/or site plan
approval before the aforesaid date, Landlord shall have the right to
terminate this Lease by notifying Tenant in writing of such election.
In the event of any such election by Landlord, this Lease shall cease
and terminate and the parties shall thereafter have no further right or
responsibility hereunder.
37. LANDLORD'S WARRANTY:
Landlord warrants to Tenant that the Building Complex and all
equipment utilized in its operation, including, but not limited to, Hearing,
ventilation and air conditioning systems, elevators, security systems, alarms,
electrical, lighting sprinkler and fire safety equipment, plumbing and metering
systems, as well as all systems used by the management company with respect to
the accounting for rent and operating expenses, and all associated and related
hardware, software, and firmware, (including any substitutions, modifications
and replacements therefor) ("Listed Items") installed in or on the Building
Complex or used by Landlord, its agents and employees in the operation of the
Building Complex, shall be able to accurately process date related data
(including, but not limited to, calculating, comparing, and sequencing) from,
into, and between the year 1999 and the year 2000, including leap year
calculations, when used in accordance with the documentation provided by the
manufacturer thereof and when used in combination with other Listed Items shall
properly exchange date related data with it.
If the operation of the Building Complex requires that the
Listed Items must perform as a system in accordance with the foregoing warranty,
then that warranty shall apply to those Listed
Tenant:
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Items as a system. The duration of this warranty and the remedies available to
the Tenant for breach of this warranty shall be for the term of this Lease and
any extensions, including substitutions and replacements therefore.
Prior to the Commencement Date of this Lease, Landlord shall or cause a
vendor to perform a demonstration test in the presence of Tenant and, if
requested, federal or state financial institution personnel ("Regulator") to
confirm that each Listed Item complies with this clause. If the Item does not
comply, it will not be accepted. If the Tenant or Regulator decides it is not
practicable for Landlord to perform the demonstration test, Landlord will
instead, within five (5) business days of delivery, provide a certificate to the
Tenant stating that the purchased Items comply with this clause. If the
certificate is not received, acceptance of the Items will be revoked. If
non-compliance with the clause is discovered at any time after acceptance but
before February 1, 2001, the remedies available to the Tenant under this
warranty shall include repair, replacement or reimbursement for reprocurement of
an acceptable replacement Item including the full costs of the Item itself, and
all costs associated with such repair, replacement or reprocurement shall be
borne by the Landlord and shall not be deemed an Operating Expense which is
subject to reimbursement by the Tenant. Nothing in this warranty shall be
construed to limit any rights or remedies the Tenant may otherwise have under
this Lease with respect to defects other than Year 2000 performance.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
In the Presence of: RONTAL INVESTMENT COMPANY,
a Michigan co-partnership,
By:
------------------------------ ------------------------------
Its: Partner
------------------------------ -----------------------------
LANDLORD
MICHIGAN HERITAGE BANK,
a Michigan financial corporation
By:
------------------------------ ------------------------------
Its:
------------------------------ ------------------------------
TENANT
Tenant:
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