EXHIBIT 10.17
LEASE
THIS LEASE AGREEMENT ("Lease") is made as of this 31st day of
October, 2003, by and between VAN DYKE OFFICE LLC, a Michigan limited
liability company (the "Landlord"), whose address is 00000 Xxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, and ASSET ACCEPTANCE, LLC, a Delaware limited
liability company (the "Tenant"), whose address is 0000 Xxxxxx Xxxx, Xxxxxx,
Xxxxxxxx, 00000.
ARTICLE X. XXXXX AND TERM.
SECTION 1.01. LEASED PREMISES. Landlord, in consideration of the rent
to be paid and the covenants to be performed by Tenant, does hereby demise and
lease unto Tenant, and Tenant hereby rents from Landlord, those certain premises
(hereinafter "Leased Premises"), commonly known as 00000 Xxx Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxx, which will consist of approximately Two Hundred Thousand
(200,000) square feet of space. Pursuant to this Article I, Article IV and the
Exhibits, Landlord shall build out One Hundred Fifty Thousand (150,000) square
feet including all Tenant improvements to be constructed by Landlord in
accordance with the terms of this Lease ("Built Out Square Footage") pursuant to
Plans (as defined below) and Specifications (as defined below) and, initially,
shall construct only a vanilla box for the remaining Fifty Thousand (50,000)
square feet ("Vanilla Box Square Footage") pursuant to the Plans and
Specifications. The exact amount of square footage will be determined by
Landlord and Tenant based upon acceptable BOMA standards adopted by the parties.
The site plan is attached as Exhibit "B"; the floor plan is attached as Exhibit
"C" (the "Plans"); and the specifications of the base building and Build Out
Square Footage are attached as Exhibit "D" (the "Specifications"). The legal
description of the real property on which the Leased Premises is located will be
more particularly shown on the Survey, to be provided per Section 1.05 below. A
Commitment for Leasehold Title Policy shall also be provided per Section 1.05
below.
SECTION 1.02. COMPLETION OF IMPROVEMENTS; COMMENCEMENT AND ENDING DAY
OF TERM. The term of this Lease shall be for a period of ten (10) years plus any
Option Period as provided below (the "Term"), commencing upon the issuance of a
temporary certificate of occupancy by the City of Xxxxxx and the date that the
Objections (as defined below) are satisfied or waived by Tenant (the
"Commencement Date"), provided, however, if the Commencement Date shall be other
than on the first of the month, the term shall be adjusted to the first of the
following month and the term of the Lease thereby extended for such fraction of
such month. Prior to the Commencement Date, Landlord and Tenant shall establish
a punch list of items to be completed by Landlord. Landlord shall complete such
punch list items pursuant to a timeline to be established by Landlord and Tenant
at the time the punch list is completed. Tenant shall fully cooperate with
Landlord in all decision processes, and all time sensitive matters must be
addressed by Tenant within a reasonable time period. The parties shall evidence
the Commencement Date by a writing signed by the parties. Notwithstanding any
other language in this Lease to the contrary, either party may terminate this
Lease if Landlord has not obtained site plan approval by November 14, 2003.
SECTION 1.03. OPTION TO EXTEND. If Tenant is not in default (after the
passage of any applicable notice and cure period), Tenant shall have two (2)
options to extend the Term of the Lease for a period ("Option Period") of five
(5) years each from the initial Term. Tenant shall give Landlord written notice
of its intent to extend at least nine (9) months prior to the expiration of the
applicable Term. If Tenant gives Landlord timely written notice to extend the
Lease, the fixed annual rent payable during the option years shall be ninety
(90%) percent of the then prevailing fair market rental. If the parties cannot
agree on the fair market rental within thirty (30) days before the expiration of
the applicable Term, then each party shall appoint one (1) MAI Appraiser to
determine fair market rental. If the two appraisers differ by less than ten
(10%) percent as to fair market rental, then the two fair market rental
determinations shall be averaged for the fair market rental rate. If the two
appraisers differ by more than ten (10%) percent as to fair market rentals, then
the appraisers shall mutually agree upon a third appraiser whose appraisal shall
govern as to the fair market rental rate. This Section 1.03 is not personal to
Tenant and is fully assignable in accordance with the terms of this Lease.
SECTION 1.04. RIGHT OF FIRST REFUSAL. Tenant is hereby given a right of
first refusal to match any bona fide third party offer ("Offer") received by
Landlord to sell the Leased Premises during the Term or any Option Period.
Landlord shall deliver a copy of any Offer to Tenant within three (3) days of
receiving such Offer. Tenant shall have fifteen (15) days from receipt of the
Offer to accept such Offer in writing. Upon such acceptance, Tenant shall close
in accordance with the terms of the Offer. If Tenant does not exercise its right
of first refusal as to an Offer and Landlord does not consummate any sale under
such Offer, this right of first refusal shall continue as to any subsequent
Offer during the Term of this Lease.
Section 1.05. LANDLORD DOCUMENTATION AND LAND CONTROL. Within thirty
(30) days from the date the parties execute this Lease, Landlord shall provide,
at its cost, to Tenant an ALTA Survey of the Leased Premises certified to
Tenant, a leasehold Title Policy in an amount equal to the amount of the
construction costs, with standard exceptions deleted and creditor's rights
exclusion deleted for the benefit of Tenant, a current Environmental Report
certified to Tenant as necessary, and a Baseline Environmental Assessment
certified to Tenant (collectively "Landlord's Documentation"). The foregoing
shall be reasonably acceptable to Tenant. Within thirty (30) days from the date
Tenant receives Landlord's Documentation, Tenant may object to any such document
in writing to Landlord ("Objections"). If Landlord cannot: 1) provide to Tenant
a binding purchase agreement for Landlord's purchase of the Leased Premises, and
2) correct any title issues and/or environmental issues set forth in writing by
Tenant within ten (10) days of Landlord's receipt of Tenant's written notice of
Objection, then the deposit of Thirty Five Thousand ($35,000.00) Dollars given
by Tenant to Landlord, and currently being held in the client trust account at
Xxxxxxxx Law Firm, P.C. ("Deposit"), will be refunded in full to Tenant. In
addition, if Tenant is not reasonably satisfied with the tax abatement as a
result of the Leased Premises being located in a Renaissance Zone, and objects
in writing to Landlord within thirty (30) days from the date Tenant executes
this Lease, then the Deposit will be refunded in full to Tenant. Notwithstanding
the foregoing, if the site plan is approved by the City of Xxxxxx prior to the
termination of the Lease, the date to cure Objections shall be extended to a
date mutually acceptable to the parties.
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Landlord agrees to close on its purchase of the Leased Premises on or before
January 1, 2004. If Landlord has not closed on such purchase on or before
January 1, 2004, then it shall be given a thirty (30) day cure period in which
to resolve any issues preventing it from closing and proceed to closing. If
Landlord does not close on its purchase after the expiration of the thirty (30)
day cure period, then Tenant may terminate this Lease and receive a refund of
the Deposit, and Landlord shall pay to Tenant all costs incurred by Tenant in
conjunction with this Lease, including but not limited to its reasonable
attorneys fees.
ARTICLE II. RENT.
SECTION 2.01. RENT. For the first year of the Term from and after the
Commencement Date, Tenant shall only pay rent on One Hundred Fifty Thousand
(150,000) square feet. From month thirteen (13) through the end of the Term,
Tenant shall pay rent on the entire Two Hundred Thousand (200,000) square feet
as set forth on the Rent Schedule. As a result, the total rent payable during
the Term of this Lease shall be payable as indicated on the attached Rent
Schedule as more particularly described on Exhibit E attached hereto ("Rent
Schedule").
Notwithstanding the Rent Schedule, if Landlord builds out the Vanilla
Box Square Footage in accordance with Article IV of this Lease, then, upon
Landlord completing such Vanilla Box Square Footage and obtaining a temporary
certificate of occupancy for such build out, subject to completion of punch list
items related thereto, for the remainder of the Term of the Lease and any Option
Period exercised, Tenant shall pay the same rent for the Vanilla Box Square
Footage as Tenant is required to pay for the Built Out Square Footage per the
Rent Schedule.
The monthly rent shall be payable by Tenant via electronic transfer on
or before the first day of each month, at the office of Landlord, without any
prior demand therefore or without any deductions or setoff whatsoever except as
otherwise provided herein. Any rent for a partial month shall be prorated and
paid for such partial month based on the number of days in the month.
SECTION 2.02. CAM, TAXES AND INSURANCE. In addition to the rentals set
forth in this Article II, Tenant shall pay those items set forth in Paragraph
3.01 (Taxes), Paragraph 2.05 (Operating Expenses); Paragraph 7.02 (Maintenance
of the Leased Premises) and Paragraph 8.01-8.04 (Insurance). Said additional
rent shall be paid quarterly unless a contrary directive is expressly provided
for in the above noted paragraphs. Wherever in the Lease the Tenant is required
to pay its "pro rata" share of certain costs and expenses, such prorata
percentage shall be one hundred percent (100%).
SECTION 2.03. ADMINISTRATIVE FEE. In addition to the rentals set forth
in this Article II, Tenant shall pay to Landlord an administrative fee of
ten (10%) percent of the total cost of work and/or repairs, which are Tenant's
responsibility under this Lease, that Landlord completes to the Leased Premises
pursuant to Tenant's request. The administrative fee shall
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cover Landlord's expenses for work orders processed through Landlord's property
management office. There is no obligation of Tenant to use Landlord or its
affiliates for such work, and this administrative fee shall not be due as to
Landlord's obligations under this Lease.
SECTION 2.04 COMMON AREAS. Landlord shall also make available common
areas and facilities for the sole benefit of Tenant, including parking areas,
sidewalks, service areas, hallways and landscaped areas ("common areas").
Landlord shall operate, manage, equip, light, insure, repair and maintain the
common areas in good condition and in compliance with first class maintenance
standards. All common areas shall be under the exclusive control and management
of Landlord subject to full use by Tenant. The Leased Premises and common areas
shall be leased exclusively to Tenant subject to Tenant's right to assign or
sublet as provided in this Lease.
SECTION 2.05 OPERATING EXPENSES. Tenant shall also pay to Landlord, as
additional rent, an annual management fee of three percent (3%) of Tenant's base
rent set forth in the Rent Schedule. At the commencement of the Lease and any
anniversary date of the Commencement Date, Landlord shall provide a budget as to
the items described in Section 2.02 hereof. There shall be no increase to such
budgeted items greater than ten (10%) without the prior written approval of
Tenant which approval shall not be unreasonably withheld. Tenant shall consent
to an increase greater than ten percent (10%) in any Lease Year if Landlord
provides written evidence that such increase requiring the approval of Tenant
reflects increases equal to operating expenses for similar buildings in the
Detroit Metropolitan area. If Landlord and Tenant cannot agree as to any such
increases, Landlord and Tenant each will retain a reputable commercial building
management company to indicate what is an appropriate increase. The increase
selected by each such management company will be averaged to establish the
appropriate increase for payment by Tenant.
The term, "Operating Expenses" includes, without limitation, the
following costs and expenses incurred by Landlord with respect to the common
areas: a) all property taxes and assessments, real, personal, general and
special; b) water, sewer, electricity, gas and other sources of power for
heating, lighting, ventilating or air-conditioning, except when separately
billed to Tenant; c) janitorial services for the common areas contracted for by
Landlord, and/or wages, salaries, fringe benefits and applicable taxes on the
employer for services related to the building performed by Landlord's employees;
d) supplies consumed in connection with cleaning and care and maintenance of the
common areas; e) snow removal and exterior grounds care and maintenance; f)
installation and maintenance of exterior and common area signs identifying the
building and its tenants; g) insurance premiums; h) repairs and general
maintenance of the parking lot and parking deck, including striping, but
excluding structural defects; and i) repairs and general maintenance of the
building and common areas, but excluding 1) any alterations to meet the needs of
specific tenants, 2) the roof, 3) the outer walls and 4) the foundation of the
building, which shall be the sole responsibility of Landlord without
reimbursement by Tenant. Notwithstanding anything in this Lease to the contrary,
the items listed on the attached Exhibit F shall be excluded from Operating
Expenses, and such exclusions shall be the sole responsibility of Landlord
without reimbursement by Tenant. Tenant shall be given the right to audit any
operating expenses prior to Tenant's payment. However, such payments must still
be timely
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made. The cost of such audit shall be paid by Tenant. If there is any error in
the Operating Expenses charged, any overpayment shall be credited to amounts due
under this Lease or refunded to Tenant. Any underpayment shall be paid by Tenant
within sixty (60) days of being determined.
Landlord shall furnish Tenant monthly with a written statement of the
Operating Expenses incurred and of the management fees due, and Tenant shall pay
to Landlord such expenses within ten (10) days of the receipt of such statement
from Landlord.
ARTICLE III. TAXES.
SECTION 3.01. TENANT'S TAX OBLIGATION. Tenant agrees to pay all taxes
and assessments which have been or may be levied or assessed by any lawful
authority against the Leased Premises for any calendar year during the Term
hereof. Tenant shall pay such taxes directly to the local assessor's office. Any
tax and/or assessment of any kind or nature presently or hereafter imposed by
the State of Michigan or any political subdivision thereof or any governmental
authority having jurisdiction there over, upon, against or with respect to the
rentals payable by the Tenant in the Leased Premises to Landlord. To the best of
its knowledge, Landlord certifies that the Leased Premises exist within a
"Renaissance Zone" for tax purposes.
Notwithstanding anything herein to the contrary, if an uncapping event
("Uncapping Event") occurs whereby a governmental assessor can increase the
taxable value and/or assessed value of the Leased Premises caused by acts or
omissions of Landlord, or if the acts or omissions of Landlord impair Tenant's
benefits under the Renaissance Zone, Tenant shall not be responsible for any
increase in the ad valorem real estate taxes or assessments caused by such
Uncapping Event which shall be the responsibility of Landlord.
In addition to the foregoing, Tenant at all times shall be responsible
for and shall pay, before delinquency, all taxes levied, assessed or unpaid on
any leasehold interest, any right of occupancy, any investment of Tenant in the
Leased Premises, or any personal property of any kind owned, installed or used
by Tenant, including Tenant's leasehold improvements or on Tenant's right to
occupy the Leased Premises.
ARTICLE IV. CONDITION OF PREMISES, LANDLORD'S WORK AND TENANT'S WORK.
SECTION 4.01. LANDLORD'S WORK. Landlord shall pay for the cost and
expense to construct the Built Out Square Footage according to the mutually
agreed upon Plans and Specifications agreed to by Landlord and Tenant.
Landlord's Work shall be as set forth on Exhibit D, the Base Building
Specifications, ("Landlord's Work"). Other than Landlord's Work, Change Orders
(as defined below) and the repair and maintenance obligations of Landlord under
this Lease, Landlord is not obligated to make any other improvements to the
Leased Premises. Landlord warrants that all Landlord's Work will be fully
warranted as free from all defects in labor or material for one (1) year after
the commencement of the Term or longer to the extent any contractor or supplier
shall provide an extended warranty, and Landlord shall assign
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all third party warranties to Tenant. Landlord agrees to provide Tenant a build
out allowance of Twenty Five ($25.00) Dollars per square foot ("Allowance") for
the build out of the Built Out Square Footage to be paid by Landlord as such
Tenant build out is completed by Landlord. The build out related to the
Allowance must be reasonably acceptable to Tenant. Any portion of the Allowance
not used by Landlord for the build out shall be refunded to Tenant by Landlord.
Landlord must obtain a temporary certificate of occupancy for its build out of
the Built Out Square Footage on or before September 1, 2004 ("Delivery Date").
If Landlord does not obtain such temporary certificate of occupancy on or before
the Delivery Date, then Landlord will be responsible for Tenant's actual
holdover costs until Landlord obtains the temporary certificate of occupancy. If
Landlord does not obtain the temporary certificate of occupancy on or before
October 1, 2004, then Landlord must pay Tenant's actual holdover costs, plus
Tenant shall receive two (2) days of rent abatement for each day after October
1, 2004 that Landlord has not obtained the temporary certificate of occupancy.
Notwithstanding the foregoing, if the reason Landlord has not timely obtained
the temporary certificate of occupancy is due to a Change Order submitted by
Tenant to Landlord, then the deadline by which Landlord must obtain the
temporary certificate of occupancy shall be extended by the length of the
Excused Delay, as defined in Section 22.04, and Landlord shall not have to pay
any Tenant holdover costs or give Tenant a rent abatement during such extension.
The timeline for Landlord's Work shall be attached hereto as Exhibit "J."
Notwithstanding any language in this Lease to the contrary, if Landlord has not
obtained the temporary certificate of occupancy on or before May 15, 2005, then
either party can terminate this Lease. If Tenant terminates this Lease because
Landlord has not obtained the temporary certificate of occupancy on or before
May 15, 2005, then Landlord, and any Guarantor, shall be responsible for
Tenant's actual holdover costs.
If Tenant submits to Landlord a written change order ("Change Order")
changing the original Plans, and Landlord responds to Tenant in writing with a
request for information ("RFI"), then Tenant must respond to Landlord's RFI in
writing within three (3) days of its receipt of such RFI. If Tenant's Change
Order requires Landlord to incur costs in excess of the Allowance, then Tenant
must pay Landlord, in cash, for any such additional cost within thirty (30) days
of the completion of the additional work in the Change Order.
If Tenant submits a written request to Landlord to build out the
Vanilla Box Square Footage at any time during the first five (5) years of the
Term, the Landlord will construct the build out of the Vanilla Box Square
Footage according to mutually agreed upon plans and specifications or Landlord
can pay to Tenant the cost to built out such Vanilla Box Square Footage, and
Tenant can construct such Tenant build out. Landlord agrees to provide a build
out allowance of Twenty Five ($25.00) Dollars ("Vanilla Box Allowance") per
square foot for the build out of the Vanilla Box Square Footage.
If Tenant submits a written request to Landlord to build out the
Vanilla Box Square Footage at any time during years six (6) through ten (10) of
the Term, the Landlord will construct the build out of the Vanilla Box Square
Footage according to mutually agreed upon plans and specifications, or Tenant
can construct such Tenant build out subject to reimbursement as provided herein,
and Tenant shall pay rent as set forth in Section 2.01. The Vanilla Box
Allowance will be paid by Landlord directly for costs incurred by Landlord or to
Tenant in years six (6) through ten (10) as follows: (i) in year six (6) the
Vanilla Box Allowance will be eighty
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percent (80%) of the Vanilla Box Allowance; (ii) in year seven (7), the Vanilla
Box Allowance will be sixty percent (60%) of the Vanilla Box Allowance; (iii) in
year eight (8), the Vanilla Box Allowance will be forty percent (40%) of the
Vanilla Box Allowance; (iv) in year nine (9) the Vanilla Box Allowance will be
twenty percent (20%) of the Vanilla Box Allowance; and (v) in year ten (10),
there shall be no Vanilla Box Allowance. The same formula will be applied as to
the Vanilla Box Allowance during any Option Period.
SECTION 4.02. TENANT'S WORK. Tenant, at its sole cost and expense shall
(i) furnish and install trade fixtures, (ii) furnish and install all phone and
data cabling, and (iii) furnish and install its exterior sign, which shall be
subject to Landlord's prior written approval. Tenant agrees to fully cooperate
with Landlord relative to the design of and selections for each individual suite
in the Leased Premises. Tenant covenants to indemnify Landlord and/or its
agents, and hold it harmless from and against any and all claims, actions,
damages, liability and expenses, including reasonable attorneys' fees, in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Leased Premises or any part
thereof arising from or out of any work performed or undertaken by Tenant.
All work to be done by Tenant as Tenant's Work, or any subsequent
alterations, repairs and/or replacements performed by Tenant, shall be in
accordance with the following:
A. All work done by Tenant shall be pursuant to and in accordance with
all necessary licenses and permits which Tenant shall obtain at its sole
expense. Such work shall conform to all applicable statutes, ordinances,
regulations and codes and to the requirements of all other regulatory
authorities. Tenant shall protect Landlord's and/or other adjoining premises
from construction damage and Tenant shall be liable therefore. All contractors
or subcontractors used by Tenant shall be bondable, licensed contractors capable
of performing quality workmanship. Tenant shall use first class materials in the
completion of Tenant's Work. At least five (5) days prior to the commencement of
Tenant's work, Tenant shall provide Landlord, by certified or registered mail,
with the name and address of Tenant's general, mechanical and electrical
contractors.
B. Construction insurance. Tenant shall secure, pay for and maintain or
cause its contractor(s) to secure, pay for and maintain during Tenant's work,
the following insurance in the following amounts, which shall be endorsed in all
policies to include Landlord and its beneficiaries and their employees and
agents as insured parties, and which shall provide in all policies that Landlord
shall be given ten (10) days prior written notice of any alteration or
termination of coverage, in the amounts as set forth below. Certificates of such
insurance shall be furnished Landlord at least five (5) days prior to
commencement of Tenant's construction.
(i) Worker's Compensation, Employer's Liability Insurance with limits
of not less than $100,000.00 and as required by State law and any insurance
required by any Employee Benefit Acts or other statutes applicable where the
work is to be performed as will protect the contractor and subcontractors from
any and all liability under the aforementioned Acts.
(ii) Comprehensive General Liability Insurance (including Contractor's
Protective Liability) in an amount not less than $1,000,000.00 per person and
$2,000,000.00 per occurrence
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whether involving personal injury liability (or death resulting therefrom) or
property damage liability or a combination thereof with a minimum aggregate
limit of $1,000,000.00. Such insurance shall provide for explosion and collapse
coverage and contractual liability coverage and shall insure the general
contractor and/or subcontractors against any and all claims for personal injury,
including death resulting therefrom, and damage to the property of others and
arising from his operations under the Contract and whether such operations are
performed by the general contractor, subcontractors or any of their
subcontractors, or by anyone directly or indirectly employed by any of them.
(iii) Tenant's Builders Risk Insurance. Tenant shall cause its
contractor to provide a complete Value Form "All Physical Loss" Builder's Risk
coverage on its work in the premises as it relates to the building within which
the premises is located, naming the interests of the Landlord, its general
contractor and all subcontractors, as their respective interest may appear,
within a radius of 100 feet of the premises.
C. Mechanics' Liens. Tenant shall promptly pay all sums of money in
respect of any labor, services, materials, supplies or equipment furnished or
alleged to have been furnished to Tenant in, at or about the premises, or
furnished to Tenant's agents, employees, contractors or subcontractors, which
may be secured by any mechanics, materialmen, suppliers or other type of lien
against the premises or the Landlord's interest therein. In the event any such
or similar lien shall be filed, Tenant shall within twenty-four (24) hours of
receipt thereof give notice to Landlord of such lien, and Tenant shall, within
thirty (30) days after receiving notice of the filing of the lien, discharge
such lien by payment of the amount due the lien claimant. However, Tenant may,
in good faith, contest such lien provided that within such thirty (30) day
period Tenant provides Landlord with adequate security in amounts acceptable to
the parties.
Failure of Tenant to discharge the lien, or if contested to provide
such bond, shall constitute a default under this Lease and in addition to any
other right or remedy of Landlord, Landlord may but shall not be obligated to
discharge the same of record by paying the amount claimed to be due, and the
amount so paid by Landlord and all costs and expenses incurred by Landlord
therewith, including reasonable attorneys' fees.
ARTICLE V. CONDUCT OF BUSINESS BY TENANT.
SECTION 5.01. USE OF PREMISES.
A. Tenant shall use and occupy the Leased Premises during the Term of
this Lease solely for the purposes of conducting any business allowed under
state and federal laws. If any governmental license or permit shall be required
for the proper and lawful conduct of Tenant's business or other activity carried
on in the Leased Premises or if a failure to procure such a license or permit
might or would, in any way, affect the Landlord or the Leased Premises, then
Tenant, at Tenant's expense, shall duly procure and thereafter maintain such
license or permit and submit the same to inspection by Landlord. Tenant, at
Tenant's expense, shall, at all times, comply with the requirements of each such
license or permit.
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B. Except as otherwise disclosed in the environmental report provided
by Landlord to Tenant, Landlord represents and warrants to Tenant that the
Leased Premises are not now and have never been used for the purpose of
disposing, refining, generating, manufacturing, producing, storing, handling,
treating, transferring, releasing, processing or transporting any hazardous
waste or hazardous substance, as such terms are defined in the Resource
Conservation and Recovery Act of 1976, as amended, the Comprehensive
Environmental Recovery Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act, as amended, or any other federal, state or
local environmental laws, regulations, codes or ordinance, and that no
pollutants, contaminants or hazardous or toxic wastes, substances or materials
are present (except those which occur solely due to their natural presence in
the Leased Premises or in the ordinary course of business), in, on or under the
Leased Premises.
C. Landlord hereby agrees to indemnify, defend and hold Tenant harmless
from any and all claims, causes of action, liabilities, damages, costs and
expenses arising from the location of any environmental contamination to or from
the Leased Premises or the violation of any environmental laws existing prior to
the Commencement Date. Tenant agrees to indemnify, defend and hold Landlord
harmless for any environmental contamination caused by the Tenant which violates
applicable environmental laws.
SECTION 5.02. OPERATION OF BUSINESS. Tenant shall promptly comply with
all laws and ordinances and lawful orders and regulations affecting the Leased
Premises and the cleanliness, safety, occupancy and use of the same. Tenant
shall not use or permit the use of any portion of the Leased Premises for any
unlawful purposes. Landlord, at the sole cost and expense of Tenant, may direct
the use of all pest extermination at such intervals as Landlord may require.
Landlord represents and warrants that the Leased Premises, as built out in
accordance with the terms of this Lease, will comply with all state and federal
laws and ordinances, including Americans with Disabilities Act and environmental
laws.
SECTION 5.03. CARE OF PREMISES. Tenant shall keep the Leased Premises
orderly, neat, safe and clean and free from rubbish, and dirt at all times and
shall store all trash and garbage within the Leased Premises and arrange for the
regular pickup of such trash and garbage at Tenant's expense. Tenant shall not
burn any trash or garbage at any time in or about the Leased Premises. In the
event Tenant fails to keep the Leased Premises in the condition called for
above, Landlord may enter upon the Leased Premises and have all rubbish, dirt,
and garbage removed and the adjacent sidewalks cleaned, in which event Tenant
agrees to pay all charges incurred by Landlord therefore. Said charges shall be
paid to the Landlord by the Tenant as soon as a xxxx is presented to it and the
Landlord shall have the same remedies as is provided in Article XV of this Lease
in the event of Tenant's failure to pay said charges within ten (10) days after
being billed therefore.
ARTICLE VI. ALTERATIONS AND SIGNS.
SECTION 6.01. INSTALLATION BY TENANT. Other than Tenant's Work, Tenant
shall not make or cause to be made any alterations, additions, or improvements
at a cost in excess of Fifty Thousand ($50,000.00) Dollars, per alteration,
addition or improvement, to the
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Leased Premises or any part thereof, or install or cause to be installed any
exterior signs, floor covering, interior or exterior lighting, plumbing
fixtures, shades, canopies or awnings or make any changes to the mechanical,
electrical or sprinkler systems without the prior written approval of Landlord
which approval will not be unreasonably withheld or delayed. Tenant shall
present to the Landlord plans and specifications for such work at the time
approval is sought. Any damage caused to the Leased Premises or the facilities
serving the same, by virtue of any unauthorized alteration, addition or
improvement installed by Tenant shall be the responsibility of Tenant and Tenant
shall be liable for any necessary repairs. Any alterations made by Tenant shall
be done in compliance with Section 4.03 hereof. Tenant covenants to indemnify
Landlord and/or its agents, and hold it harmless from and against any and all
claims, actions, damages, liability and expenses, including reasonable
attorneys' fees, in connection with loss of life, personal injury and/or damage
to property arising from or out of any occurrence in, upon or at the Leased
Premises or any part thereof arising from or out of any alterations, additions
or improvements made by Tenant.
SECTION 6.02. REMOVAL BY TENANT. All alterations, additions and
improvements made by Tenant shall be deemed to have attached to the Leasehold
and to have become the property of Landlord upon such attachment, and upon
expiration of this Lease or any renewal term, the Tenant shall not remove any of
such alterations, decorations, additions and improvements, except trade fixtures
installed by Tenant and any of Tenant's work items which are not permanently
attached to the Leased Premises
SECTION 6.03. SIGNS. Landlord agrees that Tenant shall have the
exclusive right for building and/or monument signage, however, Tenant will not
place or cause to be placed or maintained any sign or advertising matter of any
kind anywhere in or on the Leased Premises without Landlord's prior written
approval. Landlord's consent under this paragraph 6.03 shall not be unreasonably
withheld so long as Tenant satisfies any and all State and Municipal codes and
Landlord has approved in writing the location, size, color and character of the
sign. Tenant further agrees to maintain in good condition and repair, at all
times, any such sign or advertising matter of any kind which has been approved
by Landlord for use by Tenant. In no event shall Tenant be permitted to erect a
sign on the roof of the Leased Premises.
ARTICLE VII. MAINTENANCE OF LEASED PREMISES.
SECTION 7.01. LANDLORD'S OBLIGATIONS FOR MAINTENANCE. Except as may be
required under this Article VII, as well as, Articles I, II, XIII and XIV
hereof, Landlord shall have no obligation during the Term of this Lease, or
Option Period as applicable, to keep, maintain and/or repair the Leased Premises
or any part thereof.
During the entire Term, or Option Period as applicable, Landlord, at
Tenant's sole cost, shall maintain with a reputable service maintenance company
a contract to provide service on all HVAC systems, wherein all manufacturers'
service or maintenance schedules, as well as, written service records, shall be
timely and properly kept. Landlord agrees to allow Tenant the benefit of any
HVAC warranties held by Landlord. If any compressors on the Leased Premises
require
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repair or replacement of any parts, and there are no warranties to cover such
expense, then Tenant shall be responsible for a portion of such cost as
determined by the following formula:
# of yrs left in the Term (or Option Period) / Useful life of compressor at time
of repair * Cost of repair
Landlord shall be responsible for the remaining potion of the total cost of the
repair or replacement. The useful life of the compressor shall be determined in
accordance with generally accepted accounting principles ("GAAP"). If the
parties cannot agree on the useful life of the compressor in accordance with
GAAP, then each party shall appoint one independent accountant to determine the
useful life of the compressor. If the two accountants differ by less than ten
(10%) percent as to the useful life, then the two determinations shall be
averaged to determine the useful life. If the two accountants differ by more
than ten (10%) percent as to the useful life, then the accountants shall
mutually agree upon a third accountant whose useful life determination shall
govern.
SECTION 7.02. TENANT'S OBLIGATIONS FOR MAINTENANCE.
A. Other than the repair and replacement of the roof, four (4) outer
walls, and structural components of the building, which shall be performed by
Landlord without reimbursement by Tenant, Tenant shall, at its sole cost and
expense, keep and maintain in good order and condition, and repair and replace
(including replacement of parts and equipment if necessary) the Leased Premises.
If Tenant requests that Landlord's property manager complete any such repairs,
then the property manager will initiate such repairs on Tenant's behalf and bid
out such work on a competitive basis. The plumbing and sewage facilities shall
not be used for any other purpose than that for which they are constructed, and
no foreign substance of any kind shall be introduced therein. Tenant hereby
agrees to be responsible for any expenses incurred in connection with any
breakage, stoppage or damage resulting from a violation of this provision by
Tenant, its agents, employees, invitees, licensees or contractors.
B. Tenant shall keep and maintain the Leased Premises in a clean,
sanitary and safe condition and Tenant shall comply with all requirements of
law, ordinance and otherwise, affecting said Leased Premises in all material
respects, including but not limited to all rules, regulations, laws or
ordinances promulgated by any governmental agency having jurisdiction over the
Leased Premises relative to the use, storage, handling, disposal or treatment of
hazardous materials as that term is defined in the Comprehensive Environmental
Response, Compensation and Liability Act, as amended and whether or not
resulting from acts or omissions of Tenant during the Term hereof or any other
person or entity. If Tenant refuses or neglects to commence or complete repairs
required by subparagraphs (A) and (B) hereof promptly and adequately, Landlord
may, but shall not be required to do so, make all or any part of said repairs
and Tenant shall pay the cost thereof to Landlord within thirty (30) days of
demand, non-payment of which shall entitle Landlord to exercise any remedy
available to it in the event of the non-payment by Tenant of rental or any other
charge due to Landlord under this Lease. At the time of the expiration of the
tenancy created herein, Tenant shall surrender the Leased Premises in good
condition, reasonable wear and tear, loss by fire or other unavoidable casualty
excepted.
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C. Tenant shall keep the Leased Premises free from any and all liens
arising out of work performed, materials furnished or obligations incurred by or
for Tenant, and agrees to bond against or discharge any construction lien within
thirty (30) days after written request therefore by Landlord. Tenant shall
reimburse Landlord for any and all costs and expenses which may be incurred by
Landlord by reason of the filing of any such lien and/or the removal of same,
such reimbursement to be made within thirty (30) days after receipt by Tenant
from Landlord of a statement setting forth the amount of such costs and
expenses. The failure of Tenant to pay any such amount to Landlord within said
thirty (30) day period shall carry with it the same consequences as failure to
pay any installment of rent.
D. Landlord shall install such fire extinguishers on in the Leased
Premises and such first extinguishers shall be maintained by Landlord. The cost
of such maintenance shall be paid by Tenant.
ARTICLE VIII. INSURANCE AND INDEMNITY.
SECTION 8.01. LIABILITY INSURANCE. Tenant shall, during the entire Term
hereof, keep in full force and effect a policy of public liability and property
damage insurance with respect to the Leased Premises, and the business operated
by Tenant and any subtenants of Tenant in the Leased Premises, including steam
boiler insurance if applicable, in which the limits of public liability shall be
not less than Two Million Dollars ($2,000,000.00) per occurrence, and in which
the limit of property damage liability shall not be less than One Million
Dollars ($1,000,000.00). The policy shall name Landlord, any other parties in
interest designated by Landlord, and Tenant as insured, and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving the Landlord thirty (30) days prior written notice. Such insurance may be
furnished by Tenant under any blanket policy carried by it or under a separate
policy therefore. The insurance shall be with an insurance company approved by
Landlord and a copy of the paid-up policy evidencing such insurance or a
certificate of insurer certifying to the issuance of such policy shall be
delivered to Landlord prior to Tenant's receipt of a certificate of occupancy,
and upon renewals not less than thirty (30) days prior to the expiration of such
coverage.
SECTION 8.02. PROPERTY INSURANCE.
A. Landlord agrees, during the Term hereof, to carry (i) insurance
against fire, vandalism, malicious mischief and such other perils as are from
time to time included in a standard extended coverage endorsement and, at
Landlord's option, special extended coverage endorsements, insuring the Leased
Premises and common areas and all improvements thereto in an amount determined
solely by Landlord, but not less than one hundred percent (100%) of the full
replacement cost, if available, and with or without deductible, at the option of
Landlord; and (ii) rental interruption insurance, which insurance may be carried
in amounts equal to Tenant's total rental obligation for twelve (12) full months
under this Lease, plus the total of the premiums for such twelve (12) month
period. Tenant agrees to pay quarterly to Landlord, as additional rent the
premiums, such payment to be made within thirty (30) days after receipt of a
quarterly
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written statement from Landlord setting forth such cost. "Lease Years" shall be
fiscal years consisting of twelve (12) consecutive monthly periods, commencing
on the Commencement Date of this Lease.
B. Tenant agrees to carry, at its expense, insurance against fire,
vandalism, malicious mischief, and such other perils as are from time to time
included in a standard extended coverage endorsement, insuring Tenant's
merchandise, trade fixtures, furnishings, equipment and all other items of
personal property of Tenant located on or within the Leased Premises, in an
amount equal to not less than one hundred percent (100%) of the actual
replacement cost thereof and to furnish Landlord with a certificate evidencing
such coverage.
C. Tenant shall not carry any stock of goods or do anything in or about
the Leased Premises which will in anyway tend to increase the insurance rates on
said premises and/or the building of which they are a part. If Tenant installs
any electrical equipment that overloads the lines in the Leased Premises, Tenant
shall, at its own expense, make whatever changes are necessary to comply with
the requirements of the insurance underwriters and governmental authorities
having jurisdiction.
SECTION 8.03. MUTUAL COVENANT TO HOLD HARMLESS. Tenant covenants to
indemnify and defend Landlord and/or its agents, and hold it harmless (except
for loss or damage resulting from the negligence of Landlord, its agents or
employees) from and against any and all claims, actions, damages, liability and
expense, including attorneys' fees, in connection with loss of life, personal
injury and/or damage to property arising from or out of any occurrence in, upon
or at the Leased Premises or the occupancy or use by Tenant of the Leased
Premises or any part thereof, or arising from or out of Tenant's failure to
comply with Section 7.02 hereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, customers or
licensees.
Landlord covenants to indemnify and defend Tenant and/or its agents,
and hold it harmless (except for loss or damage resulting from the negligence of
Tenant, its agents or employees) from and against any and all claims, actions,
damages, liability and expense, including attorneys' fees, in connection with
loss of life, personal injury and/or damage to property occasioned wholly or in
part by any act or omission of Landlord, its agents, contractors, employees,
servants, customers or licensees.
For the purpose hereof, the Leased Premises shall include the service
areas, sidewalks, the parking lot and all improvements thereon, other areas
adjoining the same and the loading platform area allocated to the use of Tenant.
In case any party shall, without fault on its part, be made a party to any
litigation commenced by or against such party because of acts or omissions of
the other party, then the other party responsible shall protect and hold the
innocent party harmless and shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by such party in connection with such
litigation. In the case of litigation between the parties, the non-prevailing
party shall also pay all costs, expenses and reasonable attorneys' fees that may
be incurred by the prevailing party.
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SECTION 8.04. ADJUSTMENT. Not more frequently than annually, if, in the
opinion of Landlord's mortgage lender or insurance broker, the amount of such
insurance coverage at the time is not adequate, Tenant shall increase the
insurance coverage as required by such lender or insurance broker.
ARTICLE IX. UTILITY CHARGES.
SECTION 9.01. UTILITY CHARGES. Tenant shall be solely responsible for
and promptly pay all charges for water, gas, heat, electricity, sewer and any
other utility used upon or furnished to the Leased Premises. Tenant may keep a
back up generator on the Leased Premises, which shall be the sole property of
Tenant and may be removed by Tenant upon termination of the Lease.
SECTION 9.02. INTERRUPTION. Landlord shall not be liable in the event
of any interruption in the supply of any utilities, including without limitation
any heating and air conditioning, nor shall any such interruption constitute any
ground for any abatement of any of the rents reserved hereunder, unless such
interruption continues for more than forty eight (48) hours, in which case such
rent will be abated until corrected. Tenant agrees that it will not install any
equipment which will exceed or overload the capacity of any utility facilities
serving the Premises and that if any equipment installed by Tenant shall require
additional utility facilities, the same shall be installed at Tenant's expense
in accordance with the plans and specifications to be approved in writing by
Landlord.
ARTICLE X. OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION.
SECTION 10.01. OFF-SET STATEMENT. Each party agrees within ten (10)
days after written request therefore by the other party to execute in recordable
form and deliver a statement, in writing, certifying (a) that this Lease is in
full force and effect; (b) the date of commencement of the Term of this Lease;
(c) that rent is paid currently without any off-set or defense thereto; (d) the
amount of rent, if any, paid in advance; (e) that there are no uncured defaults
by Landlord or stating those claims by Tenant, provided that, in fact, such
facts are accurate and ascertainable and (f) such other matters as either party
may require or Landlord's mortgagee may require.
SECTION 10.02. ATTORNMENT. 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 exercise of the power of sale under, any
mortgage made by Landlord covering the Leased Premises, Tenant hereby attorns
to, and covenants and agrees to execute an instrument, upon ten (10) days
advance written notice reasonably satisfactory to the new owner whereby Tenant
attorns to such successor in interest and recognizes such successor as the
Landlord under this Lease.
SECTION 10.03. SUBORDINATION. Tenant agrees that this Lease shall, at
the request of the Landlord, be subordinate to any first mortgages or deeds of
trust that may hereafter be placed upon said Leased Premises and to any and all
advances to be made thereunder, and to
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the interest thereon, and all renewals, replacements and extensions thereof,
provided the mortgagee or trustee named in said mortgages or trust deeds shall
agree to recognize the Lease of Tenant in the event of foreclosure if Tenant is
not in default. Tenant also agrees that any mortgagee or trustee may elect to
have this Lease a prior lien to its mortgage or deed of trust, and in the event
of such election and upon notification by such mortgagee or trustee to Tenant to
that effect, this Lease shall be deemed prior in lien to the said mortgage or
deed of trust, whether this Lease is dated prior to or subsequent to the date of
said mortgage or deed of trust. Tenant agrees that, upon ten (10) days advance
written request of Landlord, any mortgagee or any trustee, Tenant shall execute
whatever instruments may be required to carry out the intent of this Section.
Notwithstanding anything herein to the contrary, Landlord shall provide from its
lender a subordination, non-disturbance and attornment agreement acceptable to
Tenant, ensuring Tenant's possession following a default under Landlord's
mortgage so long as Tenant is not in default under this Lease.
SECTION 10.04. REMEDIES. Failure of the Tenant to execute any statement
or instruments necessary or desirable to effectuate the foregoing provisions of
this Article, within thirty (30) days upon written request so to do by Landlord,
shall constitute a breach of this Lease and the Landlord shall have the right by
not less than thirty (30) days prior written notice to Tenant to execute such
instrument on behalf of Tenant as its sole remedy.
ARTICLE XI. ASSIGNMENT AND SUBLETTING.
SECTION 11.01 CONSENT REQUIRED. Except as otherwise provided herein,
Tenant agrees not to assign or in any manner transfer this Lease or any estate
or interest therein without the prior written consent of Landlord and not to
sublet the Leased Premises or any part or parts thereof or allow anyone to come
in with, through or under it without like consent. Despite the foregoing,
Landlord shall not withhold its consent to assign or sublet to assignee or
subtenant that has a net worth equal to or greater than the net worth of Tenant.
Consent by Landlord to one or more assignment(s) of this Lease or to one or more
subletting(s) of said Leased Premises shall not operate to exhaust Landlord's
rights under this Article. In the event that Tenant, with the previous consent
of Landlord, does assign or in any manner transfer this Lease or any estate or
interest therein, Tenant shall be released from any of its obligations under
this Lease. The sale, issuance, or transfer of any voting capital stock of
Tenant (if Tenant is a non-public corporation), which results in a change in the
managing control of Tenant, shall be deemed to be an assignment of this Lease
within the meaning of this Section. Notwithstanding the foregoing, Landlord's
consent will not be required for (i) an assignee, successor or occupant who is a
subsidiary, affiliate, or merger partner of Tenant as long as the financial
status of such entity is equal to or stronger than Tenant's financial status or
(ii) the sale of assets to a buyer whose financial status is equal to or
stronger than Tenant's financial status or (iii) the issuance of stock or
ownership interests in connection with any recapitalization or public offering
by Tenant or its affiliates.
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ARTICLE XII. WASTE.
SECTION 12.01. WASTE OR NUISANCE. Tenant shall not commit or suffer to
be committed any waste upon the Leased Premises or any nuisance or other act or
thing which may disturb the quiet enjoyment of any other adjoining property
owner. Tenant shall not use or permit to be used any medium that might
constitute a nuisance, such as loud speakers, sound amplifiers, phonographs,
radios, televisions, or any other sound producing device which will carry sound
outside the Leased Premises.
ARTICLE XIII. DESTRUCTION OF LEASED PREMISES.
SECTION 13.01. RECONSTRUCTION OF DAMAGED PREMISES. In the event the
Leased Premises shall be partially or totally destroyed by fire or other
casualty, unless Landlord shall elect not to rebuild as hereinafter provided, a
just and proportionate part of the fixed minimum rental and all other charges
shall be abated until the Leased Premises are repaired. The obligation of
Landlord hereunder shall be limited to reconstructing the Leased Premises in
accordance with the initial Plans and Specifications for the construction of the
Leased Premises and Tenant build outs under this Lease. In no event shall
Landlord be required to repair or replace Tenant's merchandise, trade fixtures,
furnishings or equipment. Landlord may elect either to repair or rebuild the
Leased Premises, or to terminate this Lease by giving written notice to Tenant
of its election to so terminate, such notice to be given within sixty (60) days
after the occurrence of such damage or destruction. If Landlord elects to repair
or rebuild the Leased Premises as herein provided, Tenant shall repair or
replace its merchandise, trade fixtures, furnishings and equipment in a manner
and to at least a condition equal to that prior to its damage or destruction.
Nothing herein shall be interpreted as requiring the Landlord to rebuild and
restore the premises under any circumstances. Further, the decision of the
Landlord shall be subject to the decision of the holders of the mortgage or
mortgages on the Leased Premises which are superior to this Lease. In any event,
should Landlord elect to rebuild and restore, its obligation to do so shall be
limited to the amount of insurance proceeds which it receives in connection
therewith. Notwithstanding anything herein to the contrary, within the first
seven (7) years of the Term, if destruction to the Leased Premises is less than
seventy-five percent (75%) of the total space of the Leased Premises, Landlord
shall rebuild to the extent of available insurance proceeds so long as Tenant is
not in default under this Lease after the expiration of any notice and cure
periods. Landlord also agrees to cause its lender to agree to these provisions
in connection with Landlord's financing of the Leased Premises.
SECTION 13.02. WAIVER OF SUBROGATION. Each party hereto does hereby
remise, release and discharge the other party hereto and any officer, agent,
employee or representative of such party, of and from any liability whatsoever
hereafter arising from loss, damage or injury caused by fire or other casualty
for which insurance permitting waiver of liability and containing a waiver of
subrogation is carried by the injured party at the time of such loss, damage or
injury to the extent of any recovery by the injured party under such insurance.
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ARTICLE XIV. EMINENT DOMAIN.
SECTION 14.01. TOTAL CONDEMNATION OF LEASED PREMISES. If the whole of
the Leased Premises shall be taken by any public authority under the power of
eminent domain, then the Term of this Lease shall cease as of the day possession
shall be taken by such public authority and the rent shall be paid up to that
day with a proportionate refund by Landlord of such rent as may have been paid
in advance for a period subsequent to the date of the taking.
SECTION 14.02. PARTIAL CONDEMNATION. If any part of the Leased
Premises, but less than the whole, shall be taken under eminent domain, then
Landlord shall have the right to terminate this Lease and declare the same null
and void by written notice of such intention to the Tenant within ten (10) days
after such taking. In the event Landlord does not exercise said right of
termination the Lease Term shall cease only on the part so taken as of the day
possession shall be taken by such public authority and Tenant shall pay rent up
to that day, with appropriate refund by Landlord of such rent as may have been
paid in advance for a period subsequent to the date of the taking, and
thereafter all the terms herein provided shall continue in effect, except that
the fixed minimum annual rental shall be reduced in proportion to the amount of
the Leased Premises taken and Landlord shall, at its own cost and expense, make
all the necessary repairs or alterations to the Leased Premises as originally
installed by Landlord, so as to constitute the remaining Leased Premises a
complete architectural unit.
SECTION 14.03. LANDLORD'S AND TENANT'S DAMAGES. All damages awarded for
such taking under the power of eminent domain, whether for the whole or a part
of the Leased Premises, shall belong to and be the property of Landlord whether
such damages shall be awarded as compensation for diminution in value to the
leasehold or to the fee of the Leased Premises; provided, however, that Landlord
shall not be entitled to the award made for depreciation to, or the cost of
removal of Tenant's stock and fixtures. Tenant shall be entitled to any award
regarding its leasehold interest that is made in conjunction with condemnation
of the Leased Premises.
ARTICLE XV. DEFAULT OF THE TENANT.
SECTION 15.01. RIGHT TO TERMINATE. In the event of any failure of
Tenant to pay any rental or other charges due hereunder within ten (10) days of
when due, or any failure to perform any other of the terms, conditions or
covenants of this Lease to be observed or performed by Tenant for more than
thirty (30) days (or such additional time as is necessary to effectuate a cure
if Tenant has diligently prosecuted such cure) after written notice of such
default shall have been received by Tenant, or if Tenant shall abandon the
Leased Premises, or permit this Lease to be taken under any writ of execution
which is not stayed within thirty (30) days of its issuance, then the Landlord,
besides other rights or remedies it may have, shall have the right to declare
this Lease terminated and the term ended and/or shall have the immediate right
of termination and may remove all persons and property from the Leased Premises
and such property may be removed and stored in a public warehouse or elsewhere
at the cost of, and for the account of Tenant, without evidence of notice or
resort to legal process and without being
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deemed guilty of trespass, or becoming liable for any loss or damage which may
be occasioned thereby.
SECTION 15.02. RIGHT TO RELET. Should Landlord elect to terminate, as
herein provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided by law, it may either terminate this Lease or it
may, from time to time, without terminating this Lease, make such alterations
and repairs as may be necessary in order to relet the Leased Premises, and relet
said Leased Premises or any part thereof for such term or terms (which may be
for a term extending beyond the Term of this Lease) and at such rental and upon
such other terms and conditions as is reasonable under the circumstances. Upon
each such reletting, all rent and other sums received by Landlord from such
reletting shall be applied, first, to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, including reasonable brokerage fees and
attorneys' fees and of costs of such alterations and repairs; third, to the
payment of rent and other charges due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rent as the same
may become due and payable hereunder. If such rental and other sums received
from such reletting during any month is less than that to be paid during that
month by Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. Notwithstanding any such
reletting without termination, Landlord may at any time hereafter elect to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant its actual damages it may incur by reasons of
such breach after mitigating its damages, including the cost of recovering the
Leased Premises, reasonable attorneys' fees, and including the worth at the time
of such termination of the excess, if any, of the amount of rent and charges
equivalent to rent reserved in this Lease for the remainder of the stated term
over the then reasonable rental value of the Leased Premises for the remainder
of the stated term, all of which amounts shall be immediately due and payable
from Tenant to Landlord. In determining the rent which would be payable by
Tenant hereunder, subsequent to default, the annual rent for each year of the
unexpired term shall be equal to the average annual minimum rent paid by Tenant
from the commencement of the term to the time of default, or during the
preceding three (3) full calendar years, whichever period is shorter. Landlord
agrees to use its best efforts to mitigate Tenant's damages under this Lease.
SECTION 15.03. LEGAL EXPENSES. In case suit shall be brought to enforce
or interpret any part of this Lease, the prevailing party shall be entitled to
recover all expenses incurred thereunder, including actual attorneys' fees.
SECTION 15.04. WAIVER OF JURY TRIAL AND COUNTERCLAIM. The parties
hereto shall and they hereby do waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Leased
Premises, and/or any claim of injury or damage. This shall not, however, be
construed as a waiver of Tenant's right to assert such claims in any separate
action or actions brought by the Tenant.
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ARTICLE XVI. BANKRUPTCY OR INSOLVENCY.
SECTION 16.01. CONDITIONS TO THE ASSUMPTION AND ASSIGNMENT OF THE LEASE
UNDER CHAPTER 7 OF THE BANKRUPTCY ACT. In the event that Tenant shall become a
Debtor under Chapter 7 of the Bankruptcy Code, and the Trustee or Tenant shall
elect to assume this Lease for the purpose of assigning the same or otherwise,
such election and assignment may only be made if all of the terms and conditions
to Section 16.02 and Section 16.04 hereof are satisfied. If such Trustee shall
fail to elect to assume this Lease within sixty (60) days after the filing of
the Petition, this Lease shall be deemed to have been rejected. Landlord shall
be thereupon immediately entitled to possession of the Leased Premises without
further obligation to Tenant or Trustee, and this Lease shall be canceled, but
Landlord's right to be compensated for damages in such liquidation proceeding
shall survive.
SECTION 16.02. CONDITIONS TO THE ASSUMPTION OF THE LEASE IN BANKRUPTCY
PROCEEDINGS.
A. In the event that a Petition for reorganization or adjustment of
debts is filed concerning Tenant under Chapter 11 or 13 of the Bankruptcy Code,
or a proceeding is filed under Chapter 7 under the Bankruptcy Code and is
transferred to Chapter 11 or 13, the Trustee or the Tenant, as
Debtor-In-Possession, must elect to assume the Lease within sixty (60) days from
the date of the filing of the Petition under Chapter 11 or 13 or the date of the
transfer of a Chapter 7 proceeding to a Chapter 11 or 13 proceeding.
Notwithstanding the foregoing, it is expressly understood and agreed that no
election to assume under the foregoing provisions of this paragraph shall be
effective unless each of the following conditions (which Landlord and Tenant
acknowledge are commercial reasonable in the context of a bankruptcy proceeding
of Tenant) have been satisfied and Landlord has acknowledged in writing:
1. The Trustee or the Debtor-In-Possession has cured, or has provided
Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption, the Trustee
or Debtor-In-Possession will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption, the
Trustee or Debtor-In-Possession will cure all non-monetary defaults under this
Lease.
2. The Trustee or the Debtor-In-Possession has compensated, or has
provided to Landlord adequate assurance (as defined below) that within ten (10)
days from the date of assumption, Landlord will be compensated for any pecuniary
loss incurred by Landlord arising from the default of the Tenant, the Trustee,
or the Debtor-In-Possession as recited in Landlord's written statement of
pecuniary loss sent to the Trustee or Debtor-In-Possession.
3. The Trustee or Debtor-In-Possession has compensated, or has provided
to Landlord adequate assurance of the future performance of each of Tenant's,
Trustee's, or Debtor-In-Possession's obligations under the Lease, provided,
however, that:
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(a) The Trustee or Debtor-In-Possession shall also deposit with
Landlord, as security for the timely payment of rent, an amount equal to three
(3) months rent (as adjusted pursuant to Section 16.03(c) below) and other
monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, Trustee or
Debtor-In-Possession shall also pay in advance, on the date minimum rent is
payable 1/12th of Tenant's annual obligations under this Lease for maintenance,
real estate taxes, insurance and similar charges.
(c) The obligations imposed upon the Trustees or Debtor-In-Possession
shall continue with respect to Tenant or any assignee of the Lease after the
completion of bankruptcy proceedings.
4. The assumption of the Lease will not breach any provision in any
other lease, mortgage, financing agreement or other agreement by which Landlord
is bound relating to the Leased Premises; or
(a) For purposes of this section, Landlord and Tenant acknowledge that,
in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate
assurance" shall mean:
1. The Trustee or the Debtor-In-Possession has and will
continue to have sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to assure Landlord that the Trustee or
Debtor-In-Possession will have sufficient funds to fulfill the obligations of
Tenant under this Lease, and to keep the Leased Premises stocked with
merchandise and properly staffed with sufficient employees to conduct a
fully-operational, actively promoted business on the Leased Premises; and
2. The Bankruptcy Court shall have entered an Order
segregating sufficient cash payable to Landlord and/or the Trustee or
Debtor-In-Possession shall have granted a valid and perfected first lien and
security interest and/or mortgage in property of Tenant. Trustee or
Debtor-In-Possession, shall furnish property or security acceptable as to value
and kind to Landlord, to secure to Landlord the obligation of the Trustee or
Debtor-In-Possession to cure the monetary and/or non-monetary defaults under
this Lease within the time periods set forth above.
SECTION 16.03. LANDLORD'S OPTION TO TERMINATE UPON SUBSEQUENT
BANKRUPTCY PROCEEDINGS OF TENANT. In the event that this Lease is assumed by a
Trustee appointed for Tenant or by Tenant as Debtor-In-Possession under the
provisions of Section 16.02 hereof and thereafter Tenant is liquidated or files
a subsequent Petition for reorganization or adjustment of debts under Chapters
11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord
may, at its option, terminate this Lease and all rights of Tenant hereunder, by
giving Tenant written notice of its election to so terminate, by no later than
thirty (30) days after the occurrence of either of such events.
SECTION 16.04. CONDITIONS TO THE ASSIGNMENT OF THE LEASE IN BANKRUPTCY
PROCEEDINGS. If the Trustee or Debtor-In-Possession has assumed the
20
Lease pursuant to the terms and provisions of Paragraph 16.01 or 16.02 herein,
for the purposes of assigning (or elects to assign) the Tenant's interest under
this Lease or the estate created thereby, to any other person, such interest or
estate may be so assigned only if Landlord shall acknowledge in writing that the
intended assignee has provided adequate assurance as defined in this Section
16.04 of future performance of all of the terms, covenants and conditions of
this Lease to be performed by Tenant. For purposes of this section, Landlord and
Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at
a minimum "adequate assurance of future performance" shall mean that each of the
following conditions have been satisfied, and Landlord has so acknowledged in
writing:
A. The assignee has submitted a current financial statement audited by
a Certified Public Accountant which shows a net worth and working capital in
amounts determined to be sufficient by Landlord to assure the future performance
by such assignee of the Tenant's obligations under this Lease;
B. The assignee, if requested by Landlord, shall have obtained
guarantees in form and substance satisfactory to Landlord from one or more
persons who satisfy Landlord's standard of creditworthiness;
C. The Landlord has obtained all consents or waivers from any third
party required under any lease, mortgage, financing arrangement or other
agreement by which Landlord is bound to permit Landlord to consent to such
assignment.
SECTION 16.05. USE AND OCCUPANCY CHARGES. When, pursuant to the
Bankruptcy Code, the Trustee or Debtor-In-Possession shall be obligated to pay
reasonable use and occupancy charges for the use of the Leased Premises or any
portion thereof, such charges shall not be less than the minimum rent as defined
in this Lease and other monetary obligations of Tenant for the payment of
maintenance, real estate taxes, insurance and similar charges.
SECTION 16.06. TENANT'S INTEREST NOT TRANSFERABLE BY VIRTUE OF STATE
INSOLVENCY LAW WITHOUT LANDLORD'S CONSENT. Neither Tenant's interest in the
Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby
created, shall pay to any trustee, receiver, assignee for the benefit of
creditors, or any other person or entity, or otherwise by operation of law under
the laws of any state having jurisdiction of the person or property of the
Tenant ("state law") unless Landlord shall consent to such transfer in writing.
No acceptance by Landlord of rent or any other payments from any such trustee,
receiver, assignee, person or other entity shall be deemed to have waived, nor
shall it waive the need to obtain Landlord's consent or Landlord's right to
terminate this Lease for any transfer of Tenant's interest under this Lease
without consent.
SECTION 16.07. LANDLORD'S OPTION TO TERMINATE UPON INSOLVENCY OF TENANT
OR GUARANTOR UNDER STATE INSOLVENCY LAW OR UPON INSOLVENCY OF GUARANTOR UNDER
FEDERAL BANKRUPTCY ACT. In the event the estate of Tenant created hereby shall
be taken in execution or by other process of law, or if Tenant or any guarantor
of Tenant's obligations hereunder ("guarantor") shall be adjudicated insolvent
pursuant to the provisions of any present or future insolvency law under the
laws of any state having jurisdiction ("state law"), or if any proceedings are
filed by or against such
21
guarantor under the Bankruptcy Code, or any similar provisions of any future
federal bankruptcy law, or if a Receiver or Trustee of the property of Tenant or
guarantor is unable to pay its debts as they become due or otherwise, or if any
assignment shall be made of Tenant's or guarantor's property for the benefit of
creditors under state law; then and in such event, Landlord may, at its option,
terminate this Lease and all rights of Tenant hereunder by giving Tenant written
notice of the election to so terminate within ninety (90) days after the
occurrence of such event.
ARTICLE XVII. ACCESS BY LANDLORD.
SECTION 17.01. RIGHT OF ENTRY. Landlord or Landlord's agent shall have
the right to enter the Leased Premises at all reasonable times upon forty eight
(48) hours prior written notice to examine the same, except emergencies, and so
as to not unreasonably interfere with Tenants business operations, and to show
it to prospective purchasers or mortgagees of the Leased Premises, and to make
such repairs, alterations, improvements or additions as Landlord may deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon said Leased Premises that may be required therefore without the same
constituting an eviction of Tenant in whole or in part, and the rent reserved
shall not xxxxx while said repairs, alterations, improvements, or additions are
being made, by reason of loss or interruption of business of Tenant, or
otherwise. During the ninety (90) days prior to the expiration of the Term of
this Lease or any renewal term, Landlord may exhibit the Leased Premises to
prospective tenants and place upon the Leased Premises the usual notices "To
Let" or "For Rent", or "For Lease" which notices Tenant shall permit to remain
thereon without molestation.
ARTICLE XVIII. TENANT'S PROPERTY.
SECTION 18.01. TAXES ON TENANT'S PROPERTY. Tenant shall be responsible
for and shall pay before delinquency all municipal, county, state and federal
taxes assessed during the Term of this Lease against any leasehold interest or
personal property of any kind, owned by or placed in, upon or about the Leased
Premises by the Tenant.
SECTION 18.02. LOSS AND DAMAGE. The Landlord shall not be responsible
or liable to the Tenant for any loss or damage that may be occasioned by or
through the acts or omissions of persons occupying adjoining property, or for
any loss or damage resulting to the Tenant or its property from bursting,
stoppage or leaking of water, gas, sewer or steam pipes, or for any damage or
loss of property within the Leased Premises, unless such damage is caused by
Landlord or such stoppage or leaking continues for more than forty-eight (48)
hours.
SECTION 18.03. NOTICE BY TENANT. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the Leased Premises or in the building
of which the Leased Premises are a part or of defects therein or in any fixtures
or equipment of which Tenant is aware.
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ARTICLE XIX. HOLDING OVER.
SECTION 19.01. HOLDING OVER. It is hereby agreed that in the event of
Tenant holding over after the termination of this Lease, thereafter the tenancy
shall be from month to month in the absence of a written agreement to the
contrary, and Tenant shall pay to Landlord an occupancy charge equal to one
hundred twenty-five (125%) percent of the monthly base rent under Article II
(plus all other charges payable by Tenant under this lease) prorated for each
day from the expiration or termination of this Lease until the date the Leased
Premises are delivered to Landlord in the condition required herein.
SECTION 19.02. SUCCESSORS. All rights and liabilities herein given to,
or imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors, and assigns of
the said parties; and if there shall be more than one Tenant, they shall all be
bound jointly and severally by the terms, covenants and agreements herein. No
rights, however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved by Landlord in writing as provided
in Section 11.01 hereof.
ARTICLE XX. RULES AND REGULATIONS.
SECTION 20.01. RULES AND REGULATIONS. Tenant agrees to comply with and
observe all rules and regulations described on Exhibit L hereof. Tenant's
failure to keep and observe said rules and regulations shall constitute a breach
of the terms of this Lease in the manner as if the same were contained herein as
covenants if such breach continues more than thirty (30) days after notice of
such breach is received by Tenant or such additional time to effectuate such
cure if Tenant has diligently prosecuted such cure.
ARTICLE XXI. QUIET ENJOYMENT.
SECTION 21.01. LANDLORD'S COVENANT. Upon payment by the Tenant of the
rents herein provided, and upon the observance and performance of all the
covenants, terms and conditions on Tenant's part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the
Term without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease, and any
mortgages to which this Lease is subordinate.
ARTICLE XXII. MISCELLANEOUS.
SECTION 22.01. WAIVER. One or more waivers of any covenant or condition
by Landlord shall not be construed as a waiver of a subsequent breach of the
same covenant or condition, and the consent or approval by Landlord to or of any
act by Tenant requiring Landlord's consent or approval shall not be deemed to
render unnecessary Landlord's consent or
23
approval to or of any subsequent similar act by Tenant. No breach of a covenant
or condition of this Lease shall be deemed to have been waived by Landlord,
unless such waiver be in writing signed by Landlord.
SECTION 22.02. ENTIRE AGREEMENT. This Lease and the Exhibits, Schedules
and Rider, if any, attached hereto and forming a part hereof, set forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Leased Premises and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than are herein set forth. No alteration, amendment, change or addition to
this Lease, excepting only reasonable rules and regulations as determined by
Landlord from time to time shall be binding upon Landlord or Tenant unless
reduced to writing and signed by each party.
SECTION 22.03. INTERPRETATION AND USE OF PRONOUNS. Nothing contained
herein shall be deemed or construed by the parties hereto, nor by any third
party, as creating the relationship of principal and agent or of partnership or
of joint venture between the parties hereto, it being understood and agreed that
neither the method of computation of rent, nor any other provision contained
herein, nor any acts of the parties herein, shall be deemed to create any
relationship between the parties hereto other than the relationship of Landlord
and Tenant. Whenever herein the singular number is used, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders.
SECTION 22.04. DELAYS. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of a Change Order, strikes, lockouts, labor troubles,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reason of a like nature not
the fault of the party delayed in performing work or doing acts required under
the terms of this Lease, then such party (the "Delayed Party") shall give
written notice as soon as possible to the other party hereto of its claim of
right to an extension, the time frame for such extension, and the reason(s)
therefore. The party receiving such notice shall respond within five (5) days of
its receipt of the notice indicating whether or not it agrees that the delay
should excuse the Delayed Party from its obligation under this Lease ("Lease
Obligation"), the performance of which is being hindered by the delay. If both
parties agree that the delay shall excuse the Delayed Party from its Lease
Obligation for the length of time set forth in the notice (an "Excused Delay"),
then the deadline by which the Delayed Party must meet the Lease Obligation
shall be extended for the length of the Excused Delay. If the party receiving
notice does not respond within five (5) days of its receipt of notice, then the
cause of delay set forth in the notice given by the Delayed Party shall be an
Excused Delay, and the deadline by which the Delayed Party must perform its
Lease Obligation shall be extended for the length of the Excused Delay. If the
party receiving notice does not agree that the cause of delay set forth in the
notice should be an Excused Delay, then each party shall appoint one (1)
independent general contractor to determine whether the cause of delay indicated
in the notice should constitute an Excused Delay and extend the Delayed Party's
deadline for performance. If the two independent general contractors differ in
their determinations, then they shall mutually agree upon a third independent
general contractor whose determination shall govern as to whether the delay(s)
24
indicated in the notice should constitute an Excused Delay and extend the
Delayed Party's deadline for performance.
SECTION 22.05. NOTICES. Any notice, demand, request, or other
instrument which may be or is required to be given under this Lease shall be
sent by United States certified mail, return receipt requested, postage prepaid,
or by national overnight courier (e.g. Federal Express) and shall be addressed
(a) if to Landlord, at 00000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
or at such other address as Landlord may designate by written notice, and (b) if
to Tenant 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 until Tenant takes possession
of the Leased Premises. At such time, the address of the Tenant will be the
address of the Leased Premises.
SECTION 22.06. CAPTIONS AND SECTION NUMBERS. The captions, section
numbers, article numbers and index appearing in this Lease are inserted only as
a matter of convenience and in no way define, limit, construe, or describe the
scope or intent of such sections or articles of this Lease nor in any way affect
this Lease.
SECTION 22.07. RECORDING. Tenant shall not record this Lease without
the written consent of Landlord; provided, however, upon the request of either
party hereto the other party shall join in the execution of a memorandum or
so-called "short form" of this Lease for the purposes of recording. Said
memorandum or short form of this Lease shall describe the parties, the Leased
Premises, the Term of this Lease, any special provisions, and shall incorporate
this Lease by reference.
SECTION 22.08. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer or transfers of Landlord's interest in the Leased Premises, including a
so-called sale-leaseback, the transferor shall be automatically relieved of any
and all obligations on the part of Landlord accruing from and after the date of
such transfer, provided that (a) the interest of the transferor, as Landlord, in
any funds then in the hands of Landlord in which Tenant has an interest shall be
turned over, subject to such interest, to the then transferee; and (b) notice of
such sale, transfer or Lease shall be delivered to Tenant as required by law.
Upon the termination of any such lease in a sale-leaseback transaction prior to
termination of this Lease, the former lessee thereunder shall become and remain
liable as Landlord hereunder until a further transfer. No holder of a mortgage
to which this Lease is or maybe subordinate shall be responsible in connection
with the security deposited hereunder, unless such mortgagee or holder of such
deed of trust or lessor shall have actually received the security deposited
hereunder.
SECTION 22.09. INTEREST ON PAST DUE OBLIGATIONS AND LATE CHARGES.
(a) Any amount due from Tenant to Landlord hereunder which is not paid
within thirty (30) days of when due shall bear interest at the rate of six (6%)
percent from the date due until received by Landlord, but the payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
(b) Tenant shall pay a Late Payment Fee of five (5%) percent of any
amount due on all payments required to be made under this Lease which are not
paid within ten (10) days of
25
becoming due. The parties acknowledge that the fee is intended solely to
compensate Landlord for the additional costs incurred in processing the payments
received late.
SECTION 22.11. LIABILITY OF LANDLORD.
A. Except for any construction obligations under this Lease, if
Landlord should fail to perform any covenant, term or condition of this Lease
upon Landlord's part to be performed, and if as a consequence of such default
Tenant shall recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of such
judgment and levied thereon against the right, title and interest of Landlord in
the Leased Premises and out of rents or other income from such property
receivable by Landlord, or out of the consideration received by Landlord from
the sale or other disposition of all or any part of Landlord's right, title and
interest in the Leased Premises. Landlord shall not be liable for any
deficiency. The term "Landlord" as used in this section, shall mean only the
owner or owners at the time in question of the fee title or its interest in a
ground lease of the Leased Premises, and in the event of any transfer of such
title or interest, Landlord herein named (and in case of any subsequent
transfers the then grantor) shall be relieved from and after the date of such
transfer of all liability as respects Landlord's obligations thereafter to be
performed, 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 delivered
to grantee.
B. If Landlord shall be in default under the terms of this Lease,
Tenant shall provide notice of such default in writing to Landlord, and Landlord
shall have thirty (30) days upon its receipt of such notice to cure such default
(or such additional time as is necessary to cure such default if Landlord has
diligently prosecuted such cure). If after such notice and cure, Landlord is
still in default under the terms of this Lease, Tenant shall have the right to
offset all damages or amounts incurred by Tenant because of such default
together with interest at any interest rate provided in this Lease for the
benefit of Landlord against any rents or other amounts due under this Lease
until such Landlord default is cured. Tenant also has the right to pursue any
other rights and remedies at law or in equity.
SECTION 22.12. PARKING. Landlord agrees to provide to Tenant One
Thousand Four Hundred (1,400) parking spaces at all times during the Term. The
failure to provide such parking shall be a default by Landlord under this Lease.
SECTION 22.13. ACCORD AND SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly rent or other charges herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord shall accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy in this Lease provided.
26
SECTION 22.14. EXECUTION OF LEASE. The submission of this Lease for
examination does not constitute a reservation of or option for the Leased
Premises, and this Lease shall become effective as a lease only upon execution
and delivery thereof by Landlord and Tenant.
SECTION 22.15. LAWS OF THE STATE OF MICHIGAN. This Lease shall be
governed by, and construed in accordance with, the laws of the State of
Michigan. If any provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease shall not be affected thereby and each provision of the
Lease shall be valid and enforceable to the fullest extent permitted by the law.
SECTION 22.16. INDEPENDENT CONSULTATION. Tenant acknowledges that
Landlord and/or its agent(s) has advised Tenant to consult with its attorney and
accountants as to the effects of entering into this Lease, including but not
limited to the tax consequences of same, the terms and conditions of the Lease
and its sufficiency and effect. Neither Landlord, or any person or entity
affiliated therewith have made any representations concerning this Lease or
matters related thereto unless expressly stated in writing in this Lease.
SECTION 22.17. BROKERAGE COMMISSION. It is expressly acknowledged and
agreed that Signature Associates, Inc. ("Broker") is the broker in connection
with this Lease. Broker is acting as the representative of Tenant.
Notwithstanding the foregoing, Landlord shall pay to Broker the commission due
in accordance with the Commission Agreement dated June 17, 2003 as may be
amended from time to time. Each party shall indemnify, defend and hold the other
party harmless from claims of brokers arising from acts or omissions of the
other party. Tenant shall have the right to pay such commission to Broker if
Landlord fails to pay such commission to and offset such payments from amounts
due under this Lease.
[SIGNATURES ON FOLLOWING PAGE]
27
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of
the day and year first above written.
IN THE PRESENCE OF:
LANDLORD:
VAN DYKE OFFICE LLC,
a Michigan limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Manager
TENANT:
ASSET ACCEPTANCE, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
-----------------------------------------
Xxxxxxxxx X. Xxxxxxx XX
Its: President
28
ACKNOWLEDGMENT OF LANDLORD
STATE OF MICHIGAN )
) Section
COUNTY OF )
On this 30 day of October, 2003, before me personally
appeared Xxxxxxx X. Xxxxxxxxx to me personally known who, being by me duly
sworn, did say that he is the Manager of Xxx Xxxx Office LLC, the limited
liability company named in and which executed the within instrument and that
said instrument was signed on behalf of said limited liability company by
authorization of its managers; and said Xxxxxxx X. Xxxxxxxxx acknowledged before
me said instrument to be the free act and deed of said limited liability
company.
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------
, Notary Public
------------------------
County, Michigan
----------------------
My Commission expires:
----------------
ACKNOWLEDGMENT OF TENANT
STATE OF MICHIGAN )
) Section
COUNTY OF )
On this 31st day of October, 2003, before me personally
appeared Xxxxxxxxx X. Xxxxxxx XX to me personally known who, being by me duly
sworn, did say that he is the President of Asset Acceptance, LLC, a Delaware
limited liability company, the limited liability company named in and which
executed the within instrument and that said instrument was signed on behalf of
said limited liability company by authorization of its managers; and said
Xxxxxxxxx X. Xxxxxxx XX acknowledged before me said instrument to be the free
act and deed of said limited liability company.
/s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx, Notary Public
Macomb County, Michigan
My Commission expires: 3/14/07
29
EXHIBITS:
Exhibit A Survey - to be provided per Section 1.05
Exhibit B Site Plan
Exhibit C Floor Plan
Exhibit D Base Building Specs
Exhibit E Rent Schedule
Exhibit F Exclusions to Operating Expenses
Exhibit G Leasehold Title Policy -- to be provided per Section 1.05
Exhibit J Project Time Line for Landlord's Work
Exhibit L Rules and Regulations
30
LEASE BY AND BETWEEN
XXX XXXX OFFICE LLC
AS LANDLORD
AND
ASSET ACCEPTANCE, LLC
AS TENANT
DATED
October 31, 2003
