ASSIGNMENT OF LEASE
KNOW ALL MEN BY THESE PRESENTS, that for the sum of One ($1.00) Dollar and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the undersigned, Michigan Educators Insurance Agency, Inc.,
a Michigan corporation ("Assignor"), hereby assigns, transfers and sets unto
MEEMIC Insurance Services Corporation, a Michigan corporation ("Assignee"), all
of its right, title and interest as Lessee in and to that certain Lease
Agreement dated June 28, 1991, as amended by the Lease Agreement dated July 1,
1995 and as amended by the Addendum to Lease dated March 12, 1996 (the "Lease"),
between Assignor and Auburn Real Estate Ventures Limited Partnership as Lessor,
relating to certain property commonly known as 000 X. Xxxxxxxx Xxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000 and located in Oakland County, Michigan (the "Premises").
By this Assignment, Assignor also assigns, transfer and sets unto Assignee all
of Assignor's right, title and interest in and to the Premises.
Assignor represents and warrants that the Lease is in full force and effect
and that attached hereto is a true and complete copy of the Lease as in effect
on the date hereof; that Assignor is the sole and absolute owner of the entire
interest of Lessee under the Lease; that Assignor has the full right and power
to assign the same subject to the consent of the Lessor (which consent has been
obtained); and that there has been no default in any of the conditions,
covenants and other provisions thereof on the part of Assignor to be kept and
performed.
Notwithstanding the foregoing Assignment of Lease, the undersigned Assignor
has performed all of its obligations under the Lease up to the date hereof, and
shall indemnify and hold Assignee hereunder harmless from and against any
liability or obligation under the Lease which shall have accrued prior to the
date hereof.
Assignee does hereby assume and agree to perform all of the obligations of
the Lessee under the Lease which shall accrue from and after the date hereof,
and Assignee shall indemnify and hold Assignor harmless from and against any
obligations thereunder accruing from and after the date hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 22nd day
of September, 1997.
WITNESS MICHIGAN EDUCATORS INSURANCE
AGENCY, INC.
/s/ Xxxxx Xxxxxx BY: /s/ Xxxx X. Xxxx
---------------------------------- ------------------------------------
XXXX X. XXXX
CHAIRMAN
"ASSIGNOR"
/s/ Xxxxx X. Xxxxx
-----------------------------------
(SIGNATURES CONTINUED ON NEXT PAGE)
MEEMIC INSURANCE SERVICES
CORPORATION
/s/ Xxxxx Xxxxxx BY: /s/ Xxxx X. Xxxx
---------------------------------- ------------------------------------
XXXX X. XXXX
CHAIRMAN
"ASSIGNEE"
/s/ Xxxxx X. Xxxxx
----------------------------------
STATE OF MICHIGAN )
)SS:
COUNTY OF OAKLAND )
---------
The foregoing instrument was acknowledged before me this 22nd day of
September, 1997, by Xxxx X. Xxxx, as Chairman of Michigan Educators Insurance
Agency, Inc., a Michigan corporation.
XXXXX X. XXXXXX /s/ Xxxxx X. Xxxxxx
Notary Public, Xxxxx County, MI ---------------------------------------
My Commission Expires July 14, 2000 Notary Public, _____________County, MI
Acting in Oakland County
My Commission Expires:__________________
STATE OF MICHIGAN )
)SS:
COUNTY OF OAKLAND )
--------------
The foregoing instrument was acknowledged before me this 22nd day of
September, 1997, by Xxxx X. Xxxx, as Chairman of MEEMIC Insurance Services
Corporation, a Michigan corporation.
XXXXX X. XXXXXX /s/ Xxxxx X. Xxxxxx
Notary Public, Xxxxx County, MI ---------------------------------------
My Commission Expires July 14, 2000 Notary Public, _____________County, MI
Acting in Oakland County
My Commission Expires:__________________
This instrument was prepared by:
Xxxx X. Xxxxx
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
-2-
[LOGO] Michigan Educators Insurance Agency Inc. EXHIBIT A
Michigan Educators Life Agency Inc.
BUILDING LEASE - INCLUDING
BASEMENT STORAGE
ADDENDUM TO LEASE
DATED MARCH 12, 1996
---------------------
THIS AGREEMENT, made this 12 Day of March, 1996, by and between Auburn Real
Estate Ventures, whose address is 000 Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
(hereinafter referred to as the "Landlord"), and Michigan Educators Insurance
Agency, a Michigan Corporation, whose address is 000 X. Xxxxxxxx Xx., Xxxxxx
Xxxxx, XX 00000, (hereinafter referred to as the "Tenant").
W I T N E S S E T H:
WHEREAS, on June 28, 1991, the parties hereto entered into a Lease agreement
(hereinafter referred to as the "Lease") for the purpose of Landlord leasing to
Tenant approximately 16,000 square feet for a period of five (5) years in the
Concorde Centre, located at 000 X. Xxxxxxxx Xx., Xxxxxx Xxxxx, XX 00000; and
WHEREAS, on July 1, 1995, the parties agreed to amend Lease Agreement for
the purpose of renewing the lease for a period of five (5) years under the same
terms and conditions as the original Lease dated June 28, 1991. In addition,
Tenant now leases 12,073.39 square feet only.
WHEREAS, on March 12, 1996, the parties hereto agreed to amend the Lease
(hereinafter referred to as the "Amendment") for the purpose of extending the
Lease for an additional five (5) years, until August 31, 2006.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. The new base rent, which is effective on September 1, 2001 and continuous
until August 31, 2006 is as follows:
Year Rental Rate/Sq. Ft. Annual Rent Monthly Installments
---- ------------------- ------------ --------------------
2001-2006 $ 15.00 NNN* $ 181,095.00 $15,091.25
* NNN is equal to Net Net Net. Tenant will pay all operating/Tax expenses
attributable to each Net as additional rent.
2. Base Rent will increase annually at the start of each new Lease year
beginning August 31, 2002, by the percentage increase in the CPI-U for all
Items (consumer's price index for all urban consumers as published by the
U.S. Department of Labor Bureau of Labor statistics) for the immediate
preceding year.
3. Tenant and Landlord hereby ratify the Lease and all of the terms,
conditions, covenants and provisions including rental options therein as in
full force and effect, except as stated hereinabove.
IN WITNESS THEREOF, Xxxxxxxx and Xxxxxx have executed this Lease Addendum
agreement as of the day and date first written above.
WITNESS: AUBURN REAL ESTATE VENTURES:
A MICHIGAN LIMITED PARTNERSHIP
BY:
-------------------------- ------------------------------------------
XXXXXXX X. XXXXX
ITS:
-------------------------- -----------------------------------------
PROPERTY MANAGER
MICHIGAN EDUCATORS INSURANCE AGENCY
A MICHIGAN CORPORATION
/s/ Xxxxxxx Xxxx BY: /s/
-------------------------- ------------------------------------------
ITS: President
-------------------------- -----------------------------------------
LEASE AGREEMENT
This agreement, made this 20th day of July, 1995, by and between Auburn Real
Estate Ventures, whose address is 000 X. Xxx Xxxxxx, Xxxxx 000, Xxxx, XX
00000 (hereinafter referred to as the "Landlord") and Michigan Educators
Insurance Agency Inc., (a Michigan Corporation), whose address is 000 X.
Xxxxxxxx Xx., Xxxxx 000, Xxxxxx Xxxxx, XX 00000 (hereinafter referred to as
the "Tenant").
Now, therefore, in consideration of the mutual covenants and undertakings
hereinafter set forth, the Landlord hereto agree's to lease tenant approximately
430 square feet of storage space for 1 year from the date hereof. There will
be a monthly charge of the following:
Month Rate Annually Monthly
----- ----- --------- --------
1-12 $8.00 $3,440.00 $286.66
Tenant shall be responsible for maintaining, at their sole cost and expense, the
appearance of their designated storage area in such a way that is acceptable to
Landlord. Tenant shall also be responsible for securing their area. Under no
circumstances is the Landlord responsible for anything broken, lost, or stolen.
IN WITNESS THEREOF, Xxxxxxxx and Xxxxxx have executed this Lease addendum
agreement as of the day and date first written above.
WITNESS: AUBURN REAL ESTATE VENTURES:
/s/ BY: /s/
-------------------------- ------------------------------------------
ITS: Landlord
-------------------------- -----------------------------------------
"LANDLORD"
MICHIGAN EDUCATORS INSURANCE AGENCY INC.
/s/ BY: /s/
-------------------------- ------------------------------------------
ITS:
-------------------------- -----------------------------------------
"TENANT"
LEASE AGREEMENT
between
AUBURN VENTURES LIMITED PARTNERSHIP
and
MICHIGAN EDUCATORS INSURANCE AGENCY, INC.
dated
JUNE 28, 1991
INDEX TO LEASE AGREEMENT
Paragraph Page
--------- ----
1. PREMISES . . . . . . . . . . . . . . . . . . . 1
2. TERM . . . . . . . . . . . . . . . . . . . . 1
3. TENANT IMPROVEMENTS . . . . . . . . . . . . . . . 2
4. RENT . . . . . . . . . . . . . . . . . . . . 2
5. SERVICES . . . . . . . . . . . . . . . . . . . 2
6. INJURIES TO PERSON AND PROPERTY . . . . . . . . . . . 2
7. ALTERATIONS . . . . . . . . . . . . . . . . . . 3
8. INSURANCE AND INDEMNIFICATION . . . . . . . . . . . . 3
9. CARE OF PREMISES . . . . . . . . . . . . . . . . 5
10. PAYMENT FOR SERVICES RENDERED BY LANDLORD . . . . . . . . 6
11. UTILITIES; SERVICES . . . . . . . . . . . . . . . 6
12. USE OF PREMISES. . . . . . . . . . . . . . . . . 7
13. DAMAGE. . . . . . . . . . . . . . . . . . . . 7
14. MOVE-IN . . . . . . . . . . . . . . . . . . . 7
15. ACCESS TO PREMISES. . . . . . . . . . . . . . . . 8
16. EMINENT DOMAIN . . . . . . . . . . . . . . . . . 8
17. ASSIGNMENT OR SUBLETTING. . . . . . . . . . . . . . 8
18. SURRENDER. . . . . . . . . . . . . . . . . . . 9
19. BREACH; INSOLVENCY; RE-ENTRY . . . . . . . . . . . . 9
20. BANKRUPTCY OR INSOLVENCY. . . . . . . . . . . . . . 11
21. LANDLORD'S RIGHT TO CURE DEFAULTS. . . . . . . . . . . 15
22. REMOVAL OF TENANT'S PROPERTY UPON TERMINATION. . . . . . . 15
23. SECURITY . . . . . . . . . . . . . . . . . . . 15
-i-
24. HOLDING OVER. . . . . . . . . . . . . . . . . . 16
25. SUBORDINATION . . . . . . . . . . . . . . . . . 16
26. ADDITIONAL RENT . . . . . . . . . . . . . . . . 17
27. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . 20
28. SECURITY DEPOSIT . . . . . . . . . . . . . . . . 20
29. NO REPRESENTATIONS BY LANDLORD. . . . . . . . . . . . 21
30. ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . 21
31. GENERAL . . . . . . . . . . . . . . . . . . . 21
32. BILLS AND NOTICES . . . . . . . . . . . . . . . . 22
33. RULES AND REGULATIONS. . . . . . . . . . . . . . . 22
34. NAME OF BUILDING . . . . . . . . . . . . . . . . 22
35. PREVENTING REMOTE VESTING . . . . . . . . . . . . . 22
36. DEFINITION OF LANDLORD, LANDLORD'S LIABILITY . . . . . . . 22
37. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . 23
38. CHANGES TO LEASE REQUIRED BY LENDER . . . . . . . . . . 23
39. MORTGAGE PROTECTION CLAUSE . . . . . . . . . . . . . 23
-ii-
LEASE AGREEMENT
This Lease Agreement made this 28th day of June, 1991, by and between
AUBURN REAL ESTATE VENTURES LIMITED PARTNERSHIP, a Michigan limited
partnership, of 000 Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 ("Landlord")
and Michigan Educators Insurance Agency, Inc. a Michigan corporation, of 000
Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 ("Tenant").
The parties hereto, in consideration of the leasing by Landlord to
Tenant and the taking by Tenant from Landlord of the Premises hereinafter
described and in further consideration of the obligations of each party to
the other party undertaken, covenant and agree as follows:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby takes
from Landlord the premises situated in the City of Auburn Hills, Oakland
County, Michigan, described as consisting of approximately 16,000 square
feet within the building known as The Concorde Centre, as more particularly
described in Exhibit A, together with all easements, rights of ingress and
egress, parking areas and facilities and all appurtenances and fixtures
belonging to or appertaining to said premises ("Premises"). The Premises is
outlined in red on Exhibit B.
2. TERM.
A. The term of this Lease shall commence on September 1, 1991,
provided the Premises are Ready for Occupancy (as hereinafter defined), or
on such earlier date on which Xxxxxx takes possession of the Premises or,
if the Premises are not Ready for Occupancy, on the date first set forth in
this sentence, then on the date Landlord tenders possession of the Premises
to Tenant, Ready for Occupancy. The term "Commencement Date," as used in
this Lease, shall mean the date on which the term commences. The term shall
end and the Expiration Date shall be five (5) years from the Commencement
Date. The Premises will be conclusively deemed "Ready for Occupancy" as
soon as the work to be done under paragraph 3 has been substantially
completed, and the Premises may be occupied. The Premises will not be
considered unready or incomplete if only minor or insubstantial details of
construction or decoration, or mechanical adjustments, remain to be done
in the Premises or the common areas of the Building, or if the delay in
availability of the Premises for Tenant's occupancy is caused in whole or
in part by Tenant.
B. Promptly following commencement of the term, the Commencement
Date shall be confirmed by the parties initialling the Commencement Date
and Expiration Date set forth on Exhibit C, but failure of Tenant to
acknowledge the Commencement Date shall not affect any obligation of
Tenant
hereunder or Xxxxxxxx's determination of the Commencement Date pursuant
to this paragraph 2.
C. If for any reason Landlord cannot deliver possession of the
Premises to Tenant on or before the date first set forth in 2.A above,
Landlord shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Tenant
hereunder.
3. TENANT IMPROVEMENTS. The parties will sign within thirty (30) days
from the date hereof, outline specifications for certain improvements to the
Premises ("Tenant Improvements"), which specifications shall be attached
hereto as Exhibit D and by this reference are incorporated herein. Unless
otherwise stated in Exhibit D, all Tenant Improvements shall be undertaken by
Landlord or contractors of Landlord's selection. The cost of Tenant
Improvements shall be borne by Landlord and Tenant as set forth on Exhibit D.
4. RENT. Tenant shall pay to Landlord as the "Base Rent" for the
Premises during the term hereof the sum of Two Hundred Forty Thousand
Dollars ($240,000) per year payable in monthly installments of Twenty
Thousand Dollars ($20,000) each. Each monthly installment shall be paid in
advance on the first day of each and every month (the "Rent Day") during
the term, at the office of Landlord at the above address, or at such other
place as Landlord may designate from time to time in writing. The first
installment of one month's rent shall be due and payable at the
Commencement Date. If Tenant shall fail to pay the Base Rent or any
additional rent within five (5) days after the same shall be due, in
addition to such other remedies and impositions as may be provided for
elsewhere in this Lease, the amount unpaid shall be subject to a late
payment charge, as additional rent, of Thirty ($30.00) Dollars in each
instance to cover Landlord's additional administrative costs. Wherever in
this Lease Tenant is to pay any amount to Landlord, whether designated
"additional rent," "rent" or otherwise, such amount, together with any
interest added pursuant to paragraph 18, shall be deemed rent for all
purposes under this Lease.
5. SERVICES. Landlord agrees to provide the services set forth in
Exhibit E.
6. INJURIES TO PERSON AND PROPERTY. Landlord shall not be liable to
Tenant for injury to person or property arising out of the acts, omissions
or neglect of Tenant, its servants, agents, employees, visitors or
licensees, or any other occupant of or visitor to the Building or the
Premises, or of any person in or about the Building or the Premises, or of
owners or occupants of or persons on or about surrounding properties; nor
for injury to person or property arising out of patent or latent defects,
structural or otherwise, in the Building or any appurtenance
-2-
thereof, or arising out of the condition of the Building, or by or from the
bursting, stoppage or leaking of or from any pipes or drains, or from the
malfunctioning of any utility, facility or installation; or for any damage or
loss of property from any cause other than the gross negligence or willful
act of Landlord.
Tenant shall indemnify and hold harmless the Landlord from any liability
for damages to any person or property in, on or about the Premises from any
cause whatsoever.
All property kept, stored or maintained by Tenant in and about the
Premises shall be kept, stored or maintained at the sole risk of Tenant, and
Landlord shall not be responsible for any property entrusted to employees of
Landlord.
7. ALTERATIONS. Tenant will make no alterations in or additions or
improvements to the Premises without first obtaining the written consent
of Landlord, and then only between such hours and by such contractors and
mechanics as may be then employed by Landlord (except with respect to
movable furniture and trade fixtures, which work may be done by such
contractors and mechanics as may be approved by Landlord in writing). All
alterations, additions, improvements and replacements made or provided by
either party upon the Premises, except movable furniture and trade
fixtures provided at Tenant's expense, shall be the property of Landlord,
and shall remain upon and be surrendered with the Premises upon
termination, without molestation or injury. Tenant shall keep the Premises
free of liens of any sort arising out of or in connection with the work
done upon or in the Premises by Tenant or pursuant to its authority. All
costs and expenses in connection with any work done and materials supplied
under this paragraph shall be borne solely by Xxxxxx.
8. INSURANCE AND INDEMNIFICATION. With respect to the insurance, it is
agreed:
A. BUILDING AND REAL ESTATE POLICY.
(1) GENERAL. Landlord, at Tenant's expense, will obtain and
maintain at all times until termination of this Lease and surrender
of the Premises to Landlord, a policy of insurance related to the
Building and Real Estate (each defined herein as in Section 26.A(1))
and providing the insurance protection to Landlord. Said policy is
hereinafter referred to as the "Building and Real Estate Policy."
Landlord will retain in its possession the original policy and all
endorsements, renewal certificates and new policies, if any, issued
during the Term, but will provide Tenant upon request certificates
evidencing the existence of the policy.
-3-
(2) LIABILITY COVERAGE UNDER PREMISES POLICY. The liability
coverage under the Building and Real Estate Policy will name Landlord
(and if so desired by Landlord, then Xxxxxxxx's mortgagee also) only,
as insured party(ies), and will provide comprehensive general public
liability insurance coverage against claims for or arising out of
bodily injury, death or property damage, occurring in, on or about the
Building and Real Estate or property in, on or about the streets,
sidewalks or properties adjacent to the Building and Real Estate. The
policy shall have a combined bodily injury and property damage limit
of not less than Two Million ($2,000,000.00) Dollars per
occurrence, and an aggregate limit of not less than Two
Million ($2,000,000.00) Dollars and thereafter in such reasonably
appropriate increased amounts as may be determined by Landlord;
provided, however, that the amount of coverage will not be increased
more frequently than at one (1) year intervals.
(3) PROPERTY COVERAGE UNDER BUILDING AND REAL ESTATE POLICY.
The Building and Real Estate Policy will insure Landlord's interest
in the Building (but not any personal property, fixtures or
equipment of Tenant), for full replacement cost against loss by
fire, with extended coverage, vandalism, malicious mischief,
sprinkler leakage and causes of loss - special form. Landlord or,
if requested by Landlord, Xxxxxxxx's mortgagee(s), shall be loss
payee in form satisfactory to Landlord. The initial amount of this
property damage insurance for the Building will be Ten Million
($10,000,000) Dollars, but such amounts may be increased upon
notice to Tenant on the recommendation or requirement of Landlord
or Landlord's mortgagee, in order to reflect increases in the
replacement cost of the Building.
(4) LOSS OF RENTS COVERAGE UNDER BUILDING AND REAL ESTATE
POLICY. The Building and Real Estate Policy also will provide loss
of rents coverage sufficient, as reasonably determined by Landlord,
to cover the net rental and all other charges which are the
obligation of Tenant under this Lease for a twelve (12) month
period from the date of any loss or casualty.
B. INDEMNITY AND TENANT INSURANCE. The Tenant agrees to indemnify
and hold harmless the Landlord from any liability for damages to any person
or property in, on or about the Premises, Building or Real Estate from any
cause whatsoever, and in addition to the above, and not by way of
substitution therefor, Tenant shall obtain, at its own expense, a policy
(the "Tenant Policy") having both (i) general public liability insurance
coverage, including blanket contractual coverage
-4-
(including contractual indemnity coverage), and (ii) full replacement cost
coverage against loss by fire, with extended coverage, vandalism, malicious
mischief, sprinkler leakage and causes of loss - special form, covering
Tenant's personal property, fixtures and equipment on or about the
Premises, Building or Real Estate. Tenant shall cause Landlord (and if so
requested by Landlord, then also Xxxxxxxx's mortgagee) to be a certificate
holder for the Tenant Policy. The Tenant shall also cause Landlord to be an
additional insured in regards to the general liability insurance coverage
of the Tenant's Policy only (with Tenant being the insured without Landlord
as to all other provisions of the Tenant Policy). The Tenant Policy shall
have the same limits of coverage as set forth in subparagraph 8.A(2) as the
same may be changed or amended from time to time. Such policy shall be
issued by an insurance company having an A.M. Best Company rating of not
less than "A." The policy procured by Tenant under this subparagraph 8.B
must provide for at least thirty (30) days' written notice to Landlord of
any cancellation, except in the event of nonpayment, in which case the
notice of cancellation will be delivered by Tenant to Landlord at least ten
(10) days prior to the effective date thereof, effective for not less than
one (1) year. Tenant will deliver certificates of renewal for such policies
to Landlord at least thirty (30) days prior to the expiration dates
thereof. In the event Tenant fails to keep the Tenant Policy in force,
Landlord may at Tenant's expense secure such insurance and the premium
therefor shall be paid as additional rent by Tenant within five (5) days
after being billed therefor.
9. CARE OF PREMISES. Except as otherwise provided in this Lease,
Landlord shall make all necessary repairs and replacements to the Building, the
Premises and the common areas, structural or otherwise, and to the heating,
plumbing, air conditioning and electrical systems located therein, including all
such repairs and replacements required due to fire, casualty or other act of
God. Tenant, at its sole cost and expense, shall keep the Premises at all times
in good condition (except for reasonable wear and tear), and in a sanitary and
safe condition in accordance with all directions, rules and regulations of the
health officer, fire xxxxxxxx, building inspector or other proper officers of
any governmental agencies having jurisdiction, and Tenant shall comply with all
requirements of law, ordinance or otherwise, pertaining to or affecting the
Premises. Tenant shall bear the full cost of the repair (or replacement as
needed) of all damage to the Premises or to the Building or its fixtures and
equipment caused by the act, neglect or default of Tenant, its servants,
employees, agents, visitors or licensees. Landlord may, at its option, either
authorize Tenant and its contractors (who shall receive Landlord's approval
prior to the commencement of any work) to undertake such repair or replacement,
or cause such repair or replacement to be undertaken by Xxxxxxxx's own
employees, agents or contractors for
-5-
the account of Tenant. If Xxxxxx, having been authorized to do so, fails
to immediately commence and expeditiously carry out such repairs and/or
replacements itself, Landlord may do so at Tenant's expense and the cost
thereof shall be paid by Xxxxxx as additional rent to Landlord within five
(5) days after being billed therefor. Tenant shall permit no waste or
nuisance upon or damage or injury to the Premises or utilities supplied
thereto.
10. PAYMENT FOR SERVICES RENDERED BY LANDLORD. In the event that Landlord
at any time shall, at the request of Tenant or on Tenant's behalf, either
perform or cause to be performed, itself or by its agents, employees or
contractors, any work in connection with the Premises, or shall supply or cause
to be supplied any materials to the Premises, whether pursuant to paragraph 7 or
otherwise, and the cost of such services, work or materials is to be borne by
Tenant under the terms of this Lease or otherwise, Landlord shall invoice Tenant
for such cost, which sum shall be payable by Tenant within five (5) days after
being billed therefor.
11. UTILITIES; SERVICES.
A. Heating, ventilation and air conditioning shall be furnished
as required to provide reasonably comfortable temperatures during
business hours. Landlord shall not be liable to Tenant, nor shall rent
be abated for failure or delay in furnishing water, heat, air
conditioning, electric current, janitorial or maintenance service when
such failure or delay is occasioned by repairs or improvements to the
Premises or the Building, or by any strike, lockout, labor controversy,
accident or casualty, or by any statute, rule, regulation or ordinance
of any governmental body, or by any cause beyond the reasonable control
of Landlord. Such failure or delay shall not be deemed an act of
eviction against Tenant nor shall such failure or delay in any way
operate as a release from the prompt and punctual performance of
Tenant's covenants, agreements, stipulations or other obligations under
this Lease.
B. In the event the loss of any utility or service arises by
reason of necessary repairs, improvements or causes within the
reasonable control of Landlord, Landlord shall within a reasonable time
restore the utility or service, and upon Landlord's failure to restore
such utility or service within a reasonable time, Tenant's sole and
exclusive remedy for any interruption of its use of the Premises caused
thereby shall be an abatement of rent until such utility or service is
restored; provided, however, in no event shall Tenant have the right to
an abatement of rent unless the loss of a utility or service continues
for at least ten (10) days.
-6-
12. USE OF PREMISES. The Premises shall be used for the purpose of
general offices of Tenant and for such other or added purposes as may receive
the prior written approval of Landlord, but in no event shall Tenant use or
permit the use of any part of the Premises in violation of any laws, ordinances,
rules or regulations of any municipal, county, state or federal body. Tenant
shall not conduct Tenant's business or profession in any manner prohibited by
any code or principles of such business or profession, and in no event in any
manner prohibited by law. Without permission of Landlord, no vending machines
may be installed in or about the Premises except by Landlord. Tenant shall not
place a load upon any floor of the Premises exceeding the floor load per square
foot area which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all
equipment, furniture, file cabinets and other heavy objects which must be placed
so as to distribute the weight. Business machines and mechanical equipment
shall be placed and maintained by Tenant at Tenant's expense in settings
sufficient in Landlord's judgment to absorb and prevent vibration, noise and
annoyance.
13. DAMAGE. If any part of the Premises is damaged by fire or other
casualty, Landlord shall, unless it elects to terminate this Lease as provided
herein, proceed with reasonable speed to repair the damage and, if such damage
renders the Premises untenantable and was not caused by any act, neglect or
default of Tenant, its servants, agents, employees, visitors or licensees, there
shall be an equitable abatement of rent for the period during which, and to the
extent that, the Premises are untenantable. Landlord shall have the right to
elect to demolish, rebuild or reconstruct the Building if the Building is
damaged by fire or other casualty, and if Landlord so elects, whether or not the
Premises have been damaged, this Lease may be terminated by Landlord upon
written notice to Tenant and the rent shall thereupon be adjusted to the date of
the fire or other casualty. If repair of the Premises is delayed by Xxxxxx's
failure to adjust its own insurance claim, there shall be no abatement for the
period of such delay. Repairs by Landlord of any damage shall not constitute a
waiver of any claim which Landlord or its insurer may make against Tenant, its
servants, agents, employees, visitors or licensees by reason of such damage.
14. MOVE IN. All activities of Tenant in connection with either its move
into the Premises at the commencement of this Lease or its move out of the
Premises at any time (whether or not upon the termination hereof) shall be
subject to the following:
A. All furniture, equipment and all other items of personal
property being moved or transferred shall enter and leave the Building
solely through such entrance as may be designated from time to time by
Landlord for such purposes;
-7-
B. Tenant shall be responsible for the active supervision
(on-site) of all workmen and others performing the move, and shall
indemnify and hold harmless Landlord against and from all liability for
damage to property (whether belonging to Xxxxxxxx, other tenants or any
other person) and injuries to persons in connection with the move and
the actions or failure to act of or by those performing the move;
C. Tenant shall be responsible for any damage to the Building,
the common areas thereof, the Premises or the premises and property of
other tenants caused by or incurred in connection with the move or the
activities connected therewith. Landlord shall perform such
inspection(s) as Landlord in its sole discretion shall determine to be
appropriate, and shall deliver to Tenant an invoice for the repair of
all such damage or the replacement, if necessary, of damaged items, if
any. All determinations of the extent of damage and the costs of repair
or replacement shall be made by Landlord in its sole discretion. The
invoiced sums shall constitute amounts included within the payable under
paragraph 10 above.
15. ACCESS TO PREMISES. Tenant shall permit Landlord and its agents
access to the Premises at all reasonable hours for the purpose of examining the
Premises, erecting and maintaining pipes and conduits in and through the
Premises, and making any repairs, alterations or additions which the Landlord
may deem necessary for the safety, preservation or improvement of the Premises
or the Building and Landlord shall be allowed to take all material into and upon
the Premises that may be required therefor and to perform such acts without
the same constituting an eviction of Tenant in whole or in part and the rent
reserved shall in no wise xxxxx while said repairs, alterations, improvements
or additions are being made. Nothing herein contained shall be deemed to
impose upon Landlord any obligation for the care, supervision or repair of
the Building or the Premises which is not elsewhere specifically set forth in
the Lease.
16. EMINENT DOMAIN. If the Premises are taken by any public authority
under power of eminent domain, the term of this Lease shall cease as of the day
possession shall be taken by such authority and Tenant shall be entitled to a
pro rata refund of any rent paid in advance. All damages awarded for such
taking shall belong to and be the property of Landlord, irrespective of the
basis upon which they are awarded, except that Landlord shall not be entitled to
any portion of the award made to Tenant for removal and reinstallation of
fixtures, or moving expenses.
17. ASSIGNMENT OR SUBLETTING. Xxxxxx agrees not to assign or in any
manner transfer this Lease or any estate or interest therein without the
previous written consent of Landlord, and not to sublet the Premises or any part
or parts thereof or allow anyone to use or
-8-
to come in with, through or under it without like consent. Said consent shall
not be unreasonably withheld. One such consent shall not be deemed to be a
consent to any subsequent assignment, subletting, occupation or use by any other
person, and no consent shall be deemed to relieve Tenant of any obligations
under this Lease unless expressly provided in such consent. The acceptance of
rent from any assignee, subtenant or occupant shall not constitute a release of
Tenant from the further performance of the covenants of Tenant contained in this
Lease. The sale or sales aggregating fifty (50%) percent or more of the capital
stock of Tenant (if Tenant be a non-public corporation) or the sale or sales
aggregating fifty (50%) percent or more of the partnership interests in Tenant
(if Tenant be a partnership) shall be deemed to be an assignment of this Lease.
Notwithstanding the foregoing provisions, Tenant may assign this Lease or sublet
the Premises or any portion thereof, without Landlord's consent, to any
corporation which controls, is controlled by or is under common control with
Tenant, or to any corporation resulting from the merger or consolidation with
Tenant, or to any person or entity which acquires all the assets of Tenant as a
going concern of the business that is being conducted on the Premises, provided
that said assignee assumes, in full, the obligations of Tenant under this Lease.
18. SURRENDER. At the expiration of the term of this Lease, or upon the
sooner termination thereof, Tenant shall surrender the Premises broom clean and
in as good condition and repair as they were at the time Tenant took possession,
reasonable wear and tear excepted, and shall promptly upon surrender deliver all
keys and building security cards for the Premises to Landlord at the place then
fixed for payment of rent.
19. BREACH; INSOLVENCY; RE-ENTRY.
A. If any rent payable by Tenant to Landlord (including but not
limited to Base Rent and additional rental payable under paragraphs 8,
9, 10, 14, 21 and 26) shall be and remain unpaid for more than five (5)
days after written notice that the same is due and payable, or if Tenant
shall violate or default in the performance of any of the other terms,
provisions, covenants, agreements, stipulations, rules or conditions
herein, and such violation or default shall continue for a period of
thirty (30) days after written notice of such violation or default, or
if Tenant shall permit this Lease to be taken under any writ of
execution, or shall abandon the Premises, then, in addition to and not
as a limitation on or in lieu of such other or additional remedies as
may be available to Landlord by law, Landlord shall have the right to
declare this Lease forfeited and the term ended, or to re-enter the
Premises and remove all persons and chattels therefrom, or to exercise
all such remedies, and Landlord shall not be liable for damages to
person or property
-9-
by reason of any such re-entry or forfeiture. Tenant, by the execution of
this Lease, waives notice of re-entry by Xxxxxxxx. In the event of such
re-entry by Landlord without declaration of forfeiture, the liability of
Tenant for the rent provided herein shall not be relinquished or
extinguished for the balance of the term of this Lease, and any rentals
prepaid may be retained by Landlord and applied against the costs of
re-entry, or as liquidated damages, or both; Tenant will pay, in addition
to the rentals and other sums agreed to be paid hereunder, reasonable
attorneys' fees, costs and expenses in any suit or action instituted by
Landlord to enforce the provisions of this Lease or the collection of the
rentals due Landlord hereunder.
B. In the event of declaration of forfeiture at or after the time of
re-entry, Landlord may re-let the Premises or any part thereof for a term
or terms and at a rent which may be less than or exceed the balance of the
term of and the rent reserved under this Lease, the rent for which the
Premises are so re-let being prima facie the fair and reasonable rental
value thereof and, in the event of such declaration, Tenant shall pay to
Landlord as liquidated damages for Tenant's default hereunder, at
Landlord's option:
(1) Any deficiency between the total rent reserved hereunder and
the net amount, if any, of the rents collected on account of any lease
or leases of the Premises for what would otherwise have constituted
the balance of the term of this Lease; in computing such liquidated
damages, there shall be added to such deficiency any expenses which
Landlord may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage fees and expenses, advertising
and for keeping the Premises in good order or for preparing the same
for re-letting, and any such liquidated damages shall be paid in
monthly installments by Tenant on the Rent Day, and any suit brought
to collect the deficiency for any month shall not prejudice the right
of the Landlord to collect the deficiency for any subsequent month by
a similar proceeding; or
(2) In a lump sum, the worth at the time of such declaration of
any deficiency between (a) the total rent reserved hereunder, and (b)
the fair and reasonable rental value of the Premises net of reasonably
foreseeable expenses of re-letting.
C. Landlord shall in no event, whether or not forfeiture has been
declared, be responsible in any way whatsoever for failure to re-let the
Premises or, in the event that the Premises are re-let, for failure to
collect the rent thereof under such re-letting. The failure of Landlord to
re-
-10-
let the Premises or any part thereof shall not release or affect Tenant's
ability for rent or damages.
D. Notwithstanding any of the foregoing, any and all indebtedness
owing by Tenant to Landlord pursuant to the terms of this Lease which
remains unpaid for a period of five (5 days after it first becomes due and
payable shall bear interest from and after the elapse of such five-day
period at a rate which shall be the greater of eleven (11%) percent per
annum of four (4%) percent per annum over the prime interest rate charged
from time to time by Manufacturers National Bank of Detroit to its best
commercial customers, but not in excess of the maximum rate permitted by
law.
20. BANKRUPTCY OR INSOLVENCY.
A. CONDITIONS TO THE ASSUMPTION AND ASSIGNMENT OF THE LEASE UNDER
CHAPTER 7 OF THE BANKRUPTCY CODE. 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 of paragraph 19.02 and paragraph 19.04 hereof are
satisfied. If such Trustee shall fail to elect or 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 obligations
to the Tenant or Trustee, and this Lease shall be canceled, but Xxxxxxxx's
right to be compensated for damages in such liquidation proceeding shall
survive.
B. CONDITIONS TO THE ASSUMPTION OF THE LEASE IN BANKRUPTCY
PROCEEDINGS. 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 of the Bankruptcy
Code and is transferred to Chapter 11 or 13, the Trustee or the Tenant, as
Debtor-In-Possession, must elect to assume this Lease within 75 days from
the date of the filing of the Petition under Chapter 11 or 13, or the
Trustee or Debtor-In-Possession shall be deemed to have rejected this
Lease. No election by the Trustee or Debtor-In-Possession to assume this
Lease, whether under Chapter 7, 11 or 13, shall be effective unless each
of the following conditions, which Landlord and Tenant acknowledge are
commercially reasonable in the context of a bankruptcy proceeding of
Tenant, have been satisfied, and Xxxxxxxx has so acknowledged in writing:
-11-
(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 will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the
Trustee 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 Xxxxxxxx's written statement of pecuniary loss sent to
the Trustee or Debtor-In-Possession.
(3) The Trustee or the Debtor-In-Possession has provided
Landlord with adequate assurance of the future performance of each of
the Tenant's, Trustee's or Debtor-In-Possession's obligations under
this Lease, provided, however, that:
(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 and other monetary charges
accruing under this Lease; and
(b) The Trustee or Debtor-In-Possession shall also pay in
advance the monthly installments of Additional Rent required
under paragraph 25.
(c) The obligations imposed upon the Trustee 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 Building.
(5) 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:
-12-
(a) 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
(b) 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
the Tenant, Trustee or Debtor-In-Possession, 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.
C. 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 Xxxxxx as Debtor-In-Possession under the
provisions of paragraph B 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, no later than thirty (30) days after the occurrence of either of
such events.
D. CONDITIONS TO THE ASSIGNMENT OF THE LEASE IN BANKRUPTCY
PROCEEDINGS.
(1) If the Trustee or Debtor-In-Possession has assumed the Lease
pursuant to the terms and provisions of paragraphs A or B herein, for
the purpose 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 paragraph D of future
performance of all of the terms, covenants and conditions of this
Lease to be performed by Xxxxxx.
(2) 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
-13-
conditions have been satisfied, and Xxxxxxxx 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 by Landlord to be
sufficient 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 standards of credit
worthiness; and
(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.
E. 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 Base Rent and
other monetary obligations of Tenant for the payment of additional rent
hereunder.
F. TENANT'S INTEREST NOT TRANSFERABLE BY VIRTUE OF STATE
INSOLVENCY LAW WITHOUT LANDLORD'S CONSENT. Neither Tenant's interest in
the Lease, nor any lesser interest of Tenant herein, nor any estate of
Tenant hereby created, shall pass to any trustee, receiver, assignee for
the benefit of creditors, or 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 (hereinafter referred to as the "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 such consent.
G. 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
-14-
guarantor of Tenant's obligations hereunder (hereinafter referred to as the
"guarantor") shall be adjudicated insolvent pursuant to the provisions of
any present or future insolvency law under state law, or if any proceedings
are filed by or against the 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 the guarantor shall be appointed
under state law by reason of Tenant's or the guarantor's insolvency or
inability to pay its debts as they become due or otherwise, or if any
assignment shall be made of Tenant's or the 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 thirty
(30) days after the occurrence of such event.
21. LANDLORD'S RIGHT TO CURE DEFAULTS. If Tenant defaults in the
performance of any provision of the Lease, Landlord shall have the right to cure
such default for the account of Tenant, upon ten (10) days' prior written notice
to Tenant, and Tenant shall within five (5) days after being billed therefor
reimburse Landlord for any expenditure made by Landlord in order to cure such
default.
22. REMOVAL OF TENANT'S PROPERTY UPON TERMINATION. If Tenant shall fail
to remove all of Tenant's property or property of others in Tenant's possession
from the Premises upon termination of this Lease for any cause whatsoever,
Landlord may at its option remove the same in any manner that it chooses and
store such property without liability to Tenant for loss thereof, and Xxxxxx
agrees to pay Landlord on demand any and all expenses incurred in such removal,
including court costs and attorneys' fees and storage charges on such property
for any length of time such property shall be in Landlord's possession. Tenant
shall indemnify and hold Landlord harmless for any claim by third parties with
respect to property owned or claimed by them, left in the Premises by Xxxxxx,
and removed by Landlord pursuant to this paragraph. Under no circumstances
shall Landlord be obligated to retain any property left on the Premises or in
Landlord's possession longer than two (2) months after termination of this
Lease, for whatever cause, and Landlord may thereafter dispose of such property
in any manner it deems fair, including public or private sale or by destruction,
discard or abandonment and the proceeds of any such sale shall be applied
against any sums due Landlord under this Lease.
23. SECURITY. Tenant grants Landlord, as security for the rent and other
amounts payable hereunder and for the performance by Tenant of every other
obligation herein contained, a security interest and lien upon all the personal
property and fixtures, or whatever nature, which are or may be placed on the
Premises by Xxxxxx, and a security interest under the Uniform Commercial Code in
accounts receivable and contract rights of Tenant, which lien
-15-
and security interest may be enforced on the nonpayment of any rent or other
amount due under this Lease or the nonperformance of any obligations herein
contained, by the taking and selling of such property or any of the same at
private sale for such price as Landlord may obtain and the application of the
proceeds of such sale upon any amount due under this Lease from Tenant to
Landlord and upon the expenses incident to the removal and sale of such
property. Said lien shall be subordinate and subject to any continuing line
of credit lien which Tenant may have or may create on said personal property
and fixtures. Notice of such sale shall be served upon Tenant by posting on
the Premises or by leaving the same at or mailing the same to Xxxxxx's
address given herein at least seven (7) days in advance of such sale.
Landlord may retain in its possession any property of Tenant after any sum
payable hereunder shall have become due and Landlord shall not be liable in
any action of claim and delivery or similar remedy because of such retention.
Tenant shall indemnify and hold harmless Landlord from damages or claims by
any third parties claiming rights in property sold or disposed of by Landlord
pursuant to this section.
24. HOLDING OVER. In the event Tenant remains in possession of the
Premises after the expiration of this Lease and without the execution of a
new lease, it shall be deemed to be occupying the Premises as a tenant from
month, subject to all conditions, provisions and obligations of this Lease
insofar as the same can be applicable to a month-to-month tenancy except that
the Base Rent shall be one hundred fifty (150%) percent of the monthly
installment amount set forth in paragraph "C" of the Summary (or in the event
of a renewal term, then as established pursuant to paragraph H of the
Summary) for the period of any such month-to-month tenancy.
25. SUBORDINATION.
A. MORTGAGES. This Lease is and shall be subject and subordinate
at all times to the lien of any institutional mortgage(s), including all
renewals, modifications, consolidation, replacements or extensions
thereof, now or hereafter placed on the Building. Institutional mortgage
shall mean a mortgage made by a bank (which term includes a federal or
state savings and loan association or any mortgage company which is a
subsidiary of a bank), trust company, insurance company, educational
institution, pension, retirement or welfare fund, charity, endowment
fund or foundation, or any other nonprofit organization, whether similar
or dissimilar to those enumerated.
B. ATTORNMENT. Tenant shall attorn to any purchaser of the
Premises at foreclosure sale or lessor of a ground lease as Landlord
under this Lease subject to all of the terms and conditions of this
Lease. Tenant shall, from time to time, within 10 days after request
by Xxxxxxxx, execute and deliver
-16-
to Landlord an attornment agreement which confirms the foregoing in
such form as Landlord may reasonably request, and Tenant hereby
irrevocably appoints Landlord to be Tenant's attorney-in-fact to
execute such instrument on behalf of Tenant in the event Tenant
shall fail to do so within said ten (10) days.
26. ADDITIONAL RENT.
A. DEFINITIONS.
(1) "Real Estate Taxes" shall mean all real estate taxes and
assessments, general and special, and all other taxes, imposts,
assessments or other charges which shall be assessed, levied or
imposed upon the Building and the Real Estate, or any part thereof
or any estate, right or interest therein, but excluding taxes based
upon the gross or net income of Landlord. The "Building" shall mean
the building of which the Premises are a part, and "Real Estate"
shall mean the land upon which the Building is situated and, as and
to the extent designated by Landlord, the parking areas, walks,
drives, plazas, landscaped areas and other common areas in the
Office Park serving the Building. The Landlord may take the benefit
of the provisions of any statute or ordinance permitting any
assessment to be paid over a period of time and the installments
of such assessment which become due and payable during the term
of this Lease, or any extension hereof, together with the interest
thereon shall be included in the calculation of Real Estate Taxes.
In the event that the United States or the city, county, state or
other political subdivision of any governmental authority having
jurisdiction thereover impose a tax, assessment or surcharge of any
kind or nature upon, against, measured by or with respect to the
rentals payable by the tenants of the Building or on the income
of Landlord derived from the Building, (including that portion of
Landlord's Michigan Single Business Tax for each calendar year
of this Lease attributable to the Building and the Real Estate,
computed as if the Building and the Real Estate were Landlord's
only business activity), or with respect to the Landlord's
ownership of the Building and the Real Estate, either by way of
substitution for all or any part of the taxes and assessments
levied or assessed against the Building and the Real Estate, or
in addition thereto, such tax, assessment or surcharge shall be
deemed a Real Estate Tax for purposes of this paragraph 26.
Costs, expenses, and attorney's fees incurred by Landlord in
connection with negotiations for reduction in the assessed
valuation of the Real Estate and the Building, and any protest
or contest of Real Estate Taxes and/or assessments, shall
-17-
also be deemed Real Estate Taxes for purposes of this paragraph 26.
(2) "Operating Expenses" shall mean any and all expenses
(ordinary and/or extraordinary) for operation, maintenance and
administration of the Building and the Real Estate as determined
by standard accounting practices and shall include the following by
way of illustration, but not limitation: personal property taxes
(except those payable by Tenant); payments made by Landlord for
common area (including but not limited to parking lot) maintenance,
repairs, replacements and services; payments made by Landlord for
maintenance, repair, replacements and services for or in connection
with parking; water and sewer charges; charges for repair,
replacement and maintenance, including the amortization over a
reasonable period (including interest) of (1) any equipment and
facilities acquired by Landlord which reduces energy consumption,
and (2) any other capital improvement which reduces other operating
expenses, or is made by Landlord after the date of this Lease and
required under any law or regulation not applicable to the Building
at the time it was constructed; insurance premiums for the Building
and Real Estate Policy acquired by Landlord pursuant to Section 8
above as well as any other insurance reasonably required by Landlord
relating to the Premises, Building, or Real Estate; license fees;
permit and inspection fees; charges for heat, light, power and
steam or other fuels; janitorial service; labor; wages and salaries
(including employee benefits) of any building superintendent and
maintenance employees; air conditioning, heating, ventilating and
all other supplies and materials necessary for operation of the
Building equipment; depreciation of all hand tools and other movable
equipment and personal property which is or should be capitalized
on the books of Landlord and the cost of hand tools and other movable
equipment and personal property which need not be so capitalized, as
well as the cost of maintaining all such hand tools and movable
equipment, exterminating services; security services; rubbish and
snow removal; telephone; landscaping costs; and a reasonable
allowance for management expenses. Except as provided above, the
term Operating Expenses shall not include depreciation on the
Building or building equipment, capital improvement costs, mortgage
interest and principal payments, real estate brokers' commissions
paid with respect to leasing or the cost of Tenant alterations.
(3) "Tenant's Proportionate Share" shall mean the percentage
equal to the ratio that the number of Rentable
-18-
Square Feet contained in the Premises bears to the total number of
Rentable Square Feet contained in the entire Building. For purposes
of this Lease, Rentable Square Feet shall mean the square footage of
the Premises or Building less all common areas.
(4) "Tax and Operating Expense Statements" shall mean written
statements, certified by Landlord, setting forth the total amounts of
Real Estate Taxes and Operating Expenses for each calendar year which
includes any portion of the Lease term or any renewal or extension
thereof and further setting forth Tenants Proportionate Share of such
taxes and expenses.
B. TAXES AND ASSESSMENTS BY LANDLORD. Real estate taxes and
assessments shall be paid by Landlord to appropriate governmental
authorities, and Tenant shall pay Tenants Proportionate Share of the amount
thereof to Landlord by Tenant as set forth below as an additional rent.
C. PAYMENT TO LANDLORD. At or prior to the Commencement Date,
Landlord shall estimate the Annual Tax and Operating Expenses for the
partial calendar year including the Commencement Date, and shall submit a
statement of such estimate to Tenant. Said statement shall be deemed the
Tax and Operating Expense Statement for said partial calendar year.
Landlord shall deliver to Tenant, within ninety (90) days of the close of
each calendar year (or of termination or expiration of the Lease), the Tax
and Operating Expense Statement for said period. It shall not be a
condition to Tenant's obligation to pay the amounts set forth in the Tax
and Operating Expense Statements that Landlord has not yet paid the Real
Estate Taxes. The amount so set forth is hereinafter referred to as the
"Annual Tax and Operating Expenses" for said calendar year. Tenant shall
pay to Landlord the Annual Tax and Operating Expenses, as follows:
(1) Within fifteen (15) days following delivery of such
statement, the amount of Annual Tax and Operating Expense for the
prior full or partial calendar year, less that portion thereof, if
any, already paid on a monthly basis during such prior full or partial
calendar year; and
(2) Within fifteen (15) days following delivery of such
statement, an amount equal to one hundred and ten per cent (110%) of
the Tenant's monthly PRO RATA portion of such Annual Tax and Operating
Expenses for the prior calendar year multiplied by the number of
months in the current calendar year prior to delivery of the
statement, less that portion thereof, if any, already paid on a
monthly basis; and
-19-
(3) On the Commencement Date and on the first day of each month
thereafter, until receipt of the next year's Tax and Operating Expense
Statement, an amount equal to one hundred ten percent (110%) of the
Tenant's monthly PRO RATA portion of such Annual Tax and Operating
Expenses.
In the event that the amount theretofore paid hereunder for any calendar
year shall exceed the amount determined in Landlord's annual statement, the
excess shall be credited on the installments of additional rent next maturing.
The obligation of Tenant to pay any such Annual Tax and Operating Expenses
attributable to any portion of the term of this Lease shall survive termination
or expiration of this Lease
27. QUIET ENJOYMENT. Landlord covenants that Tenant may peaceably and
quietly enjoy the Premises, subject to the terms, provisions, covenants,
agreements, stipulations, rules or conditions of this Lease, upon Xxxxxx's
paying the Base Rent and additional rent and observing and performing all the
terms, provisions, stipulations, rules, agreements, covenants and conditions, on
Tenant's part to be observed and performed, without molestation or hindrance by
any person holding under or through Landlord.
28. SECURITY DEPOSIT.
A. In the event Landlord has collected a Security Deposit from
Tenant, which shall be evidenced by a receipt therefor, it is agreed that:
B. The Security Deposit may be commingled with other funds of
Landlord, and Tenant shall not be entitled to any interest thereon or to
any interest earned by Landlord thereon. No successor in title to the
party which, as Landlord, collected such Security Deposit shall be liable
for the return thereof unless such successor has received such Security
Deposit.
C. In the event that Tenant defaults in respect of any of the terms,
provisions, covenants, agreements, stipulations, rules or conditions of
this Lease, Landlord may use, apply or retain the whole or any part of the
amount deposited as security hereunder for the payment of any Base Rent and
additional rent in default or for any other sum which Landlord may expend
by reason of Tenant's default, including any damages or deficiency in the
re-letting of the Premises. If Tenant shall fully comply with all the
terms, provisions, agreements, stipulations, rules, covenants and
conditions of this Lease, the security, or balance thereof, shall be
returned to Tenant without interest after the termination of
-20-
this Lease and after the removal of Xxxxxx and surrender of possession of
the Premises to Landlord. In the absence of evidence satisfactory to
Landlord of an assignment of the right to receive the security, or the
remaining balance thereof, Landlord may return the security to the original
Tenant regardless of one or more assignments of the Lease itself.
29. NO REPRESENTATIONS BY LANDLORD. Except as herein expressly stated,
Xxxxxxxx makes no representation with respect to the Building or the Premises,
and by taking possession of the Premises Tenant shall be deemed to have accepted
the Premises in the condition then existing.
30. ESTOPPEL CERTIFICATE. Tenant from time to time shall, upon request
by Landlord, execute, acknowledge and deliver to Landlord a written statement
certifying that this Lease is unmodified and in full force and effect (or
that the same is in full force and effect as modified, listing the
instruments of modification), the dates to which rent and other charges have
been paid; that Landlord is not in default hereunder (or specifying the
nature of any default(s) Tenant claims to exist at the time of such
certification), and such other matters pertaining to this Lease and Xxxxxx's
occupancy of the Premises as Landlord may request, it being intended that any
such statement delivered pursuant to this paragraph 30 may be relied upon by
Landlord, a prospective purchaser or mortgagee of Landlord's interest or
assignee of any mortgage upon Xxxxxxxx's interest in the Building. Tenant
shall not be entitled to withhold such statement on the basis of any claimed
default by Landlord hereunder, nor on the basis of any delay in Tenant's
occupancy or possession of the Premises nor of any unfinished work on or in
connection with the Premises or the Building.
31. GENERAL. Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders. The covenants, agreements and stipulations of the Tenant
are joint and several. One or more waivers of any covenant, term, provision,
agreement, rule, stipulation or condition by Landlord shall not be construed
as a waiver of a subsequent breach of the same, and the consent or approval
by Landlord to or of any act, neglect or default by Tenant. The topical
headings are for convenience only and do not define, limit or construe the
contents of any paragraphs or clauses. This Lease can only be modified or
amended by an agreement in writing signed by the parties hereto. All
provisions hereof shall be binding upon the heirs, executors, administrators,
personal representatives, successors and assigns of each party hereto. This
Lease shall be construed and enforced in accordance with the laws of the
State of Michigan.
-21-
32. BILLS AND NOTICES. Bills, statements, notices or communications
which Landlord may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if in writing, delivered to Tenant
personally or sent by registered, certified or first class mail, postage
prepaid, addressed to Tenant at the address set forth on the first page of
this Lease, or at such other address as Tenant shall designate by written
notice, and the time of the rendition of such bill or statement of the
giving of such notice or communication shall be deemed to be the time when
the same is delivered to Tenant or placed in the mail as herein provided.
If Xxxxxx is occupying the Premises, personal delivery to the Premises by
Landlord shall be deemed sufficient hereunder. Any notice by Tenant to
Landlord must be registered, certified or first class mail, postage
prepaid, to Landlord at the address set forth on the first page of this
Lease, or at such other address as Landlord shall designate by written
notice.
33. RULES AND REGULATIONS. The rules and regulations applicable to the
Premises are set forth in Exhibit F attached hereto and made a part hereof as
fully as though herein written. Tenant grants to Landlord the right to make
such changes therein from time to time as in Landlord's judgment, reasonably
exercised, may be appropriate. Xxxxxx agrees to comply with and abide by all
such rules and regulations, including amendments thereof. Any costs incurred by
Landlord as a result of Xxxxxx's non-compliance with these Rules and
Regulations, or any amendment thereof, shall be paid by Xxxxxx as additional
rent within five (5) days of receipt by Tenant of Landlord's written request for
payment.
34. NAME OF BUILDING. Landlord shall have the right from time to time to
name the building and to change the name of the Building, and shall not be
responsible for costs or damages, if any, claimed by Xxxxxx as a consequence
thereof.
35. PREVENTING REMOTE VESTING. Notwithstanding any other provisions of
this Lease, if the term of this Lease shall not commence within five (5) years
from the date hereof, this Lease shall be deemed terminated five (5) years from
the date hereof without necessity of any notice or act by Landlord or Tenant.
It is the intention of this paragraph to prevent this Lease from becoming
unenforceable by reason of any claim that this Lease might violate the rule
against perpetuities.
36. DEFINITION OF LANDLORD, LANDLORD'S LIABILITY.
A. The term "Landlord" as used in this Lease so far as covenants,
agreements, stipulations or obligations on the part of the Landlord are
concerned shall be limited to mean and include only the owner or owners of
the Building at the time in question and in the event of any transfer or
transfers of such ownership the Landlord herein named (and in case of any
subsequent transfers or conveyances the then grantor) shall be
-22-
automatically freed and relieved from and after date of such transfer or
conveyance of all personal liability as respects the performance of any
covenants or obligations on the part of the Landlord contained in this
Lease thereafter to be performed.
B. If Landlord shall fail to perform any covenant, provision,
agreement, stipulation, 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 may be satisfied
only out of the proceeds of sale received upon execution of such judgment
and levied thereon against the right, title and interest of Landlord in the
Building 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 such property, and Landlord shall not be liable for any
deficiency, except to the extent of any Security Deposit collected pursuant
to paragraph 27 and retained by Xxxxxxxx contrary to the provisions of
paragraph 27 of this Lease.
C. In no event shall any party becoming the Landlord under this
Lease by purchase upon foreclosure, deed in lieu of foreclosure, or
otherwise, be liable to Tenant for any default occurring prior to the date
on which such party became the Landlord, and there shall be no offset
against rent for any unsatisfied liabilities or unperformed obligations of
any previous landlord.
37. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto and
forming a part hereof set forth all of the covenants, agreements, stipulations,
promises, conditions and understandings between Landlord and Tenant concerning
the Premises and the Building, and there are no covenants, agreements,
stipulations, promises, conditions or understandings, either oral or written,
between them other than herein set forth.
38. CHANGES TO LEASE REQUIRED BY LENDER. This Lease shall be subject to
modification of non-economic terms contained herein at the request of any
institutional mortgage lender furnishing construction or permanent financing to
Landlord in connection with the Building.
39. MORTGAGEE PROTECTION CLAUSE. Xxxxxx agrees to give any mortgagees
and/or trust deed holders, by registered mail, a copy of any notice of default
served upon the Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of a Notice of Assignment or Rents and Leases, or
otherwise), of the address of such mortgagees and/or trust deed holders. Xxxxxx
further agrees that if Xxxxxxxx should have failed to cure such default within
the time provided for in this Lease, then the
-23-
mortgagees and/or trust deed holders shall have an additional thirty (30) days
within which to cure such default, or if such default cannot be cured within
that time, such additional time as may be necessary, if within such thirty (30)
days any mortgagee and/or trust deed holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including, but not limited
to commencement of foreclosure proceedings, if necessary, to effect such cure),
in which event this lease shall not be terminated while such remedies are being
so diligently pursued.
LANDLORD:
AUBURN REAL ESTATE VENTURES
LIMITED PARTNERSHIP
By: Auburn Partners, Inc.
Its: General Partner
By
----------------------------------
Xxxxxxx Xxxxx
Its Authorized Officer
TENANT:
MICHIGAN EDUCATORS INSURANCE
AGENCY, INC.
By: /s/
---------------------------------
Its: PRES. & CEO
---------------------------
-24-
EXHIBIT A
Situated in the City of Auburn Hills, Oakland County, State of Michigan.
A part of the Northwest 1/4 of Section 25, T3N, R10E, City of Auburn
Hills, Oakland County, Michigan, being described as: Commencing at the
North 1/4 corner of said Section 25; thence along the North-South 1/4
line, South 4 degrees 29 minutes 34 seconds East, 394.08 feet; thence
South 84 degrees 32 minutes 47 seconds West, 167.02 feet to the
westerly right-of-way line of Squirrel Road and the point of
beginning, thence along said westerly right-of-way line of Squirrel
Road (said line being 167.00 feet West of and parallel to the
North-South 1/4 line of said Section 25) South 4 degrees 29 minutes 34
seconds East, 403.60 feet; thence South 82 degrees 21 minutes 06
seconds West, 574.26 feet; thence North 5 degrees 29 minutes 15
seconds West, 428.31 feet; thence North 84 degrees 46 minutes 26
seconds East, 207.98 feet, thence North 84 degrees 59 minutes 26
seconds East, 250.72 feet, thence North 84 degrees 32 minutes 47
seconds East, 122.17 feet to the point of beginning.
EXHIBITS B, C, D AND E
Will be agreed upon by the
parties prior to the
Commencement Date
