LEASE AGREEMENT
Exhibit 10.2
THIS LEASE made this 18th day of June, 2000, by and
between Jagar, L.L.C., a Michigan limited liability company, whose address is
27750 Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 the Lessor,
hereinafter designated as the Landlord, and Picometrix, Inc., a Michigan
Corporation, whose address is 0000 Xxxxxxx, Xxx Xxxxx, Xxxxxxxx 00000, the
Lessee, hereinafter designated as the Tenant.
ARTICLE I
DESCRIPTION
WITNESSETH: The Landlord, in
consideration of the rents to be paid and the covenant and agreement to be
performed by the Tenant, does hereby lease unto the Tenant the following
described premises situated in the City of Xxx Arbor, County of Washtenaw, State
of Michigan, to wit: approximately 25802 square feet within a multi-tenant
facility as more fully set for in Exhibit A (the "leased premises"), Tenant's
facility is more commonly known as 0000 Xxxxxxxxx, Xxxxx
000.
ARTICLE II RENT AND
TERMS
Section 1. The original term (the
"Term") of this Lease will commence (the "Commencement Date") on the earlier of:
(i) the date Tenant takes possession of the leased premises; or (ii) the date
Landlord tenders possession of the leased premises to Tenant "ready for
occupancy" as defined below. The Lease shall end on the last day of the one
hundred twentieth (120) month. If the Commencement Date is other than the first
day of a calendar month, the Term will be extended to terminate on the last day
of the calendar month in which it would otherwise terminate under the preceding
sentence. The leased premises will be conclusively deemed "ready for occupancy"
under this Article II Section 1 as soon as the work (excluding the clean rooms)
(the "Improvements") set forth in Exhibit "B" has been substantially completed
and after the issuance of a temporary certificate of occupancy for the leased
premises by the City of Xxx Arbor. The leased premises will not be considered
unready or incomplete if only minor or unsubstantial details of construction,
decoration or mechanical adjustments remain to be done within the Improvements,
or if only landscaping or exterior trim remains to be done outside the
Improvements, or if the delay in the availability of the leased premises for
Tenant's occupancy is caused in whole or in part by Tenant. Landlord will
require its contractor to cooperate with Tenant's installers of equipment, trade
fixtures, furnishings and decorations attached to the Improvements to the
maximum extent possible, but Tenant agrees that delay of or interference with
construction caused by such installers will not postpone the Commencement Date
or the obligation to begin paying rent. By occupying the leased premises, Tenant
will be deemed to have accepted the leased premises and acknowledged that they
are in the condition called for in this Lease, subject only to "punch list"
items (as the term "punch list" is customarily used in the construction
industry) identified by Tenant by written notice delivered to Landlord within
thirty (30) days after the date Landlord tenders possession of the leased
premises to Tenant and accepted by Landlord as its responsibility hereunder.
Landlord will use its best efforts to complete any “punch list” items identified
by Tenant within thirty (30) days of receipt of such notice.
Section 2. Should the term of this
Lease commence on a day other than the first day of a calendar month, then the
rental for such month shall be prorated on a daily basis based upon a thirty
(30) day calendar month. Should any lease year contain less than twelve (12)
calendar months, said annual rental shall be appropriately prorated. The Tenant
shall pay at the time of execution of this Lease the first full month's rent of
Thirty Two Thousand Nine Hundred Nineteen and 5/100 ($32,919.05) Dollars,
together with a one (1) month security deposit in the amount of Thirty Two
Thousand Nine Hundred Nineteen and 5/100 ($32,919.05) Dollars for a total amount
of Sixty Five Thousand Eight Hundred Thirty Eight and 10/100 ($65,838.10)
Dollars, receipt of which is hereby acknowledged. The remaining rental due
hereunder shall be paid as follows:
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Months 2 through the end of
Lease Term:
Tenant shall pay as base
rental (the "Base Rent") during this one hundred twenty (120) month period the
sum of Two Million Nine Hundred Ninety Eight Thousand One Hundred Ninety Two and
40/100 ($2,998,192.40) Dollars, payable in monthly installments of Twenty Four
Thousand Nine Hundred Eighty Four and 94/100 ($24,984.94) Dollars, due and
payable on the first day (1st) day of each and every month commencing as defined
in Article II, Section I, (which first month's rental has already been received)
for the next one hundred nineteen (119) consecutive months.
In the event that Tenant does
not pay, when due and payable, or within seven (7) days thereafter, any rent or
any additional rent, Landlord may charge interest thereon in accordance with
Article XXXV. This right to charge interest in accordance with Article XXXV shall
be an addition to any other remedies that Landlord may have under the terms of
this Lease Agreement or otherwise. Rent is payable at 00000 Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, or at such other place as Landlord may
give written notice to Tenant.
Section 3. The Improvements will be
completed on or before December 1, 2000 (the “Scheduled Completion Date”). If in
good faith Landlord is delayed or hindered in construction by any labor dispute,
strike, lockout, fire, unavailability of material, severe weather, acts of God,
restrictive governmental laws or regulations, riots, insurrection, war or other
casualty or events or a similar nature beyond its reasonable control, or as a
result of change orders or other requests by or acts of Tenant (collectively the
"Excusable Event"), the date for completion shall be extended for the period of
delay caused by the Excusable Event. The Scheduled Completion Date as extended
as a result of the occurrence of an Excusable Event or with the consent of
Tenant, is herein referred to as the Completion Date.
Section 4. The Tenant hereby hires the
said premises for the said term as above mentioned and covenants well and truly
to pay, or cause to be paid unto the Landlord at the dates and times above
mentioned, the rent above reserved. (See Security Provision attached hereto and
made a part of this Lease.)
ARTICLE III
TAXES
Section 1. Tenant shall pay, as
additional rent, to Landlord during the term of this Lease its proportionate
share of all taxes and assessments which may be levied or assessed by any lawful
authority, for each calendar year during the term hereof, against the land,
building or improvements comprising the leased premises. (Such taxes and
assessments being hereinafter called "Taxes".) Tenant's proportionate share of
all taxes incurred by Landlord under this Article III shall be 51.24%. Should
the State of Michigan or any political subdivision thereof or any governmental
authority having jurisdiction thereover, now or hereafter impose a tax and/or
assessment of any kind or nature upon, against or with respect to the rentals
payable by Tenant to Landlord or any revenues of Landlord derived from the
leased premises or with respect to Landlord's or the individuals or entities
which form the Landlord herein, ownership of the land and building or buildings
comprising the leased premises, either by way of substitution for all or any
part of the taxes and assessments levied or assessed against such land and such
building or buildings, or in addition thereto, such tax and/or assessment shall
be deemed to constitute a tax and/or assessment against such land and such
building or buildings for the purpose of this paragraph and Tenant shall be
obligated to pay it as provided herein; provided, however, Tenant shall not be
required to pay any share of Landlord's federal, state or local income taxes. In
addition, should any governmental authority having jurisdiction thereover impose
a tax or surcharge of any kind or nature upon, against or with respect to the
parking areas or the number of parking spaces comprising the leased premises,
such tax or surcharge shall likewise be deemed a constituted tax and/or
assessment against such land and such building or buildings for the purpose of
this paragraph and Tenant shall be obligated to pay such tax provided
herein.
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Section 2. At the option of Landlord,
Tenant shall pay all taxes within ten (10) days of presenting the tax xxxx, or
the taxes shall be paid in monthly installments on or before the first day of
each calendar month, in advance, in an amount estimated by Landlord. Upon
receipt of all tax bills and assessment bills attributable to any calendar year
during the term hereof, Landlord shall furnish Tenant with a written statement
of the actual amount of Tenant's share of the premises taxes of such calendar
year. In the event the total amount of monthly installments paid by Tenant
pursuant to this Article does not equal the sum due from Tenant as shown on such
statement, then Tenant shall pay to Landlord the deficiency within ten (10) days
after demand therefor by Landlord; or Landlord shall credit such excess to the
next installment of rent due from Tenant, as the case may be. A copy of a tax
xxxx or assessment xxxx submitted by Landlord to Tenant shall at all times be
sufficient evidence of the amount of taxes against the property to which such
xxxx relates. Prior to, or at the commencement of the term of this Lease and
from time to time thereafter throughout the term hereof, Landlord shall notify
Tenant in writing of Landlord's estimate of Tenant's monthly installments due
hereunder. Landlord's and Tenant's obligation under this Lease shall survive the
expiration of this Lease.
Section 3. Notwithstanding anything in
this Article to the contrary, all costs and expenses incurred by Landlord during
negotiations for or contests of the amount of taxes shall be included within the
term "Taxes". In the event a refund is obtained, Landlord shall credit a portion
thereof to the next installment of rent due from Tenant, such portion to be
based upon the percentage of the original taxes paid by Tenant from which the
refund was derived.
Section 4. Tenant, at all times shall
be responsible for and shall pay, before delinquent, all taxes levied, assessed
or unpaid on any leasehold interest, any right of occupancy, any investment of
Tenant in the 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 premises.
Section 5. Tenant shall, in addition to
the foregoing, pay any new tax of a nature not presently in effect but which may
be hereafter levied, assessed, or imposed upon the Landlord or the demised
premises, if such tax shall be based on or arise out of the ownership, use or
operation of the leased premises. For the purpose of computing Tenant’s
liability for such new type of tax, the leased premises shall be deemed the only
property of Landlord.
Section 6. If Tenant is the beneficiary
of a tax abatement on either real or personal property, the benefit shall accrue
only to the Tenant and shall not be prorated among other tenants in the leased
premises.
ARTICLE IV INSURANCE AND
INDEMNITY
Section 1. Tenant, at its own expense,
shall maintain for the mutual benefit of Landlord and Tenant, insurance of the
following character:
A) Comprehensive General
Liability; insurance against claims for bodily injury, personal injury, death or
property damage, and the business operated by Tenant and any subtenants of
Tenant in the leased premises, occurring on, at or about the demised premises,
such insurance to afford protection for Landlord and such other parties as
Landlord shall then designate, of not less than Two Million and no/100
($2,000,000.00) Dollars, with respect to bodily injury, personal injury or death
to anyone person, not less than Two Million and no/100 ($2,000,000.00) Dollars,
with respect to anyone accident or occurrence and not less than One Million and
no/100 ($1,000,000.00) Dollars, with respect to property damage. Policies for
such insurance shall be for the mutual benefit of Landlord, Tenant, and such
other parties as Landlord may designate, all of whom shall be deemed as
additional named insureds, and shall contain a clause that the insured 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 therefor. 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 insurance
certifying to the issuance of such policy shall be delivered to, Landlord prior
to the commencement of Tenant's Work and upon renewals not less than thirty (30)
days prior to the expiration of such coverage.
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B) Xxxxxxx'x
Compensation; during the term and any extension thereof of this Lease, covering all
persons employed in connection with any work done on or about the demised
premises with respect to which claims for death or bodily injury shall be
asserted against Landlord, Tenant, or the demised premises.
C) Personal
Property;
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 eighty percent (80%) of the actual replacement cost thereof and to furnish
Landlord with a certificate evidencing such coverage.
D) Plate Glass;
Tenant
shall provide plate glass insurance, if applicable.
E) Additional Named
Insured:
Landlord, along with any desired mortgagee if required, are to be named as
additional named insureds under the policies.
Section 2. Landlord shall provide
insurance of the following character. Tenant shall reimburse Landlord for its
proportionate share 51.24% of all costs and expenses incurred by Landlord for
insuring the facility.
A) Rental
Interruption insurance in amounts equal
to Tenant's total rental obligation for twelve (12) full months under this
Lease, plus the total of the estimated cost to Tenant of taxes, assessments,
insurance premiums and common area charges.
B) All Risk
Property; Fire and Extended Coverage in the standard fire extended coverage and
the special extended coverage endorsements providing all risk insurance in an
amount equal to full replacement value of the building and all improvements.
Said estimate shall be revised at the expiration of the initial term of the
insurance policy and shall be revised by the Landlord at each renewal of said
policy.
At the option of Landlord, Tenant
shall reimburse Landlord for its proportionate share 51.24% of all costs and
expenses for the insurance for this facility within ten (10) says of presenting
the insurance xxxx, or, at the option of Landlord, in monthly installments due
on or before the first day of each calendar month, in advance, in an amount
estimated by Landlord. Tenant’s proportionate share shall be 51.24% of the total
insurance costs of the entire center.
All insurance policies
required under this Article IV shall be issued by companies of recognized
financial standing, rated at least A VII by Best's Insurance Guide and duly
licensed to do business under the laws of the State of Michigan. Every policy
which Tenant is obligated to carry under the provisions of this Section shall
contain an agreement by the insurer that it will not cancel or materially modify
such policy except after thirty (30) days prior written notice to Landlord.
Tenant shall deliver to Landlord, upon delivery of its occupancy of the demised
premises, the original or duplicate policies or certificates of the insurers,
evidencing all of the insurance which is required to be maintained by Tenant
hereunder, and Tenant shall, within thirty (30) days prior to the expiration of
any such insurance deliver other original or duplicate policies or other
certificates of the insurers evidencing the renewal of such insurance. If Tenant
fails to effect, maintain, or renew any insurance provided for in this Section,
or to pay the premium therefor, or to deliver to Landlord any of such policies
or certificates, then in any of said events, Landlord, at its option, but
without obligation so to do, may upon five (5) days notice to Tenant, procure
such insurance. Any sums expended by Landlord to procure such insurance shall be
additional rent hereunder and shall be repaid by Tenant within five (5) days
following the date on which expenditures shall be made by
Landlord.
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Such insurance may be by
so-called "blanket" policy coverage, provided, however, that such "blanket"
policy coverage allocates a satisfactory amount of insurance to the demised
premises, that this amount is not subject to deduction because of coinsurance,
and that adjustment in payment of the insurance so allocated will be in the
amounts specified in the Lease. Further, said blanket coverage shall not be
subject to invalidation as to the demised premises because of any act or
omission by the Tenant.
Tenant covenants to indemnify
Landlord, and save it harmless from and against any and all claims, actions,
damages, liability and expense, including attorney 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, arising from or out of Tenant's
failure to comply with any provisions of this Lease or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors, employees,
servants, customers or licensees. For the purpose hereof, the leased premises
shall include service areas adjoining the same, including the parking areas, and
the loading platform areas. In case Landlord shall, without fault on its part,
be made a party to any litigation commenced by or against Tenant, then Tenant
shall protect and hold it harmless and shall pay all costs, expenses and
reasonable attorney fees incurred or paid by Landlord in connection with such
litigation. Tenant shall also pay all costs, expenses and reasonable attorney
fees that may be incurred in enforcing the Tenant's covenants and agreements in
this Lease.
Tenant further agrees that if
insurance premiums for the entire premises are increased due to the nature of
the Tenant's use of the demised premises, then the entire increase shall be the
sole responsibility of Tenant.
ARTICLE V PAYMENT BY
LANDLORD
Section 1. If the Tenant shall default
in any payment or expenditure other than rent required to be paid or expended by
the Tenant under the terms hereof, the Landlord may at its option make such
payment or expenditure, in which event the amount thereof shall be payable as
rental to the Landlord by the Tenant on the next ensuing rent day, together with
interest at fifteen (15%) percent per annum from the date of such payment or
expenditure by the Landlord and on default in such payment the Landlord shall
have the same remedies as on default in payment of rent.
ARTICLE VI
ASSIGNMENT
Section 1. Tenant agrees not to assign
or in any manner transfer this Lease or any estate or interest therein, and not
to lease or sublet the leased premises or any part or parts thereof or any right
or privilege appurtenant thereto, and not to allow anyone to conduct business
at, upon or from the leased premises or to come in, by, through or under it, in
all cases either by voluntary or involuntary act of Tenant or by operation of
law or otherwise, without the written consent of Landlord, which consent shall
not be unreasonably withheld. It is anticipated that Tenant will sublease lab
and office space to Chromatofast, Inc., a Michigan corporation, and Titan
Engineering, Inc., a Michigan corporation; provided, however, Tenant will obtain
the prior written consent of Landlord, which consent shall not be unreasonably
withheld and provided that Tenant remains solely liable under all of the terms
and conditions of this Lease. The sale, issuance or transfer of any voting stock
of Tenant or Tenant's Guarantor, if any, which results in a change in the voting
control of Tenant, or Tenant's Guarantor, if any, shall be deemed to be an
assignment of this Lease within the meaning of this Article. Any such prohibited
act by Tenant (or any attempt at same) either voluntarily or involuntarily or by
operation of law or otherwise, shall at Landlord’s option, terminate this Lease
and any such purported act shall be null and void.
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ARTICLE VII
ALTERATIONS
Section 1. Tenant shall not make or
cause to be made any alterations, additions or improvement to the leased
premises without the prior written approval of Landlord. Tenant shall present to
Landlord plans and specifications for such work at the time approval is
sought.
Section 2. All alterations,
decorations, 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; upon expiration of this Lease or any renewal term thereof, Tenant
shall not remove any of such alterations, decorations, additions and
improvements, except that trade fixtures installed by Tenant may be removed, if
all rents and other charges due herein are paid in full and Tenant is not
otherwise in default hereunder; provided, however, that Landlord may designate
by written notice to Tenant those alterations and additions which shall be
removed by Tenant at the expiration or termination of the Lease and Tenant shall
promptly remove the same and repair any damages to the leased premises caused by
such removal or shall reimburse Landlord for the cost of repairing such
damage.
Section 3. Landlord acknowledges that
Tenant intends to construct a clean room in the high bay area of the leased
premises and related items approved by Landlord. In the event Tenant elects to
proceed with the construction of the clean room on the leased premises, Tenant,
at its sole cost and expense, shall design, construct, repair and restore the
clean room in accordance with plans and specifications (as they may be amended
by approved change orders, the "Tenant Plans") to be submitted to Landlord for
its approval. The Tenant Plans shall set forth in detail the requirements for
the construction of the clean room (the "Tenant Improvements") and shall
include, but not be limited to, all necessary civil, architectural, structural,
mechanical, electrical, design and documentation required for the Tenant
Improvements and shall conform to all applicable laws, ordinances, building
codes, and requirements of public authorities and insurance underwriters and
shall be signed and sealed by a professional engineer and/or an architect, each
licensed and registered in the state in which the leased premises are located
and each maintaining errors and omissions insurance coverage in the amount of at
least $500,000. Tenant agrees to design and construct the Tenant Improvements in
accordance with the Tenant Plans in a good and workmanlike manner, and in
conformity with the construction guidelines provided by Landlord. In addition, a
list of all contractors shall be submitted to Landlord for Landlord's approval,
which approval shall not be unreasonably withheld. The Tenant's Plans are
expressly subject to Landlord's approval, such approval not to be unreasonably
withheld or delayed. Landlord shall review the Tenant's Plans and give Tenant a
response regarding its approval of the same within fifteen (15) days after
receipt thereof. If Landlord shall be dissatisfied in any material respect with
the Tenant's Plans, Tenant shall promptly modify the same to the reasonable
satisfaction of Landlord. Landlord's approval of the Tenant Plans shall not
constitute a representation, warranty or agreement of, and Landlord shall have
no responsibility or liability for the completeness or design sufficiency
thereof or the compliance thereof with any laws, rules or regulations of any
governmental or other authority.
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Tenant
agrees that all materials to be used by it in construction of the Tenant
Improvements shall be of good quality and Tenant shall not impair the structure
or the roof of the building in which the leased premises is located in
connection therewith. Tenant agrees that it shall cause the clean room to be
designed, constructed and completed in an orderly, clean and safe manner and
that while the construction work is being performed, Tenant and its contractors
shall provide builder's risk insurance coverage with Landlord as a named
insured, which insurance coverage shall meet the criteria reasonable prescribed
by Landlord. In the event that Tenant shall fail, for any cause, to complete the
clean room on or before the Commencement Date, Landlord shall not be subject to
any liability therefore nor shall such failure effect the validity of this Lease
and Tenant's obligations hereunder, including Tenant's obligation to commence
the term of the Lease and to pay rent and other sums due hereunder. Tenant will
keep the leased premises free of liens of any sort and will hold Landlord
harmless from any liens which may be placed on the leased premises. In the event
a construction or other lien shall be filed against the leased premises or
Tenant's interest therein as a result of any work undertaken by Tenant or its
employees, agents, contractors or subcontractors, or as a result of any
construction, repairs or alterations made by or any other act of Tenant or its
employees, agents, contractors or subcontractors, Tenant shall, within twenty
(20) days after receiving notice of such lien, discharge such lien either by
payment of the indebtedness due the lien claimant or by filing a bond (as
provided by statute) as security for the discharge of such lien provided such
lien is not the result of Landlord's failure to release funds received as
Improvement Rent. In the event Tenant shall fail to discharge such lien,
Landlord shall after have the right to procure such discharge by filing such
bond, and Tenant shall pay the cost of such bond to Landlord on demand as
additional. Landlord may designate by written notice to Tenant that all or any
portion of the clean room and any other alterations, additions, improvements and
fixtures made by or for Tenant, shall be removed by Tenant at the expiration or
termination of the Lease and Tenant shall promptly remove the same and restore
and repair any damage to the leased premises caused by such
removal.
Section 4. In the event Tenant receives
a bona fide offer from a third party to construct the Tenant Improvements (the
“Proposed Construction Agreement”) which Construction Agreement Tenant desires
to accept, Tenant shall give Landlord written notice of the Proposed
Construction Agreement, including a description of the terms and conditions
contained therein, and Landlord shall have the first right to construct the
Tenant Improvements upon the same terms and conditions as set forth in the
Proposed Construction Agreement. Landlord's election must be made by delivery of
written notice to Tenant within three (3) business days after receipt of notice
of the Proposed Construction Agreement from Tenant, and upon such exercise,
Landlord and Tenant shall have an additional ten (10) days in which to enter
into a binding construction agreement upon the terms set forth in the Proposed
Construction Agreement and otherwise acceptable to Landlord and Tenant. In the
event Landlord rejects the Proposed Construction Agreement, fails to accept the
Proposed Construction Agreement within the three (3) day period, or the
construction agreement is not entered into between Landlord and Tenant within
the said ten (10) day period, Tenant shall have the right to enter into the
Proposed Construction Agreement, and upon entering into the Proposed
Construction Agreement, Tenant's first right to construct the Tenant
Improvements as provided herein shall expire. Notwithstanding anything in this
Article VII, Section 4 to the contrary, in the event that Tenant provides
written notice to Landlord within sixty (60) days from the date of this Lease
that it will use and does use pre-designed, pre-engineered modular clean rooms
tested and certified to Federal Standards (FS 209E), Institute of Environmental
Sciences (IES) Recommended Procedures, and ISO/FDIS (Clean Rooms and Associated
Controlled Environment Standards), the option granted to Landlord in this
Article VII, Section 4 will not apply.
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ARTICLE VIII EMINENT
DOMAIN
If the whole or more than
fifty (50%) percent of the leased premises shall be taken by any public
authority under the power of eminent domain or sold to public authority under
threat or in lieu of such a taking, then the term of this Lease shall
cease on the part so taken, as of the day possession shall be taken by such
public authority, and the rent shall be paid up to that date. Landlord or Tenant
may, by written notice to the other, within thirty (30) days from the date
possession is taken by public authority, terminate this Lease. In the event that
neither Landlord or Tenant terminates this Lease, all of the terms herein
provided shall continue in effect, except that as of the date possession is
taken by public authority, the rent and other charges payable by Tenant to
Landlord shall be reduced in proportion to the floor area of the leased premises
taken and Landlord shall, at its expense, make all necessary repairs or
alterations to the basic building, so as to constitute the remaining leased
premises as a complete architectural unit, and Tenant, at Tenant's sole cost,
shall similarly act with respect to Tenant's improvements, trade fixtures,
furnishings and equipment. All damages awarded for such taking under the power
of eminent domain or sale under threat or in lieu of such taking, whether for
the whole or a part of the leased premises, shall belong to and be the property
of Landlord, irrespective of whether such damages shall be awarded as
compensation for diminution in value to the leasehold or to the fee of the
leased premises, and Tenant shall have no claim against either Landlord or the
condemning authority with respect thereto; provided, however, that Landlord
shall not be entitled to any award specifically designated as compensation for,
depreciation to, and cost of removal of Tenant's stock and
fixtures.
ARTICLE IX MAINTENANCE AND
REPAIRS
Section 1. Landlord shall, at
its own expense, make all necessary repairs to the roof, outer walls, footings
and foundation of the premises which repairs are occasioned by structural
defects. Tenant shall, at its expense, take care of the demised premises both
inside and out and keep the same and all parts thereof, by way of illustration,
but not limitation, the roof and four outer walls, together with any and all
alterations, additions and improvements therein or thereto, in good order and
condition, suffering no waste or injury, and shall promptly make all needed
repairs and replacements, in and to any building or structure or equipment now
or hereafter erected upon the demised premises, including vaults, sidewalks,
water, sewer and gas connections, pipes and mains, and all other fixtures,
machinery and equipment now or hereafter belonging to or connected with said
premises or used in their operation. All such repairs and replacements shall be
of first class quality sufficient for the proper maintenance and operation of
the demised premises. The Tenant shall not allow the accumulation of waste or
refuse matter, not permit anything to be done upon the demised premises which
would invalidate or prevent the procurement of any insurance policies which may
at any time be required pursuant to the provisions of Article IV hereof. The
Tenant shall not obstruct or permit the obstruction of the street or sidewalk
and shall keep the sidewalk and curb adjoining the demised premises clean and
free of snow and ice.
Landlord shall be responsible
for the repair and maintenance of the parking lot, landscaping and security
related to the parking areas. Tenant agrees to pay Landlord Tenant's
proportionate share of all costs and expenses of every kind and nature paid or
incurred by Landlord pursuant to Article IX, Section 1. Tenant's proportionate
share for the purposes of this Article shall be 51.24%. In addition, Tenant
shall be fully responsible for any repairs, at its expense, caused by its
negligence, abuse, use or occupancy of the demised premises or building(s)
comprising the demised premises. Notwithstanding anything in this Article IX,
Section 1 to the contrary, during the entire lease term, if Tenant is required
to replace a major capital component to the leased premises, the cost of
replacement shall be amortized over the replacement's ten year life expectancy
and Tenant shall be required to pay its proportionate share for such replacement
based upon the remaining term or, the Lease during which Tenant continues to
occupy the leased premises.
Section 2. The Tenant shall at its own
expense under penalty of forfeiture and damages promptly comply with all lawful
laws, orders, regulations or ordinances of all municipal, County and State
authorities affecting the premises hereby leased and the cleanliness, safety,
occupation and use of same.
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Section
3.
The Landlord shall have the right to enter upon the leased premises at all
reasonable hours after two (2) business days notice (except in the case
of emergency) for the purpose of inspecting the same. If the Landlord deems any
repairs necessary, he may demand that the Tenant make the same and if the Tenant
refuses or neglects forthwith to commence such repairs and complete the same
with reasonable dispatch, the Landlord may make or cause to be made such repairs
and shall not be responsible to the Tenant for any loss or damage that may
accrue to its stock or business by reason thereof, and if the Landlord makes or
causes to be made such repairs, the Tenant agrees that it will forthwith on
demand pay to the Landlord the cost thereof with interest at fifteen (15%)
percent per annum, and if it shall make default in such payment, the Landlord
shall have the remedies provided in Paragraph 6 hereof.
Section 4. The Landlord reserves the
right of free access at all times to the roof of said leased premises. The
Tenant shall not erect any structures for storage or any aerial, or use the roof
for any purpose without the consent in writing of the
Landlord.
ARTICLE X RIGHT TO ERECT
SIGNS
Section 1. Tenant is hereby granted the
right to erect signs on the exterior of the building which shall be constructed
in conformity with all requirements of local law and shall be subject to the
prior written approval of Landlord, with regard to location, size and methods of
attachment, which approval will not be unreasonably withheld. Tenant agrees to
hold Landlord harmless from any liability arising out of or in connection with
the erection or maintenance of such signs.
Landlord covenants that it
will not allow any other Tenant to erect signs on the face of the portion of the
building in which the demised premises are located.
ARTICLE Xl LANDLORD'S RIGHT
TO CURE TENANT'S DEFAULT
Section 1. Landlord may, without
notice, if in the opinion of Landlord an emergency exists, perform any covenant
or condition of this Lease for the Tenant's account and at the Tenant's expense,
in the event that the Tenant shall default in the performance of any such
covenant or condition. Tenant shall reimburse Landlord for all costs and
expenses of Landlord, including reasonable attorney fees, thereby incurred
within ten (10) days after receipt by Tenant from Landlord of a statement
setting forth the amount of such costs and expenses. The failure by Tenant to so
reimburse Landlord within such ten (10) day period shall constitute a default by
Tenant under this Lease and shall carry with it the same consequences as failure
to pay any installment of rental. Landlord's rights and remedies pursuant to
this Article shall be an addition to any and all other rights and remedies
provided under this Lease or at law and shall survive the termination of this
Lease.
ARTICLE XII
DEFAULT
Section 1. If any one or more of the
following events (herein sometimes called "events of default") shall
happen:
A) If default shall be made
in the due and punctual payment of any rent, or in the payment of any other sum
of money required to be paid by Tenant under this Lease or any part thereof,
when and as the same shall become due and payable, and such default shall
continue for a period of seven (7) days after notice from Landlord to Tenant
specifying the items in default; or
B) In the event Tenant shall
be in default in the performance of any other covenants, terms, conditions,
provisions, rules and regulations of this Lease excepting those items listed in
the above Section (A) and if such default is not cured within thirty (30) days
after written notice thereof given by the Landlord, excepting such defaults that
cannot be cured completely within such thirty (30) day period, provided that the
Tenant shall within such thirty (30) day period, promptly commence and proceed
with reasonable diligence and in good faith to remedy such default;
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then
and in any such event Landlord at any time thereafter may give written notice to
Tenant specifying such event of default and stating that this Lease and the term
hereby demised shall expire and terminate on the date specified in such notice,
which shall be at least seven (7) days after the giving of such notice, and upon
the date specified in such notice this Lease and the term hereby demised and all
rights of Tenant xxxxxx this Lease, including any renewal privileges, whether or
not exercised, shall expire and terminate, and Tenant shall remain liable as
hereinafter provided.
Section 2. Upon any such expiration or
termination of this Lease, Tenant shall quit and peacefully surrender the
demised premises to Landlord, and Landlord, upon or at any such expiration or
termination, may without further notice, enter upon and reenter the demised
premises and possess and repossess itself thereof, by summary proceedings,
ejectment or other legal proceedings, and may dispossess Tenant and remove
Tenant and all other persons and property from the demised premises and may
have, hold and enjoy the demised premises and the right to receive all rental of
and from the same. In the event that the Landlord shall, during the period
covered by this Lease, obtain possession of said premises by reentry, summary
proceedings, or otherwise, the Tenant hereby agrees to pay the Landlord the
expense incurred in obtaining possession of said premises and also all expenses
and commissions which may be paid in and about the letting of the same, and all
other damages.
Section 3. If this Lease shall
terminate pursuant to this Article, or by summary proceedings or otherwise, or
if the demised premises or any part thereof shall be abandoned by Tenant, or
shall become vacant during the term hereof, Landlord may in its own name, but as
agent for Tenant if this lease not be terminated, or if this lease be
terminated, in its own behalf, relet the demised premises or any part thereof,
or said premises, with additional premises for such term or terms, (which may be
greater or less than the period which would otherwise have constituted the
balance of the term of this Lease) and on such conditions (which may include
reasonable concessions or free rent and alterations of the demised premises) as
Landlord, in its uncontrolled discretion, may determine and may collect and
receive the rents therefor. Landlord shall in no way be responsible or liable
for any failure to relet the demised premises or any part thereof, or of any
failure to collect any rent due upon such reletting.
Section 4. No such expiration or
termination of this Lease, or summary proceedings, abandonment or vacancy shall
relieve Tenant of its liability and obligation under this Lease, whether or not
the demised premises shall be relet. In any such event Tenant shall pay Landlord
the rent and all other charges required to be paid by Tenant up to the time of
such event. Thereafter:
A) 1. Tenant, until the end
of the term of this Lease, or what would have been such term in the absence of
any such event, shall be liable to Landlord as damages for Tenant's default, the
equivalent of the amount of the rent and other charges which would be payable
under this Lease by Tenant if this Lease were still in effect, less the net
proceeds of any reletting effected pursuant to the provisions above, after
deducting all Landlord's expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage and management
commissions, operating expenses, legal expenses, reasonable attorneys' fees,
alteration costs, and expenses of preparation for such reletting.
2. Tenant shall pay such current
damages (herein called "deficiency") to Landlord monthly on the days on which
the net rent would have been payable under this Lease if this Lease were still
in effect, and Landlord shall be entitled to recover from Tenant each monthly
deficiency as the same shall arise.
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3. At any time after the
expiration or termination of this Lease pursuant to this Article, in lieu of
collecting any further monthly deficiencies as aforesaid, Landlord shall be
entitled to recover from Tenant, and Tenant shall pay to Landlord, on demand, as
damages, in addition to the damages provided for in Section 8, damages computed
in the manner set forth in this Section A, minus any such monthly deficiencies
previously recovered from Tenant.
B) 1. In case of any breach
of this Lease mentioned in Sections 6 and 7, Landlord shall immediately and ipso
facto, without notice or other action by Landlord, become entitled to recover
from Tenant, as damages for such breach, in addition to any damages becoming due
under Sections 6 and 7, an amount equal to the difference between the rent and
other charges reserved in this Lease from the date of such breach to the date of
the expiration of the original term demised and the then fair and reasonable
rental value of the premises for the same period. Said damages shall become due
and payable to Landlord immediately upon such breach of this Lease and without
regard to whether this Lease be terminated or not, and if this Lease be
terminated without regard to the manner in which it is terminated. In the
computation of such damages, the difference between any installment of rent
thereafter becoming due and the fair and reasonable rental value of the premises
for the period for which such installment was payable shall be discounted to the
date of such breach at the rate of not more than four (4%) percent per
annum.
2. If and so long as the term
of this Lease shall continue, the rent reserved herein for the unexpired term of
the Lease after a breach mentioned in Sections 6 and 7, shall be reduced by the
amount of such liquidated damages as may be paid to Landlord, such reduction
being applied proportionately to each installment of rent thereafter becoming
due. During the continuance of the Lease after such a breach and until such
damages are paid to Landlord, the whole amount of each installment of rent
herein reserved shall be due and payable at the time herein specified and if, by
reason of the subsequent payment of liquidated damages, and the resulting
reduction in rental, Landlord shall have received a sum in excess of all
installments, as so reduced, becoming due after the breach and before the
collection of such damages, such excess shall be refunded upon the receipt of
such liquidated damages.
Section 5. If the demised premises or
any part thereof be relet by Landlord for the unexpired term of this Lease or
any part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall prima facie be the fair and reasonable rental value for the part or the
whole of the premises so relet during the term of the reletting. Nothing herein
contained shall limit or prejudice the right of Landlord to obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when and governing the
proceeding in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Section 6. If this Lease be
terminated by summary proceedings or otherwise, or if the premises are abandoned
or become vacant, and whether or not the premises be relet, Landlord shall be
entitled to recover from Tenant, and Tenant shall pay to Landlord, in addition
to any damages becoming due under this Article, the following: an amount equal
to all expenses, if any, including reasonable counsel fees, incurred by Landlord
in recovering possession of the demised premises, and all reasonable costs and
charges for the care of said premises while vacant, which damages shall be due
and payable by Tenant to Landlord at such time as such expenses are incurred by
Landlord.
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Section 7. If this Lease be terminated in any manner
whatsoever, or if there be any breach of this Lease specified in Section 6 and
7, then and in either of such events, Tenant covenants and agrees, any other
covenant in this Lease notwithstanding:
A) That the premises shall be
in the same condition as that in which Tenant has agreed to surrender them to
Landlord at the expiration of the term hereof.
B) That Tenant, on or before
the occurrence of any such event shall perform any covenant contained in this
Lease for the making of any improvement, alteration or betterment to the
premises, or for restoring or rebuilding any part thereof; and
C) That, for the breach of
any covenant above stated in this Section 7, Landlord shall be entitled to
recover and Tenant shall pay, ipso facto, without notice or other action by
Landlord, the then cost of performing such covenant, less interest thereon at
the rate of four (4%) percent per annum for the period between the occurrence of
any such event and the time when any such work or act, the cost of which is
computed, should have been performed under the other provisions of this Lease
had such event not occurred.
Section 8. Tenant acknowledges
that Landlord has certain rights and remedies granted by MCL 600.5701,
et seq., MSA 27a.5701, et seq. and all other statutes, court
rules and ordinances applicable to the leased premises.
Section 9. No failure by Landlord to
insist upon the strict performance of any agreement, term, covenant, or
condition hereof or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the continuance of any
such breach, shall constitute a waiver of any such breach or of such agreement,
term, covenant or condition. No agreement, term, covenant or condition hereof to
be performed or complied with by Tenant and no breach shall affect or alter this
Lease, but each and every agreement, term, covenant and condition hereof shall
continue in full force and effect with respect to any other then existing or
subsequent breach thereof.
Section
10. In
the event of any breach or threatened breach by Tenant of any of the agreements,
terms, covenants or conditions contained in this Lease, Landlord shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though reentry, summary proceedings and other remedies were not
provided for in this Lease.
Section
11. Each
right and remedy provided for in this Lease shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Landlord or Tenant of anyone or more of
the rights or remedies provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the party in question of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise.
ARTICLE XIII BANKRUPTCY OR
INSOLVENCY
Section 1. Tenant's interest
not transferable. Neither Tenant's interest in this Lease, nor any estate hereby
created in Tenant nor any interest herein or therein, shall pass to any trustee
or receiver or assignee for the benefit of creditors or otherwise by operation
of law except as may specifically be provided pursuant to the Bankruptcy
Code.
Section 2. Termination. In the event
the interest or estate created in Tenant hereby shall be taken in execution or
by other process of law, or if Tenant's Guarantor, if any, or his executors,
administrators, or assigns, if any, shall be adjudicated insolvent or bankrupt
pursuant to the provisions of any State Act or the Bankruptcy Code or if Tenant
is adjudicated insolvent by a Court of competent jurisdiction other than the
United States Bankruptcy Court, or if a receiver or trustee of the property of
Tenant or Tenant's Guarantor, if any shall be appointed by reason of the
insolvency or inability of Tenant or Tenant's Guarantor, if any, to pay its
debts, or if any assignment shall be made of the property of Tenant or Tenant's
Guarantor, if any, for the benefit of creditors, then and in any such events,
this Lease and all rights of Tenant hereunder shall automatically cease and
terminate with the same force and effect as though the date of such event were
the date originally set forth herein and fixed for the expiration of the term,
and Tenant shall vacate and surrender the leased premises but shall remain
liable as herein provided.
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Section 3. Tenant's obligation to avoid
Creditors' proceedings. Tenant or Tenant's Guarantor shall not cause or give
cause for the appointment of a trustee or receiver of the assets of Tenant or
Tenant's Guarantor, if any, and shall not make any assignment for the benefit of
creditors or become or be adjudicated insolvent. The allowance of any petition
under any insolvency law except under the Bankruptcy Code or the appointment of
a trustee or receiver of Tenant or Tenant's Guarantor, if any, or of the assets
of either of them, shall be conclusive evidence that Tenant caused, or gave
cause therefor, unless such allowance of the petition or the appointment of a
trustee or receiver, is vacated within thirty (30) days after such allowance or
appointment. Any act described in this paragraph shall be deemed a material
breach of Tenant's obligations hereunder, and this Lease shall thereupon
automatically terminate. Landlord does in addition, reserve any and all other
remedies provided in this Lease or in law.
Section
4. Rights
and obligations under the Bankruptcy Code:
A) Upon the filing of a
petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor and
as debtor in possession, and any trustee who may be appointed agree as
follows:
1. To perform each and every
obligation of Tenant under this Lease including, but not limited to, the manner
of "operations" as provided in this Lease until such time as this Lease is
either rejected or assumed by order of the United States Bankruptcy
Court.
2. To pay monthly in advance on
the first day of each month as reasonable compensation for use and occupancy of
the leased premises an amount equal to all rent and other charges otherwise due
pursuant to this Lease.
3. To reject or assume this
Lease within sixty (60) days of the filing of such petition under Chapter
7 of the
Bankruptcy Code or within one hundred twenty (120) days (or such shorter term as
Landlord, in its sole discretion, may deem reasonable so long as notice of such
period is given) of the filing of a petition under any other
Chapter.
4. To give Landlord at least
forty-five (45) days prior written notice of any proceeding relating to any
assumption of this Lease.
5. To give at least thirty (30)
days prior written notice of any abandonment of the leased premises; any such
abandonment to be deemed a rejection of this Lease.
6. To do all other things of
benefit to Landlord otherwise required under the Bankruptcy Code.
7. To be deemed to have rejected
this Lease in the event of the failure to comply with any of the above.
8. To have consented to the
entry of any order by an appropriate United States Bankruptcy Court providing
all of the above, waiving notice and hearing of entry of
same.
B) No default of this Lease by Tenant, either prior to
or subsequent to the filing of such a petition, shall be deemed to
have been waived unless expressly done so in writing by
Landlord.
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C. Included within and in
addition to any other conditions or obligations imposed upon Tenant or its
successor in the event of assumption and/or assignment are the
following:
1. The cure of any monetary
defaults and the reimbursement of pecuniary loss within not more than thirty
(30) days of assumption and/or assignment;
2.The deposit of an
additional sum equal to three (3) months rent to be held pursuant to the terms
of this Lease.
3.The use of the leased
premises as set forth in this Lease.
4.The reorganized debtor or
assignee of such debtor in possession or if Tenant's trustee demonstrates in
writing that it has sufficient background including, but not limited to
substantial experience and financial ability to operate out of the leased
premises in the manner contemplated in this Lease and meet all other reasonable
criteria of Landlord as did Tenant upon execution of this Lease.
5.The prior written consent
of any mortgagee to which this Lease has been assigned as collateral
security.
ARTICLE XIV SURRENDER OF
PREMISES
Section 1. Tenant shall
surrender at the end of the Lease term the premises in good order and repair,
except for reasonable wear and tear between the last necessary repair,
replacement, restoration or renewal made by Tenant, pursuant to its obligations
hereunder.
ARTICLE XV
NONLlABILlTY
Section 1. As a consideration
for making this Lease, the Landlord shall not be liable for any failure of
public or private utility services to the premises, nor for injury or damage
which may be sustained to person or property by the Tenant or any other person
caused by or resulting from steam, electricity, gas, water, rain, ice, or snow
which may leak or flow from or into any part of said building or from the
breakage, leakage, obstruction or other defect of the pipes, wiring, appliances,
plumbing or lighting fixtures of the same, the condition of said premises or any
part thereof, or through the elevator, if any, or from the street or subsurface,
or from any other source or cause whatsoever, whether the same damage or injury
shall be caused by or be due to the negligence of the Landlord, the Landlord's
agent, servant, employee, or not, nor for interference with light or other
incorporeal hereditaments, provided such interference is caused by anybody other
than the Landlord, or caused by operations by or for the City in the
construction of any public or quasi-public work, neither shall the Landlord be
liable for any defect in the building, latent or otherwise.
Section 2. Then Tenant further
acknowledges that it has examined the said leased premises prior to the making
of this lease, and knows the condition thereof, and that no representations as
to the condition or state of repairs thereof have been make by the Landlord or
its agent, which are not herein expressed, and the Tenant hereby accepts the
leased premises in their present condition at the date of the execution of this
Lease.
Section 3. 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
premises or any part of the premises adjacent to or connected with the premises
hereby leased or any part of the building of which the leased premises are a
part or for any loss or damage resulting to the Tenant or his property from
bursting, stoppage or leaking of water, gas, sewer or steam
pipes.
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ARTICLE XVI USE AND
OCCUPANCY
It is understood and agreed between the parties
hereto that said premises during the continuance of this Lease shall be used and
occupied for general office, micro-fabrication and manufacturing, and research
and development, and for no other purpose or purposes without the written
consent of the Landlord, and that the Tenant will not use the premises for any
purpose in violation of any law, municipal ordinance or regulation and that on
any breech of this agreement, the Landlord may at its option terminate this
Lease forthwith and re-enter and repossess the leased premises.
ARTICLE XVII DAMAGE AND
DESTRUCTION
Section 1. If the portion of the building occupied by
Tenant is damaged by fire or any other cause, the following provisions of this
Article shall apply:
A) If the damage is to such extent that the cost of restoration, as
estimated by Landlord, will equal or exceed thirty (30%) percent of the
replacement value of the building (exclusive of foundations) in its condition
just prior to the occurrence of the damage, Landlord may, no later than the
sixtieth (60th) day following the damage, give Tenant a written notice stating
that it elects to terminate this Lease. If such notice shall be
given:
1.This Lease shall terminate on the third (3rd) day after the giving of
said notice.
2.Tenant shall surrender possession of the premises within a reasonable
time thereafter.
3.The rent and additional rent shall be apportioned as of the date of
such surrender and any rent paid for any period beyond said date shall be repaid
to Tenant.
B) If the cost of restoration, as estimated by Landlord, shall amount to
less than thirty (30%) percent of said replacement value of the building, or if
despite the cost Landlord does not elect to terminate this Lease, Landlord shall
restore the building and the premises with reasonable promptness, subject to
delays beyond Landlord's control and delays in the making of insurance
adjustments by Landlord, and Tenant shall not have the right to terminate this
Lease.
Landlord need not restore fixtures, improvements or other property of
Tenant.
Section 2. In any case in which the use of the premises is
affected by any damage to the building, there shall be either an abatement or an
equitable reduction in rent depending on the period for which the extent to
which the premises are not reasonably usable for the purposes for which they are
leased hereunder. The words "restoration" and "restore" as used in this Article
shall include repairs. If the damage results from the fault of Tenant, or
Tenant's agents, servants, visitors or licensees, Tenant shall not be entitled
to any abatement or reduction of rent, except to the extent, if any, that
Landlord receives the proceeds of rent insurance in lieu of such
rent.
Section
3. In
the event of any loss or damage to the building, the premises and/or any
contents, each party shall look first to any insurance in its favor before
making any claim against the other party; and to the extent possible without
additional cost, each party shall obtain, for each policy of such insurance,
provisions permitting waiver of any claim against the other party for loss or
damage within the scope of the insurance, and each party, to such extent
permitted, for itself and its insurers waives all such insured claims against
the other party (its agents, employees and guests).
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ARTICLE XVIII NOTICES
All notices required herein shall be given in
writing by certified or registered mail, return receipt requested, if addressed
to Landlord, at the place where the rent reserved herein is payable and if
addressed to Tenant as follows:
| TENANT: |
| Xxxxx X. Xxxxxx, CEO |
| Picometrix, Inc. |
| X.X. Xxx 000000 |
| Xxx Xxxxx, Xxxxxxxx 00000-0000 |
| With a copy to: |
| Xxx Xxxxx Reach, Esq. |
| Reach, Xxxxxx & Xxxxxxxxx, P.C. |
| 000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000 |
| Xxx Xxxxx, Xxxxxxxx 00000 |
or to such other addresses
as the parties respectively may designate by notice given in like
manner.
ARTICLE XIX HEADINGS AND SECTION
NUMBERS
The headings, section numbers and article numbers
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, or construe, or describe the scope of intent of such sections
or articles of this Lease nor in any way affect this
Lease.
ARTICLE XX UTILITIES
The Tenant shall pay, as and when the same shall
become due and payable, all water and sewer rents, rates, charges, assessments
and other utilities supplied to the leased property or the entire facility. If
any such utilities are not separately metered or assessed, or are only partially
separately metered or assessed and are used in common with other tenants of the
building in which the leased property is located, the Tenant will pay to the
Landlord an apportionment of such charges for utilities used in common based on
square footage of floor space leased to each tenant using such common
facilities, in addition to the Tenant's payment of the separately metered
charges. For the purposes of this Article XX, Tenant's proportionate share of
the commonly used utilities for the entire complex shall be 51.24 %. Tenant's
proportionate share shall be recalculated, as stated above, for the utilities
used in common with other occupants of the facility based upon the total square
footage covered by the utility.
ARTICLE XXI ADDITIONAL
RULES
The Landlord
may, from time to time, make such reasonable rules and regulations as in the
Landlord's judgment may be necessary
or advisable for the safety, care and cleanliness of the premises, the
cleanliness of the building in which the same are located, the common areas and
other tenants occupying said adjoining buildings and for the preservation of
good order in said building and adjoining buildings and the use and occupancy of
the demised premises shall be conditioned upon observance of the compliance with
such rules and regulations.
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ARTICLE XXII ADDITIONAL
DOCUMENTS
The parties hereto, upon request, agree to
execute any additional documents required to carry out the intent and provisions
of this Lease.
ARTICLE XXIII LIGHT AND
AIR
If at any time any windows of the demised
premises are temporarily or permanently closed, darkened or bricked-up for any
reason whatsoever including, but not limited to, Landlord's own acts, Landlord
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor abatement of rent, nor shall
the same release Tenant from its obligations hereunder nor constitute an
eviction.
ARTICLE XXIV INTENTIONALLY
OMITTED
ARTICLE XXV WAIVER
The failure of the Landlord to insist, in anyone
or more instances upon a strict performance of any of the covenants of this Lease, or to exercise any option herein
contained, shall not be construed as a waiver or a relinquishment for the future
of such covenant or option, but the same shall continue and remain in full force
and effect. The receipt by the Landlord or rent, with knowledge of the breach of
any covenant hereof, shall not be deemed a waiver of such breach and not waiver
by the Landlord of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by the
Landlord.
ARTICLE XXVI NO
PARTNERSHIP
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.
ARTICLE XXVII PARTIAL
INVALIDITY
If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by Law.
ARTICLE XXVIII LIENS
The Tenant shall have no power to do any act or
make any contract which may create or be the foundation for any lien, mortgage
or other encumbrance upon the estate of the Landlord or of any interest of the
Landlord in the demised premises, or upon or in the building or buildings or
improvements thereon or hereafter erected or placed hereon, it being agreed that
should the Tenant cause any improvements, alterations or repairs to be made to
the demised premises, or material furnished or labor performed therein, or
thereon, neither the Landlord nor the demised premises nor any improvements
shall under any circumstances be liable for the payment of any expenses incurred
or for the value of any work done or material furnished to the demised premises
or any part thereof; but all such improvements, alterations, repairs, materials
and labor shall be done at the Tenant's expense and the Tenant shall be solely
and wholly responsible to contractors, laborers and materialmen, furnishing
labor and material to said premises and building or buildings and improvements
or any part thereof and all such laborers, materialmen and contractors are
hereby charged with notice that they must look solely and wholly to the Tenant
and the Tenant's interest in the premises, to secure the payment of any bills
for work done and materials furnished.
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In the event a mechanic's lien shall be filed
against the demised premises or Tenant's interest therein as the result of the
work undertaken by Tenant to ready the demised premises for the opening of
Tenant's business or as a result of any repairs or alterations made by Tenant,
Tenant shall, within ten (10) days after receiving notice of such lien,
discharge such lien either by payment of the indebtedness due the mechanic's
lien claimant or by filing a bond (as provided by statute) as security therefor.
In the event Tenant shall fail to discharge such lien, Landlord shall, among its
remedies, have the right to procure such discharge by filing such bond and
Tenant shall pay the cost of such bond to Landlord as additional rent upon the
first day that rent shall be due thereafter.
ARTICLE XXIX ENTIRE
AGREEMENT
This Lease and the Exhibits, Riders and/or
Addenda, if any, attached and signed by the parties, set forth the entire
agreement between the parties. Any prior conversations or writings are merged
herein and extinguished. No subsequent amendment to this Lease shall be binding
upon Landlord or Tenant unless reduced to writing and signed. If any provisions
contained in a Rider or addenda is inconsistent with a provision of this Lease,
the provisions contained in said rider or addenda shall supersede the Lease
provision.
ARTICLE XXX 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, the masculine gender shall include the
feminine and neuter genders and the neuter gender shall include the feminine and
masculine genders.
ARTICLE XXXI COMPLIANCE WITH
LAWS
Tenant covenants and warrants that during the
term of this Lease or any extension thereof, Tenant, at its expense and under
penalty of forfeiture and damages, has complied and will continue to comply with
all statutes, ordinances, rules, orders, regulations and/or requirements of all
county, municipal, state, federal and other applicable governmental authorities
now in force or which may hereinafter be in force as pertains to the conduct of
Tenant’s business. Tenant agrees to indemnify, save and hold Landlord harmless
from any fines or penalties assessed against the demised premises for a
violation of any statutes, ordinances, rules, orders, regulations and/or
requirements of all county, municipal, state, federal and other governmental
authorities as a result of Tenant's improper, unusual or unlawful manner of
using the demised premises for the conduct of Tenant's
business.
ARTICLE XXXII CONSTRUCTION AND
INTERPRETATION
This
Lease shall be construed and interpreted in accordance with the laws of the
State of Michigan.
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ARTICLE XXXIII RENT TO BE NET TO
LANDLORD
It is the intention of the parties that the rent
payable hereunder shall be net to Landlord, so that this Lease shall yield to
Landlord the net annual rent specified herein during the term of this Lease, and
that all costs, expenses and obligations of every kind or nature whatsoever
relating to the demised premises including, but not limited to all charges made
against the leased premises for gas, water, heat and electricity during the
continuance of this lease shall be paid as the same shall become due by Tenant
except for those costs, expenses and obligations specifically designated as
those of Landlord.
ARTICLE XXXIV DELAYS
Section l. 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 strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrections, 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 performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The party entitled to such
extension hereunder shall give written notice as soon as possible to the other
party hereto of its claim of right to such extension and the reason(s)
therefore. The provisions of this Paragraph shall not operate to excuse Tenant
from prompt payment of rent, or any other payments required by the terms of this
Lease.
Section
2. It
is understood that if the Tenant shall be unable to enter into and occupy the
premises hereby leased at the time above provided, by reason of the said
premises not being ready for occupancy, or by reason of the holding over of any
previous occupant of said premises, or as a result of any cause or reason beyond
the direct control of the Landlord, the Landlord shall not be liable in damages
to the Tenant therefor, but during the period the Tenant shall be unable to
occupy said premises as hereinbefore provided, the rental therefor shall be
abated and the Landlord is to be the sole judge as to when the premises are
ready for occupancy.
ARTICLE XXXV INTEREST ON PAST DUE
OBLIGATIONS
Any amount due from Tenant to Landlord hereunder
which is not paid when due shall bear interest at fifteen (15%) percent per
annum from the date due until paid, unless otherwise specifically provided
herein, but the payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
ARTICLE XXXVI LIABILITY OF
LANDLORD
If Landlord shall fail to perform any covenant,
term or condition of this Lease upon Landlord's part to be performed, and if as
a consequence of such default Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only 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 demised premises or building which the
demised premises are a part (the "Property") and out of rents or other income
from the 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 Property. Neither Landlord nor any of the
partners comprising the partnership which is the Landlord herein shall be liable
for any deficiency.
ARTICLE XXXVII
RE-RENTING
The
Tenant hereby agrees that for a period commencing six (6) months prior to the
termination of this Lease, the Landlord may show the premises to prospective
Tenants and six (6) months prior to the termination of this Lease, may display
in and about said premises and in the windows thereof, the usual and ordinary
"TO RENT" signs.
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ARTICLE XXXVIII QUIET
ENJOYMENT
The landlord covenants that the said Tenant, on
payment of all the aforesaid installments and performing all the covenants
aforesaid, shall and may peacefully and quietly have, hold and enjoy the said
demised premises for the term aforesaid.
ARTICLE XXXIX HOLDING
OVER
Any holding over after the expiration of the term
hereof with the consent of Landlord, shall be construed to be a tenancy from
month-to-month at one and one-half (1-1/2) times the last month's rental together with an amount estimated by
Landlord for the monthly additional charges payable pursuant to this Lease, and
shall otherwise be on the same terms and conditions as herein specified so far
as applicable. Any holding over without Landlord's consent shall entitle
Landlord to reenter the leased premises pursuant to Article XII, Section 2 of
this Lease.
ARTICLE XXXX 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 Article VI.
ARTICLE XXXXI FURNISHING OF FINANCIAL
STATEMENTS
Upon Landlord's written request, Tenant shall
promptly furnish Landlord, from time to time, with financial statements
reflecting Tenant's current financial condition, and written evidence of
ownership of controlling stock interest if Tenant is a
corporation.
ARTICLE XXXXII ACCORD AND
SATISFACTION
Payment by Tenant or receipt by Landlord of a
lesser amount than the rent or other charges herein stipulated shall be deemed
to be on account of the earliest due stipulated rent or other charges, and no
endorsement or statement on any check or any letter accompanying any check
payment as rent or other charges shall 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 other charges or pursue any other
remedy in this Lease to the Tenant.
ARTICLE XXXXIII EXECUTION OF LEASE; NO
OPTION
The submission of this Lease to Tenant shall be
for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
by Tenant in, the leased premises. Execution of this Lease by Tenant and
returned to Landlord shall not be binding upon Landlord, notwithstanding any
time interval, until Landlord has in fact executed and delivered this Lease to
the Tenant.
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ARTICLE XXXXIV
RECORDING
Tenant shall not record this Lease without
the written consent of Landlord.
ARTICLE XXXXV WAIVER OF
COUNTERCLAIMS
In the event Landlord commences any proceedings
for nonpayment of rent or as a result of the holding over of Tenant after the
expiration of the term of this Lease, Tenant will not interpose any
counter-claim of whatsoever nature or description in any such proceedings, which
shall not be construed as a waiver of Tenant's right to assert such claims in
any separate action or actions brought by Tenant.
ARTICLE XXXXVI ESTOPPEL
STATEMENT
Tenant agrees within ten
(10) days after request therefor by Landlord, to execute in recordable form and
deliver to Landlord a statement, in writing, certifying (a) that this Lease is
in full force and effect; (b) 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) whether this Lease has been
modified and, if so, identifying the modifications; and (f) that there are no
uncured defaults by Landlord or stating those claimed by Tenant provided that,
in fact, such facts are accurate and ascertainable.
ARTICLE XXXXVII
ATTORNMENT
In the event any proceedings are brought for the
foreclosure of, or in the event of a conveyance by deed in lieu of foreclosure
of, or in the event of exercise of the power of sale under any mortgage and/or
deed of trust made by Landlord covering the leased premises, or in the event
Landlord sells, conveys or otherwise transfers its interest in the demised
premises or any portion thereof containing the demised premises, this Lease
shall remain in full force and effect and Tenant hereby attorns to and covenants
and agrees to execute an instrument in writing reasonably satisfactory to the
new owner whereby Tenant attorns to, such successor in interest and recognizes
such successor as the Landlord under this Lease. Payment by or performance of
this Lease by any person, firm or corporation claiming an interest in this Lease
or the leased premises by, through or under the Tenant without Landlord's
consent in writing shall not constitute an attornment or create any interest in
this Lease or the leased premises.
ARTICLE XXXXVIII
SUBORDINATION
Tenant agrees that this Lease shall, at the
request of the Landlord, be subordinate to any first mortgage on deeds of trust
that may hereafter be placed upon said premises and to any and all advances to
be made thereunder, and to 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 said 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 upon request of Landlord, any mortgagee or any trustee,
it shall execute whatever instruments may be required to carry out the intent of
this Article. So long as Tenant has complied with every term and condition of
this Lease and has not been or is not currently in material default under any of
the terms and conditions contained in the Lease, Landlord shall provide Tenant
with a non-disturbance agreement signed by any subsequent lender or lien holder
of record.
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ARTICLE XXXXIX
REMEDIES
Failure of the Tenant to execute any of the above
instruments within fifteen (15) days upon written request so to do by Landlord
shall constitute a breach of this Lease and the Landlord may, at its option,
cancel this Lease and terminate the Tenant's interest therein. Further, Tenant
hereby irrevocably appoints Landlord as attorney-in-fact for the Tenant with
full power and authority to execute and deliver in the name of the Tenant any
such instruments.
ARTICLE XXXXX EXECUTION OF
LEASE
If either party hereto is a partnership, limited
partnership, corporation or other joint venture or association, the
individual(s) executing this Lease on behalf of such entity warrant and
represent that such entity is validly organized and existing and authorized to
do business under the laws of the State of Michigan, that the form of entity is
as set forth in the introductory paragraph of this Lease and the acknowledgments
at the end of this Lease, that the entity has full power and lawful authority to
enter into this Lease in the manner and form herein set forth, and that the
execution of this Lease by such individual(s) is proper and sufficient to
legally bind such entity in accordance with the terms and conditions hereof. If
Tenant consists of more than one person or entity, then the obligations imposed
on Tenant shall be joint and several.
ARTICLE XXXXXI
INTENTIONALLY
OMITTED
ARTICLE XXXXXII OPERATION AND MAINTENANCE OF
COMMON AREAS
For the purpose of this Article and wherever else
used in this Lease, the Common Areas shall be defined as the areas designated by
Landlord as Common Areas from time to time, including by way of illustration and
not limitation, all parking areas, access roads and facilities which may be
furnished by Landlord, including all parking areas, the truckway or ways,
driveways, loading docks and areas, package delivery areas, sidewalks, courts
and ramps, signage, landscaped and planting areas, retaining walls, any utility
systems or other facilities which are used for the operation of, or in
connection with Landlord's building and all other areas, and improvements which
may be provided by the Landlord for the general use in common of the Tenants,
their officers, agents, employees and customers.
Landlord hereby grants to Tenant and Tenant’s
employees, agents, customers and invitees the right, during the term hereof, to
use in common with others entitled to the use thereof, the Common Areas. The
manner in which such Common Areas and facilities are and hereafter shall be
constructed, operated, managed, insured and maintained and expenditures therefor
shall be at the sole discretion of the Landlord, and the use of such areas and
facilities shall be subject to such reasonable regulations as Landlord shall
make from time to time.
Landlord may close any of the Common Areas to
whatever extent required in the opinion of Landlord's counsel to prevent a
dedication of any of the Common Areas or the accrual of any rights of any person
or of the public to the Common Areas. Landlord may also close temporarily any of
the Common Areas for maintenance.
ARTICLE XXXXXIII TENANT'S PRO-RATA SHARE OF OPERATING AND
COMMON
AREA EXPENSES
(a) Tenant shall pay, as additional rent, as
hereinafter provided, a proportionate share of all costs and expenses of every
kind and nature paid or incurred by Landlord in the operation, managing and
maintenance of the entire Common Areas, which shall include, without limitation,
lighting, heating, air conditioning, utilities, personal property taxes,
cleaning, rubbish removal, snow removal, line painting, policing and security,
repairs and replacements, management fees, and as amount equal to fifteen (15%)
percent of the total of all the foregoing costs and expenses to cover Landlord's
administrative costs, decorations, extermination, the cost of landscaping,
drainage and lighting facilities as may be from time to time necessary, all
salaries and compensation in connection with such operation and maintenance.
Cost of operation and maintenance shall include (i) the depreciation of the cost
of acquiring and installing the equipment used in maintenance and any equipment
and facilities acquired by Landlord to reduce energy consumption or to otherwise
reduce such costs and expenses of operating and maintaining the Common Areas and
interest charges paid in connection with financing the cost of such equipment,
but shall not include the original cost of such equipment or replacements
thereof; and (ii) all costs and expenses paid by Landlord in connection with the
operation and maintenance of said Common Areas, including without limitation,
legal, architectural and engineering fees. The proportionate share to be paid by
Tenant of such costs and expenses shall be 51.24 %.
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(b) Tenant's proportionate share of such costs
and expenses for each lease year and partial lease year shall be paid in monthly
installments on the first day of each calendar month, in advance, in a) an
amount estimated by Landlord from time to time or b) from monthly xxxxxxxx
provided to Tenant. If said amount is estimated by Landlord then subsequent to
the end of each lease year and/or partial lease year, Landlord shall furnish
Tenant with a statement of Tenant's proportionate share of such costs and
expenses for such period. In this event if the amount paid by Tenant under this
Section for any lease year or partial lease year shall be less than the actual
amount due from Tenant for such lease year or partial lease year as shown on
such statement, Tenant shall pay Landlord such deficiency within thirty (30)
days after the furnishing of such statement, and if the amount paid by Tenant
hereunder for any such lease year or partial lease year shall exceed such actual
amount due from Tenant for such lease year or partial lease year, such excess
shall be credited against the next installment due under this Section, or upon
the expiration of the term of this Lease, such excess shall be refunded to
Tenant.
ARTICLE XXXXXIV
FACSIMILES:
Landlord and Tenant agree that a facsimile
transmission of any original document shall have the same effect as an original.
Any signature required on an original shall be completed when a facsimile copy
has been signed. The parties agree that signed facsimile copies of documents
shall be appended to the originals thereof, integrated therewith and given full
effect as if an original.
ARTICLE XXXXXV TENANT'S RESPONSIBILITY REGARDING
HAZARDOUS SUBSTANCES
Section
1. HAZARDOUS SUBSTANCE. The
term "Hazardous Substances", as used in this Lease, shall include without
limitation, flammables, explosives, radioactive materials, asbestos,
polychlorinated biphenyl’s (PCBs), chemicals knows to cause cancer of
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental
authority.
Section
2.
TENANT'S RESTRICTIONS. Tenant shall be responsible
for:
(a) Any violation of any federal, state or local
law, ordinance or regulation now or hereafter enacted, related to environmental
conditions on, under, or about the premises, or arising from Tenant's use or
occupancy of the premises, including but not limited to, soil and ground water
conditions, or
(b) The use, generation, release, manufacture,
refining, production, processing, storage or disposal of any Hazardous Substance
on, under, or about the premises, or the transportation to or from the premises
of any Hazardous Substance.
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Section
3. ENVIRONMENTAL CLEAN-UP.
Tenant shall, at Tenant's own expense, comply with all laws regulating the use,
generation, storage, transportation or disposal of hazardous substance
("Laws").
Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities") under the
Laws.
Should any Authority or any third party demand
that a cleanup plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substance that occurs
during the term of this Lease, at or from the premises, or which arises at any
time from Tenant's use or occupancy of the premises, then Tenant shall, at
Tenant's own expense, prepare and submit the required plans and all related
bonds and other financial assurances; and Tenant shall carry out all such
cleaning plans.
Tenant shall, at Tenant's own expense, promptly
provide all information regarding the use, generation, storage, transportation,
or disposal of Hazardous Substances that is requested by Landlord. If Tenant
fails to fulfill any duty imposed under this Section 3 within a reasonable time,
Landlord may do so; and in such case, Tenant shall cooperate with Landlord in
order to prepare all documents Landlord deems necessary or appropriate to
determine the applicability of the Laws to premises and Tenant's use thereof,
and for compliance therewith, and Tenant shall execute all documents promptly
upon Landlord's request. No such action by Landlord and no attempt made by
Landlord to mitigate damages under any Law shall constitute a waiver of any of
Tenant's obligations under this Section 3.
Section
4. TENANT'S INDEMNITY. Tenant
shall indemnify, defend and hold harmless Landlord, the manager of the property
and their respective offices, directors, beneficiaries, shareholders, partners,
agents and employees from all fines, suits, procedures, claims and actions of
every kind, and all costs associated therewith (including attorneys' and
consultants' fees) arising out of or in any way connected with any deposit,
spill, discharge or other release of Hazardous Substances that occurs during the
term of this Lease, at or from the premises, or which arises at any time from
Tenant's use or occupancy of the premises or from Tenant's failure to provide
all information, make all submissions and take all steps required by all
Authorities under the Laws and all other environmental
laws.
Section
5.
SURVIVAL OF TENANT'S OBLIGATIONS AND LIABILITIES. Tenant's obligations and
liabilities under this paragraph shall survive the expiration of this Lease
Agreement.
ARTICLE XXXXXVI RIGHT OF FIRST REFUSAL TO LEASE
ADDITIONAL SPACE
In the event Landlord receives a bona fide offer
from a third party to lease additional space located on the Property (the "Lease
Offer") which Lease Offer Landlord desires to accept, Landlord shall give Tenant
written notice of the Lease Offer, including a description of the terms and
conditions contained therein, and Tenant shall have the first right to lease the
additional space upon the same terms and conditions as set forth in the Lease
Offer. Tenant's election must be made by delivery of written notice to Landlord
within three (3) business days after receipt of notice of the Lease Offer from
Landlord, and upon such exercise, Landlord and Tenant shall have an additional
ten (10) days in which to enter into a binding lease agreement upon the terms
set forth in the Lease Offer and otherwise acceptable to Landlord and Tenant.
In the event Tenant rejects the Lease Offer, fails to accept the Lease Offer
within the three (3) day period, or the lease agreement is not entered into
between Landlord and Tenant within the said ten (10) day period, Landlord shall
have the right to lease the additional space pursuant to the Lease Offer, and
upon such leasing, the Tenant's first right to lease offered additional space as
provided herein shall expire.
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ARTICLE XXXXXVII RIGHT OF FIRST REFUSAL TO
PURCHASE
In the event Landlord receives a bona fide offer
from a third party to purchase the building (the "Offer") which Offer Landlord
desires to accept, Landlord shall give Tenant written notice of the Offer,
including a description of the terms and conditions contained therein, and
Tenant shall have the first right to purchase the building upon the same terms
and conditions as set forth in the Offer. Tenant's election must be made by
delivery of written notice to Landlord within three (3) business days after
receipt of notice of the Offer from Landlord, and upon such exercise, Landlord
and Tenant shall have an additional ten (10) days in which to enter into a
binding purchase agreement upon the terms set forth in the Offer and otherwise
acceptable to Landlord and Tenant. In the event Tenant rejects the Offer, fails
to accept the Offer within the three (3) day period, or the purchase agreement
is not entered into between Landlord and Tenant within the said ten (10) day
period, Landlord shall have the right to sell the building pursuant to the
Offer, and upon such sale, the Tenant's first right to purchase the building as
provided herein shall expire.
ARTICLE XXXXXVIII OPTION TO
EXTEND:
During such time as Tenant shall be free
from default with reference to any of Tenant's obligations and liabilities
hereunder, Tenant, at Tenant's option shall have the right to extend the term of
this Lease for two (2) additional five (5) year period, upon the same terms and
conditions as are set forth herein, with the exception that the base rental to
be paid during the five (5) year extension shall be adjusted as
follows:
A. The annual Base Rent to be paid during each
five (5) year extension or option period shall be adjusted by eighty percent
(80%) of the total percentage increase from the base period of all items (all
items component of the revised Consumer Price Index -nearest major city average
for urban wage earners and clerical workers 1982-84=100), as published by the
Bureau of Labor Statistics of the U.S. Department of Labor.
In no event shall the adjustment of base rent
under this paragraph be less than a fifteen (15%) percent increase of base rent
paid during the last year of the initial term of this Lease or the preceding
option term. For the purpose of this Lease, the term "Base Period" shall refer
to the date which said Index is published which is closest to the 2000 Lease
Commencement Date. In the event such Index is discontinued, comparable
statistics on the purchasing power of the Consumer dollar published at the time
of said discontinuance by a responsible financial authority, shall be used for
making such computation.
B. Tenant shall not be required to pay the
Improvement Rent during any extension or option period.
C. Tenant shall exercise such option by giving
Landlord written notice thereof by registered or certified mail, return receipt
requested, not less than six (6) months prior to the expiration of the initial
term of this Lease.
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IN WITNESS WHEREOF, the parties have
hereunto set their hands and seals the day and year first above
written.
| LANDLORD: | ||
| JAGAR L.L.C., a Michigan limited liability company | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Its: Member | ||
| TENANT: | ||
| PICOMETRIX, INC., a Michigan corporation | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Its: Chief Executive Officer | ||
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