Exhibit 10.3 - Office Building Lease Between Rontal Investment Company
and Michigan Heritage Bancorp, Inc.
OFFICE BUILDING LEASE
*28270 Orchard Lake Road
Farmington Hills, Michigan
RONTAL INVESTMENT COMPANY,
AS LANDLORD,
AND
MICHIGAN HERITAGE BANCORP,
AS TENANT
DATED: August 31, 1998
*Street number for above building lease was later changed from 28270 to 28300
TABLE OF CONTENTS
Section Page
------- ----
1. Basic Lease Terms and Provisions...............1
2. Premises.......................................1
3. Term...........................................2
4. Rent...........................................4
5. Rent Adjustment................................5
6. Character of Occupancy.........................9
7. Services and Utilities........................10
8. Quiet Enjoyment...............................11
9. Maintenance and Repairs.......................11
10. Alterations and Additions.....................12
11. Entry by Landlord.............................13
12. Construction Liens............................13
13. Damage to Property, Injury to Persons.........14
14. Insurance.....................................14
15. Damage or Destruction to Building.............15
16. Condemnation..................................16
17. Assignment and Subletting.....................17
18. Estoppel Certificate..........................17
19. Default.......................................18
20. Completion of Premises........................21
21. Removal of Tenant's Property..................22
22. Holding Over..................................22
23. Parking Areas.................................22
24. Surrender and Notice..........................22
25. Acceptance of Premises by Tenant..............23
26. Subordination and Attornment..................23
27. Payments after Termination....................24
28. Authorities for Action and Notice.............24
29. Security Deposit..............................24
30. Liability of Landlord.........................24
31. Brokerage.....................................24
32. Signage.......................................25
33. Name of Building Project......................25
34. Measurement of Premises.......................25
35. Miscellaneous.................................25
36. Governmental Approvals/Landlord ..............27
37. Governmental Approvals/Tenant.................27
38. Landlord's Warranty ..........................27
(i)
00000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx
OFFICE BUILDING LEASE
THIS LEASE is made this 25 th day of August , 1998, between RONTAL
INVESTMENT COMPANY, a Michigan co-partnership, ("Landlord"), whose address is
00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000-0000 and MICHIGAN HERITAGE
BANCORP, a Michigan corporation ("Tenant"), whose address is 00000 Xxxxxxxx
Xxxx, Xxxx, Xxxxxxxx 00000.
1. Basic Lease Terms and Provisions:
The following is intended to summarize the principal
terms of this Lease, but is not intended to be all inclusive. In the event
that anything contained in this Section 1 conflicts with other provisions
hereinafter contained in this Lease, the latter shall be deemed to control in
the absence of express statements to the contrary.
A. Building: 00000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
B. Leased Premises: Suite No. 200 located on the
second (2nd) floor of the Building and
containing approximately 11,344 rentable
square feet. The term "rentable square feet"
is defined in Paragraph 34 of the Lease.
C. Lease Term: Term of fifteen (15) years,
commencing upon July 1, 1999 ("Commencement
Date"), and terminating upon June 30, 2014
("Termination Date").
D. Base Rent:
Monthly Annually
------- --------
Years 1 -5 $20,797.33 $249,658.00
Years 6 - 10 $23,633.33 $283,600.00
Years 11 - 15 See Paragraph 3(c)
E. Base Operating Expenses: $6.75 per rentable
square foot in the Building.
F. Use: General Office Purposes.
G. Maximum Occupancy: N/A.
H. Security Deposit: Intentionally Omitted.
I. Broker: N/A.
2. Premises:
Landlord hereby leases to Tenant those certain premises
designated on the Plans attached hereto as Exhibit "A" (the "Premises"), as
more particularly defined in subparagraph B of Paragraph 1 hereof, together
with a non-exclusive right, subject to the provisions hereof, to use all
appurtenances thereunto, including but not limited to, uncovered parking
areas and any other areas and facilities designated by Landlord for use in
common by tenants of the
Landlord: ______
Tenant: ______
1
Building. The Building, real property on which the same is situated, parking
areas, other areas and appurtenances are hereinafter collectively sometimes
called the "Building Complex". This Lease is subject to the terms, covenants
and conditions set forth herein and Tenant and Landlord each covenant as a
material part of the consideration for this Lease to keep and perform each
and all of said terms, covenants and conditions by it to be kept and
performed and that this Lease is made upon the condition of such performance.
Subject to the provisions of Paragraph 23 below, Tenant hereby acknowledges
that portions of the covered parking areas may be designated by Landlord for
use by tenants of the Building on an exclusive basis and that certain
portions of the uncovered parking areas may be designated by Landlord for the
exclusive use by tenants or other occupants of the Building.
3. Term:
(a) The term of this Lease shall be for the period
of years referred to in subparagraph C of
Paragraph 1 hereof (the "Primary Lease Term")
commencing at 12:01 a.m. on the Commencement
Date, and terminating at 12:00 midnight on
Termination Date, unless sooner terminated
pursuant to this Lease.
(b) The Commencement Date shall be the first day
of the month after the date on which Landlord
has delivered possession of the Premises to
Tenant Ready for Occupancy, as said term is
defined in Paragraph 20(a) hereof; provided,
however, the Premises shall not be deemed
Ready for Occupancy by Tenant unless Landlord
has provided Tenant with written notice at
least thirty (30) days prior to the date on
which Landlord anticipates the Premises shall
be delivered. Except as provided below, in the
event Landlord fails to deliver the Premises
on the Commencement Date because the Premises
are not then ready for occupancy, or for any
other cause beyond Landlord's control,
Landlord shall not be liable to Tenant for any
damages as a result of Landlord's delay in
delivering the Premises and the Commencement
Date shall be postponed until such date as the
Premises are ready for Tenant's occupancy and
the Termination Date shall be postponed for a
like number of days. In the event of any such
postponement, the parties agree to enter into
a Supplement to Lease at the time that the
Commencement Date is determined. Such
Supplement to Lease shall stipulate the
Commencement Date and Termination Date of this
Lease.
Notwithstanding anything to the contrary
hereinabove contained, in the event that
Landlord shall fail to deliver the possession
of the Premises Ready for Occupancy on or
before July 1, 1999, then Tenant shall be
entitled to a credit against the first full
installment(s) of Base Rent due to Landlord
hereunder an amount equal to the actual excess
holdover charge incurred by Tenant in Tenant's
existing premises. Further, in the event
Landlord fails to deliver possession of the
Premises to Tenant pursuant to the provisions
of this Lease on or before September 30, 1999,
then Tenant shall have the right, upon written
notice to Landlord delivered by Tenant on or
before October 15, 1999, to terminate this
Lease. In the event Tenant exercises the
foregoing election to terminate this Lease,
then, upon receipt of said notice, this Lease
shall cease and terminate and the parties
shall be released of any and all further
obligations hereunder.
For the purposes of this subparagraph, Tenant
existing premises shall be deemed to be those
premises currently occupied by Tenant and
located at:
(i) __________________________
__________________________
__________________________
and
(ii) __________________________
Tenant: ______
2
__________________________
__________________________
Tenant agrees to deliver to Landlord evidence
of the excess holdover costs actually incurred
by Tenant in its existing premises at the time
Tenant requests reimbursement of same from
Landlord pursuant to the foregoing. In
connection therewith, it is hereby agreed
that: (i) the existing premises shall be
deemed to contain, in the aggregate, not more
than 2,500 square feet; and (ii) Landlord
shall not be responsible for any portion of
excess holdover costs exceeding two hundred
(200%) percent of the rental cost prior to the
holdover period.
(c) It is understood and agreed by Landlord and
Tenant that the rent to be paid by Tenant
during years eleven (11) through fifteen (15)
of the Primary Lease Term shall be the
"prevailing market rate" for similar space in
the Building and in substantially equivalent
buildings in the general neighborhood of the
Building. The parties agree to negotiate, in
good faith, such rental based on leases
executed during the one (1) year period prior
to the commencement of the eleventh (11th)
lease year. For the purpose hereof,
substantially equivalent buildings shall be
deemed to be the following buildings:
[Weight Watchers], Xxxxxxx Xxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx
[Xxxxx Xxxxxx], Xxxxxxx Xxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx
[Mind], Xxxxxxx Xxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx
In no event, however, shall the rental to be
paid by Tenant during said years be less than
Twenty-Five Dollars ($25.00) per rentable
square foot, not more than Twenty-Seven
Dollars ($27.00) per rentable square foot.
(d) Provided Tenant is not in default under the
terms of this Lease at the time that the
expansion options hereinafter provided are to
be effectuated, Landlord agrees to use its
best efforts to make available to Tenant
expansion premises, each of which contain
approximately 2,500 rentable square feet of
floor space, at or about the commencement date
of the sixth (6th) lease year (the "First
Expansion Option") and at or about the
commencement date of the eleventh (11th) lease
year (the "Second Expansion Option"). In the
event Landlord has vacant space in the
Building available at or about said times to
enable Tenant to utilize the Expansion
Options, Landlord shall notify Tenant in
writing at least six (6) months prior to the
expected delivery date of such space and
Tenant shall have the right within thirty (30)
days after receipt of notice of such
availability to advise Landlord of its
intention to lease the space defined in
Landlord's notice. In the event Tenant
exercises either the First Expansion Option or
the Second Expansion Option, the parties shall
negotiate, in good faith, the terms and
conditions of Tenant's occupancy of such space
and execute an amendment incorporating the
same under the terms and conditions of this
Lease not later than sixty (60) days after the
date of Tenant's notice evidencing its
intention to lease such space. Possession of
any such expansion space shall be delivered in
an "as is" condition, unless otherwise agreed
by the parties, except, in any event, Landlord
shall be responsible for any demolition work
necessary to accommodate the installation of
Tenant's improvements therein.
In the event Tenant fails to exercise its
right to occupy the space covered by the First
Expansion Option or the Second Expansion
Option or, having exercised same, the parties
are unable to agree upon the terms and
conditions of Tenant's occupancy of same, then
the rights granted herein to Tenant, with
respect to the applicable
Tenant: ______
3
space, shall cease and terminate and Landlord
shall be authorized to lease said space to a
third (3rd) party without any further right of
Tenant therein.
(e) In the event that any portion of the second
(2nd) floor of the Building contiguous to the
Premises shall become available for occupancy
after the initial occupancy thereof by a third
party, then Landlord shall notify Tenant as to
the availability of same and Tenant shall have
ten (10) days after receipt of such notice to
advise Landlord as to its interest in entering
into a lease agreement covering such space. In
the event Tenant elects to lease such space
designated in Landlord's notice, the parties
shall have thirty (30) days after the date of
Tenant's positive response during which to
agree upon the terms and conditions of
Tenant's occupancy of such space, which terms
and conditions shall be based upon the then
prevailing market rate for the Building. In
the event Tenant fails to notify Landlord of
its interest in such space within the
appropriate time period after Landlord's
notification or, after having notified
Landlord of such interest, the parties are
unable to reach a mutually satisfactory
agreement regarding Tenant's occupancy of same
within fifteen (15) days after submission by
Landlord of a lease agreement containing the
terms and conditions agreed upon by the
parties, Landlord shall have the right to
lease such space to any other party.
(f) Provided Tenant is not in default under the
terms of this Lease at the time that the
option hereinafter granted is exercisable or
is to commence and Tenant has not assigned its
interest under this Lease (except for a
subsidiary or affiliate of Tenant), Tenant
shall have the right to extend the term of
this Lease for an additional period of five
(5) years (the "Renewal Term") on the same
terms and conditions contained in this Lease,
except for the increase in Base Rent as
hereinafter provided. Written notice of an
election by Tenant to extend the term of this
Lease must be delivered to Landlord by
certified mail, return receipt requested, at
least three hundred (300) days prior to the
commencement date of the Renewal Term, but not
more than three hundred sixty-five (365) days
prior to such commencement date. In the event
the option hereinabove provided is not
exercised within and in the manner herein
provided, then the same shall expire and be of
no further force or effect so long as Landlord
has given Tenant written notice at least four
hundred (400) days prior to the commencement
date of the applicable Renewal Term.
In the event Tenant exercises the option to
extend the term of this Lease, as hereinabove
set forth, the Base Rent to be paid by Tenant
during the Renewal Term shall be the product
obtained by multiplying the total number of
rentable square feet then occupied by Tenant
in the Building by Thirty-Two Dollars
($32.00).
4. Rent:
Tenant shall pay to Landlord, as Base Rent for the
Premises, the rental set forth in subparagraph D of Paragraph 1 hereof. All
rent shall be payable on the first day of each calendar month during the term
hereof. All such rent shall be paid in advance without deduction or offset at
the office of Landlord or to such other person or at such other place as
Landlord may designate in writing.
In the event Tenant shall fail to pay, within five (5)
days after the same is due and payable, any installment of the Base Rent or
any additional rent to be paid by Tenant to Landlord under the terms of this
Lease, then such unpaid amounts shall bear interest from the due date thereof
to the date of payment at the rate of ten percent (10%) per annum. In any
event, however, Tenant shall be charged a service charge with respect to each
monthly installment of rental not received by the fifth (5th) day of the
calendar month for which said installment is due. Such service charge shall
reimburse Landlord for the additional administrative expenses incurred by
Landlord in connection with the collection of such late installment of
monthly rental. The service charge shall be Twenty
Tenant: ______
4
and 00/100ths Dollars ($20.00) for any rental not paid by the fifth (5th) day
of the month and Fifty and 00/100ths Dollars ($50.00) for any rental not paid
by the fifteenth (15th) day of such month.
5. Rent Adjustment:
(a) The following terms shall have the following
meanings with respect to the provisions of this Paragraph 5:
(1) "Base Operating Expenses" shall
mean the amount set forth in
subparagraph E of Paragraph 1 of
this Lease.
(2) "Tenant's Pro Rata Share" shall
mean that proportion of any
increase in Operating Expenses (as
hereinafter defined) for any
calendar year over the Base
Operating Expenses as the total
number of rentable square feet of
the Premises compares to the total
number of rentable square feet in
the Building. At such time, if
ever, any space is added to the
Premises pursuant to the terms of
this Lease, Tenant's Pro Rata Share
shall be increased by the
percentage calculated by dividing
the number of additional rentable
square feet by the total number of
rentable square feet in the
Building.
(3) "Operating Expenses" shall:
Tenant: ______
5
A. Mean all reasonable operating
expenses of any kind or nature with
respect to the Building Complex as
determined in accordance with
industry standards and shall
include, but not be limited to, all
general and special real estate or
ad valorem taxes or special
assessments levied against the
Building Complex by the State of
Michigan or any instrumentality
thereof or any taxes or assessments
which shall be levied on the
Building Complex in lieu of or in
addition to all or any portion of
any such real estate taxes or
assessments, or which shall be
levied on the rentals of the
Building Complex (other than net
income taxes), but in this case,
the computation shall be made as if
this were Landlord's only building,
or which shall be levied on
Landlord as a result of the use,
ownership or operation of the
Building Complex; the cost of
Building Complex supplies; costs
incurred in connection with all
energy sources for the common areas
of the Building Complex such as
propane, butane, natural gas,
steam, electricity, solar energy
and fuel oil; the costs of water
and sewer services; janitorial
services; general maintenance and
normal repair of the Building
Complex, including the heating and
air conditioning systems of the
Building Complex; landscaping
maintenance; maintenance, repair,
striping and replacement of all
parking areas furnished by Landlord
for use by tenants of the Building;
the cost of rubbish removal, snow
removal and service contracts for
the elevator, HVAC and alarm
systems of the Building Complex;
the cost of such security guard and
protection services as may be
deemed reasonably necessary by
Landlord; insurance in amounts and
coverage determined by Landlord,
including fire and extended
coverage, rental interruption,
sprinkler leakage, plate glass and
public liability insurance (but
Tenant shall have no interest in
such insurance or the proceeds
thereof); labor costs incurred in
the operation and maintenance of
the Building Complex, including
wages and other payments, costs to
Landlord of Workmen's Compensation
and disability insurance; payroll
taxes, and welfare benefits;
professional building management
fees; legal, accounting, inspection
and consultation fees incurred in
connection with the Building
Complex solely to the extent
required by any governmental
authority or any other inspection
or consultation fees required for
the normal prudent operation of the
Building Complex and not normally
the responsibility of the managing
agent; the cost of any capital
improvements to the Building
Complex of a repair or replacement
nature only, which costs shall be
amortized over the useful life of
the capital improvement (as
designated by Internal Revenue
Service regulations and
guidelines); the cost of obtaining
an extended roof warranty for the
period between the eleventh (11th)
and fifteenth (15th) years of the
Primary Lease Term inspection and
consultation fees for professional
roof inspections to be conducted by
Landlord; all other common area
costs and expenses relating to the
Building Complex and all other
charges properly allocable to the
repair, operation and maintenance
of the Building Complex in
accordance with generally accepted
accounting principles. If the
Building is not fully occupied
during any calendar year, those
components of Operating Expenses
for such year which vary according
to the level of occupancy shall be
adjusted to reflect the greater of:
(a) actual occupancy; or (b) a 95
percent (95%) occupancy of the
Building. If Landlord selects an
accrual accounting basis for
calculating Operating Expenses,
Operating Expenses shall be deemed
to have been paid when such
expenses have accrued in accordance
with generally accepted accounting
principles.
B. Expressly exclude Landlord's
income taxes, Single Business
Tenant: ______
6
Tax or any gross receipt tax;
leasing commissions, interest on
debt or amortization payments on
any mortgages or deeds of trust and
rental under any ground or
underlying leases or lease; any
costs or expenses which are
incurred in connection with, or for
the benefit of, any specific
tenant; advertising and promotional
expenditures; the cost of any
repairs to the extent of any
insurance proceeds recovered by
Landlord with respect thereto; and
any other expense which under
generally accepted accounting
principles would not be considered
a normal maintenance or operating
expense, except as otherwise
specifically provided herein.
C. Expressly exclude, in addition,
any costs relating to the repair or
maintenance of the roof or outer
walls of the Building. Any cost
incurred in replacing the parking
areas of the Building Complex
during the ten (10) year period
subsequent to the Commencement Date
shall also be excluded. In the
event Landlord shall make a capital
expenditure, including, but not
limited to, the replacement of said
parking areas at any time
subsequent to said tenth (10th)
anniversary date, then the cost(s)
thereof shall be amortized over the
useful life for such replacement
(as determined by Landlord's
independent certified public
accountant) and the proportionate
share of such cost allocable to any
year subsequent to the performance
of such replacement shall be
included in the Operating Expenses
during each subsequent year during
the balance of the Primary Lease
Term and any Renewal Term.
(b) It is hereby agreed that during each calendar
year of the term hereof, Tenant shall pay to
Landlord Tenant's Pro Rata Share of the amount
of any excess Operating Expenses over Tenant's
Pro Rata Share of the Base Operating Expenses.
Beginning with the first calendar year in
which this Lease commences, the monthly rent
to be paid by Tenant to Landlord shall be
increased by an amount equal to 1/12th of the
estimated increase, if any, in Tenant's Pro
Rata Share of the Operating Expenses for each
calendar year over Tenant's Pro Rata Share of
the Base Operating Expenses, with an
adjustment to be made between the parties at a
later date as hereinafter provided. However,
in computing the increases in the monthly
rental for Tenant's Pro Rata Share of the
Operating Expenses for any calendar year based
upon the estimated increase thereof, there
shall be taken into account any prior
increases in the monthly rent attributable to
Tenant's Pro Rata Share of the estimated
increases in such Operating Expenses. As soon
as practicable following the end of each
calendar year during the term of this Lease,
[but in no event later than ninety (90) days
thereafter], Landlord shall submit to Tenant a
statement setting forth the exact amount of
the increase, if any, in Tenant's Pro Rata
Share of the Operating Expenses for the
calendar year just completed over Tenant's Pro
Rata Share of the Base Operating Expenses, and
the difference, if any, between Tenant's
actual Pro Rata Share of the Operating
Expenses for the calendar year just completed
and the estimated amount of Tenant's Pro Rata
Share of the Operating Expenses (on which its
rent was based) for such year. Prior to the
end of each calendar year during the term
hereof, Landlord shall submit to Tenant a
statement setting forth the amount reasonably
estimated by Landlord as the increase, if any,
in the Base Operating Expenses for the
subsequent year and the amount of the
increased monthly rent to be paid by Tenant
for such subsequent year computed in
accordance with the foregoing provisions. It
is to be understood and agreed that all
estimating provisions as referenced above
shall be computed on the basis of the
Operating Expenses being adjusted as if the
Building were not less than 95 percent (95%)
occupied. To the extent that Tenant's Pro Rata
Share of the actual Operating Expenses for the
period covered by such statement is different
from the estimated increases upon which
Tenant: ______
7
Tenant paid rent during the calendar year just
completed, Landlord shall pay to Tenant, or
Tenant shall pay to Landlord, as the case may
be, the difference within thirty (30) days
following receipt of said statement from
Landlord, but in no event shall such statement
be submitted later than ninety (90) days after
the end of the calendar year. In addition,
with respect to the monthly rent, until Tenant
receives such statement, Tenant's monthly rent
for the new calendar year shall continue to be
paid at the then current rate, but Tenant
shall commence payment to Landlord of the
monthly installments of rent on the basis of
the statement beginning on the first day of
the month following the month in which Tenant
receives such statement. Moreover, Tenant
shall pay to Landlord, or shall receive a
credit against the next installment due
hereunder, as the case may be, on the date
required for the first payment of rent as
adjusted, the difference, if any, between the
monthly installments of rent so adjusted and
the monthly installments of rent actually paid
during the new calendar year. In no event
shall any adjustment hereunder result in a
decrease in the Base Rent or additional rent
payable pursuant to any other provision of
this Lease (except escalation pursuant to this
Paragraph 5), it being agreed that the
payments under this Paragraph 5 are an
obligation supplemental to Tenant's obligation
to pay the Base Rent.
(c) If Tenant occupies the Premises for less than
a full calendar year during the first or last
calendar years of the term hereof, Tenant's
Pro Rata Share for such partial year shall be
calculated by proportionately reducing the
Base Operating Expenses to reflect the number
of months in such year during which Tenant
occupied the Premises (the "Adjusted Base
Operating Expenses"). The Adjusted Base
Operating Expenses shall then be compared with
the actual Operating expenses for said partial
year to determine the amount, if any, of any
increases in the actual Operating Expenses for
such partial year over the Adjusted Base
Operating Expenses. Tenant shall pay its Pro
Rata Share of any such increases within thirty
(30) days following receipt of notice thereof.
(d) Landlord's failure during the Lease term to
prepare and deliver any statements or bills,
or Landlord's failure to make a demand under
this Paragraph or under any other provision of
this Lease shall not in any way be deemed to
be a waiver of, or cause Landlord to forfeit
or surrender, its rights to collect any items
of additional rent which may have become due
pursuant to this Paragraph during the term of
this Lease, except as otherwise specifically
set forth in this Lease and provided that if
such failure shall exist for more than twelve
(12) months, Landlord shall be deemed to have
waived any claim therefor. Tenant's liability
for all additional rent due under this
Paragraph 5 shall survive the expiration or
earlier termination of this Lease.
(e) Statements required hereunder shall be in
reasonable detail identifying the amount and
nature of the estimates, and/or the final
accounting calculations. Tenant shall have the
right to request an audit of Landlord's books
and records relating to Operating Expenses, at
its expense. If there is a dispute arising out
of Landlord's calculations, Landlord shall
make copies of its records available to
Tenant. (Any dispute not resolved between the
parties shall be submitted to binding
arbitration.
(f) Notwithstanding anything to the contrary
contained in this Paragraph 5, in no event
shall Tenant be responsible for the payment of
Tenant's Pro Rata Share of any Operating
Expenses allocable to the calendar year of
1999.
Thereafter, commencing with Tenant's Pro Rata
Share for the calendar year 2000 and
continuing throughout the balance of the
Primary Lease Term and any Renewal Term,
Landlord agrees that
Tenant: ______
8
those components of Operating Expenses,
exclusive of real estate taxes, utility
charges, insurance premiums, and capital
expenditures permitted to be amortized
pursuant to Paragraph 5(a)C. above, shall not
exceed one hundred five percent (105%) of the
Operating Expenses, on a cumulative basis, for
the same components incurred during the
preceding calendar year.
6. Character of Occupancy:
(a) The Premises are to be used only for those
purposes set forth in subparagraph F of
Paragraph 1 hereof and any other incidental
use which is legally permitted and is not
inconsistent with the character and type of
tenancy found in first-class office buildings
in the Detroit, Michigan Metropolitan Area.
The parties hereto agree that Tenant shall
have the right to install a drive-up window
and ATM machine (or in a kiosk in the parking
lot) at the Premises so long as Landlord can
obtain all required municipal approvals
therefor, which Landlord shall undertake to
obtain as part of the overall approval
process. The design and location of any kiosk
shall be subject to the reasonable approval of
Landlord. Tenant shall maintain and repair, at
Tenant's sole expense, any such kiosk. Tenant
shall also, at Tenant's expense, remove the
kiosk at the expiration of the lease term and
repair any damage to the parking lot caused by
such removal. The parties hereto further agree
that the Premises may only be occupied by the
maximum number of persons stipulated in
subparagraph G of Paragraph 1 hereof and in
the event of any violation of such provision,
Tenant agrees, upon notice from Landlord, to
reduce the number of persons occupying the
Premises to the maximum number set forth
therein.
(b) Tenant shall not suffer nor permit the
Premises nor any part thereof to be used in
any manner, nor anything to be done therein,
nor suffer or permit anything to be brought
into or kept therein, which would in any way
(i) make void or voidable any fire or
liability insurance policy then in force with
respect to the Building; (ii) make
unobtainable from reputable insurance
companies authorized to do business in
Michigan any fire insurance with extended
coverage, or liability, elevator, boiler or
other insurance required to be furnished by
Landlord under the terms of any lease or
mortgage to which this Lease is subordinate at
standard rates provided Tenant is not deprived
of its intended use of the Premises; (iii)
cause or in Landlord's reasonable opinion be
likely to cause physical damage to the
Building or any part thereof; (iv) constitute
a public or private nuisance; (v) impair, in
the reasonable opinion of Landlord, the
appearance, character or reputation of the
Building; (vi) discharge objectionable fumes,
vapors or odors into the Building air
conditioning system or into the Building flues
or vents not designed to receive them or
otherwise in such manner as may unreasonably
offend other occupants; (vii) impair or
interfere with any of the Building services or
impair or interfere with or tend to impair or
interfere with the use of any of the other
areas of the Building by, or occasion
discomfort, or annoyance to Landlord or any of
the other tenants or occupants of the
Building, any such impairment or interference
to be in the reasonable judgment of Landlord;
(viii) increase on an ongoing periodic basis
the pedestrian traffic in and out of the
Premises or the Building above an ordinary
level; (ix) constitute waste; or (x) make any
noise or set up any vibration which will
disturb other tenants, except in the course of
permitted repairs or alterations.
(c) Tenant shall not use the Premises nor permit
anything to be done in or about the Premises
which will in any way conflict with any law,
statute, ordinance or governmental rule or
regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall give
prompt notice to Landlord of any notice it
receives of the violation of any law or
requirement of any public authority with
respect to the Premises or the use or
occupation thereof. Landlord shall give prompt
Tenant: ______
9
notice to Tenant of any notice it receives
relative to the violation by Tenant of any law
or requirement of any public authority with
respect to the Premises or the use or
occupation thereof.
7. Services and Utilities:
(a) Landlord agrees, without charge except as
provided herein, and in accordance with
standards reasonably established from time to
time prevailing for office buildings in the
Metropolitan Detroit Area, to furnish water to
the Building for use in lavatories and
drinking fountains (and to the Premises if the
plans for the Premises so provide); during the
hours from 8:00 a.m. to 6:00 p.m. on Monday
through Friday and 8:00 a.m. to 1:00 p.m. on
Saturday, (excluding holidays) to furnish such
heated or cooled air to the Premises as may,
in the judgment of Landlord, be reasonably
required for the comfortable use and occupancy
of the Premises provided that Tenant complies
with the recommendations of Landlord's
engineer regarding occupancy and use of the
Premises; to provide janitorial services for
the Premises (including such interior and
exterior window washing as may be determined
by Landlord but no less frequently than two
(2) times per year), such janitorial services
to be provided after 6:00 p.m. five (5) days a
week or Monday through Friday (excluding legal
holidays); during ordinary business hours to
cause electric current to be supplied for
lighting the public portions of the Building
or Building Complex; and to furnish such snow
removal services to the Building Complex as
may, in the judgment of Landlord, be
reasonably required for safe access to the
Building Complex.
Landlord agrees to maintain the Building at a
habitable level at all times and Tenant will
have the ability to override the system to
provide, at Tenant's cost, for HVAC before or
after Building standard hours.
(b) Tenant hereby agrees to pay all charges with
respect to electrical services furnished to or
used within the Premises. Landlord agrees to
provide and install appropriate meters at the
Premises for measuring Tenant's consumption of
electricity as part of Landlord's construction
work pursuant to Paragraph 20 (a) hereof.
Tenant shall pay all such charges for
electricity within ten (10) days after the
date of submission of a monthly statement to
Tenant. Charges for electricity shall be at
the same rates, terms and conditions as rates,
terms and conditions for comparable services
from The Detroit Edison Company.
(c) If Tenant requires water in excess of that
usually furnished or supplied for use in the
Premises as general office space, Tenant shall
first procure the consent of Landlord for the
use thereof. Tenant agrees to pay to Landlord
such amounts as Landlord reasonably determines
are necessary to cover the costs of such
increased use of water, including any cost
incurred in connection with the installation
of a meter required to measure such use.
(d) Tenant agrees that Landlord shall not be
liable for failure to supply any heating, air
conditioning, elevator, electrical,
janitorial, lighting or other services during
any period when Landlord uses reasonable
diligence to supply such services, or during
any period Landlord is required to reduce or
curtail such services pursuant to any
applicable laws, rules or regulations, now or
hereafter in force or effect, it being
understood that Landlord may discontinue,
reduce or curtail such services, or any of
them (either temporarily or permanently), at
such times as it may be necessary by reason of
accident, unavailability of employees,
repairs, alterations, improvements, strikes,
lockouts, riots, acts of God, application of
applicable laws, statutes, rules and
regulations, or due to any other happening
beyond the control of Landlord. In the event
of any such interruption, reduction or
discontinuance of Landlord's services (either
temporary or permanent), Landlord shall not be
liable for damages to persons or
Tenant: ______
10
property as a result thereof, except for
damage relating solely to its negligence, nor
shall the occurrence of any such event in any
way be construed as an eviction of Tenant or
cause or permit an abatement, reduction or
setoff of rent, or operate to release Tenant
from any of Tenant's obligations hereunder.
Anything in this Lease to the contrary
notwithstanding, if the stoppage of services
which Landlord is obligated to provide for
Tenant causes any portion of the Premises to
become unusable by Tenant or access to the
Premises is barred thereby for more than three
(3) consecutive days, then and in that event,
Tenant shall be entitled to a pro rata
abatement of rent as to such unusable portion
of Premises commencing with the fourth (4th)
day that the same are unusable; provided;
however, that Tenant shall not be entitled to
any abatement of rent due to unusability: (a)
caused by any act or omission of Tenant or any
of Tenant's servants, employees, agents,
visitors or licensees; or (b) where Tenant
requests Landlord to make a decoration,
alteration, improvement or addition; or (c)
where the repair in question or the services
in question are those which Tenant is
obligated to make or furnish under any of the
provisions of this Lease.
(e) Whenever heat generating machines or equipment
are used by Tenant in the Premises which
affect the temperature otherwise maintained by
the air conditioning system, Landlord reserves
the right to install supplementary air
conditioning units in the Premises in the
event Landlord's independent consulting
engineer determines same are reasonably
necessary as a result of Tenant's use of
lights or equipment which generate heat loads
in excess of those for which the HVAC system
is designed and the cost therefor, including
the cost of installation, operation and
maintenance thereof, shall be paid by Tenant
to Landlord upon demand by Landlord.
8. Quiet Enjoyment:
Landlord warrants and agrees to defend Tenant in the
quiet enjoyment and possession of the Premises during the term of this Lease
so long as Tenant complies with the provisions hereof. In the event of any
transfer or transfers of Landlord's interest in the Premises or in the real
property which is inclusive of the Premises other than a transfer for
security purposes only, the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer other than the obligation to refund any
security deposits, rebates, operating expenses or other payments or damages
for which Landlord was liable or for which a claim arose during its period of
ownership.
9. Maintenance and Repairs:
(a) Landlord agrees to maintain the Building and
Building Complex in a first class condition
consistent with the standards therefor set by
similar type buildings located in the same
general area as the Building. Landlord shall
make all necessary repairs and replacements to
the non-leasable areas of the Building, to the
heating, air conditioning and electrical
systems located in the Building, and to the
common areas, including parking areas, and
Landlord shall also make all repairs to the
Premises which are structural in nature;
provided, however, that Tenant shall make all
repairs and replacements arising from its act,
neglect or default and that of its agents,
servants and employees.
In the event that the Landlord shall deem it
necessary, or be required by any governmental
authority to repair, alter, remove,
reconstruct or improve any part of the
Premises or of the Building (unless the same
result from Tenant's act, neglect, default or
mode of operation in which event Tenant shall
make all such repairs, alterations and
improvements), then the same shall be made by
Landlord with reasonable dispatch, and should
the making of such repairs, alterations or
improvements cause any interference with
Tenant's use
Tenant: ______
11
of the Premises, such interference shall not
relieve Tenant from the performance of its
obligations hereunder.
(b) Tenant, at Tenant's sole cost and expense,
except for services furnished by Landlord
pursuant to Paragraph 7 hereof, shall maintain
the Premises in good order, condition and
repair, reasonable wear and tear excepted; and
to the extent such items exceed Building
standards, plumbing pipes, electrical wiring,
switches, fixtures and other special items
subject to the provisions of Paragraph 15. In
the event Tenant fails to maintain the
Premises in good order, condition and repair,
Landlord shall give Tenant detailed written
notice to do such acts as are reasonably
required to so maintain the Premises. In the
event Tenant fails to promptly commence such
work and diligently prosecute it to
completion, then Landlord shall have the
right, but shall not be required, to do such
acts and expend such funds at the expense of
Tenant as are reasonably required to perform
such work. Landlord shall have no liability to
Tenant for any damage, inconvenience or
interference with the use of the Premises by
Tenant as a result of performing any such
work, other than liability for the gross
negligence and wilful misconduct of Landlord,
its agents or employees.
(c) Landlord and Tenant shall each do all acts
required to comply with all applicable laws,
ordinances, regulations and rules of any
public authority relating to their respective
maintenance obligations as set forth herein.
10. Alterations and Additions:
(a) Tenant shall make no alterations, additions or
improvements to the Premises or any part
thereof without obtaining the prior written
consent of Landlord, which shall consent not
be unreasonably withheld. Landlord may impose,
as a condition to the aforesaid consent, such
requirements as Landlord may deem necessary in
its reasonable judgment, including without
limitation the manner in which the work is
done, a right to require Tenant to use
Landlord's contractor and the times during
which it is to be accomplished. Tenant further
agrees not to connect with Building systems,
including electric wires, water pipes, fire
safety and mechanical systems, any apparatus,
machinery or device without the prior written
consent of Landlord.
(b) All alterations and additions to the Premises
(whether performed with or without Landlord's
consent as provided herein), shall be deemed a
part of the real estate and the property of
Landlord and shall remain upon and be
surrendered with the Premises as a part
thereof without molestation, disturbance or
injury at the end of said term, whether by
lapse of time or otherwise, unless Landlord,
by notice given to Tenant no later than
fifteen (15) days after Tenant's written
request to install any alterations, additions
or improvements after the completion of the
initial improvements to the Premises by
Landlord, shall require Tenant to remove all
or any of such alterations or additions
(excluding standard Tenant finish work and
non-movable office walls), and in such event,
Tenant shall promptly remove, at its sole cost
and expense, such alterations and additions
and restore the Premises to the condition in
which the Premises were prior to the making of
the same, reasonable wear and tear excepted.
Any such removal, whether required or
permitted by Landlord, shall be at Tenant's
sole cost and expense, and Tenant shall
restore the Premises to the condition in which
the Premises were prior to the making of the
same, reasonable wear and tear excepted. All
movable partitions, trade fixtures, machines
and equipment which are installed in the
Premises by or for the account of Tenant,
without expense to Landlord, and can be
removed without permanent structural damage to
or defacement of the Building or the Premises,
and all furniture, furnishings and other
articles of personal property owned by Tenant
Tenant: ______
12
and located in the Premises (all of which are
herein called "Tenant's Property"), shall be
and remain the property of Tenant and may be
removed by it at any time during the term of
this Lease. However, if any of Tenant's
Property is removed, Tenant shall repair or
pay the cost of repairing any damage to the
Building or the Premises resulting from such
removal. All additions or improvements which
are to be surrendered with the Premises shall
be surrendered with the Premises, as a part
thereof, at the end of the term or the earlier
termination of this Lease.
(c) If Landlord authorizes persons requested by
Tenant to perform any alterations, repairs,
modifications or additions to the Premises,
then prior to the commencement of any such
work, Tenant shall on request of Landlord
deliver to Landlord certificates issued by
insurance companies qualified to do business
in the State of Michigan evidencing that
Workmen's Compensation, public liability
insurance and property damage insurance, all
in amounts, with companies and on forms
reasonably satisfactory to Landlord, are in
force and effect and maintained by all such
contractors and subcontractors engaged by
Tenant to perform such work. All such policies
shall name Landlord as an additional insured.
Each such certificate shall provide that the
same may not be cancelled or modified without
thirty (30) days prior written notice to
Landlord.
(d) Tenant, at its sole cost and expense, shall
cause any permitted alterations, decorations,
installations, additions or improvements in or
about the Premises to be performed in
compliance with all applicable requirements of
insurance bodies having jurisdiction, and in
such manner as not to interfere with, delay,
or impose any additional expense upon Landlord
in the construction, maintenance or operation
of the Building, and so as to maintain
harmonious labor relations in the Building.
11. Entry by Landlord:
Landlord and its agents shall have the right to enter
the Premises at all reasonable times during normal business hours, and upon
reasonable notice [at least twenty-four (24) hours prior to proposed entry,
except in the event of emergency] for the purpose of examining or inspecting
the same, to supply any services to be provided by Landlord for Tenant
hereunder, to show the same to prospective purchasers of the Building, to
make such alterations, repairs, improvements or additions to the Premises or
to the Building of which they are a part as Landlord may deem necessary, and
to show the same to prospective tenants of the Premises (provided that in the
event of a bona fide emergency, Landlord may enter the Premises without
advance notice solely for the purpose of taking emergency action). Landlord
may for the purpose of supplying scheduled janitorial services, enter the
Premises by means of a master key without liability to Tenant and without
affecting this Lease.
12. Construction Liens:
Tenant shall pay or cause to be paid all costs for work
done by Tenant or caused to be done by Tenant on the Premises of a character
which will or may result in liens on Landlord's interest therein and Tenant
will keep the Premises free and clear of all construction liens and other
liens on account of work done for Tenant or persons claiming under it. Tenant
and Landlord each hereby agree to indemnify, defend and save each other
harmless of and from all liability, loss, damage, injury, costs or expenses,
including reasonable attorneys' fees, incurred on account of any claims of
any nature whatsoever for work performed for, or materials or supplies
furnished to Tenant, including lien claims of laborers, materialmen or
others. Should any such liens be filed or recorded against the Premises with
respect to work done or for materials supplied to or on behalf of Tenant or
any action affecting the title thereto be commenced, Tenant shall cause such
liens to be removed of record within five (5) days after notice from
Landlord. If Tenant desires to contest any such claim of lien, it shall
furnish Landlord with adequate security of at least 125 percent (125%) of the
amount of the claim, plus estimated costs and interest, and if a final
judgment establishing the validity or existence of any lien for any amount is
entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in paying any
Tenant: ______
13
charge for which such construction lien or suit to foreclose such a lien has
been recorded or filed and shall not have given Landlord security as
aforesaid, Landlord may (but without being required to do so) pay such lien
or claim and any costs, and the amount so paid, together with reasonable
attorneys' fees incurred in connection therewith, shall be immediately due
from Tenant to Landlord.
13. Damage to Property, Injury to Persons:
(a) Tenant hereby indemnifies and agrees to hold
Landlord harmless from and to defend Landlord
against any and all claims of liability for
any injury or damage to any person or property
whatsoever occurring in, on or about the
Building Complex, the Premises or any part
thereof and provided that such injury or
damage is caused in whole by the act, neglect,
fault or omission of any duty with respect to
the same by Tenant, its agents, contractors or
employees. Tenant further indemnifies and
agrees to hold Landlord harmless from and
against any and all claims arising from any
breach or default in the performance of any
obligation on Tenant's part to be performed
under the terms of this Lease, or arising from
any act or negligence of Tenant, or any of its
agents, contractors or employees from and
against all costs, reasonable attorneys' fees
and expenses.
Landlord agrees to indemnify and hold Tenant
harmless from and defend Tenant against any
and all claims of liability for any injury or
damage to any person or property whatsoever
when such injury or damage is caused in part
or whole by the act, neglect, fault or
omission of any duty with respect to same by
Landlord, its agents, contractors, employees
or invitees.
(b) Landlord shall not be liable to Tenant for any
damage by or from any act or negligence of any
co-tenant or other occupant of the Building,
or by any owner or occupant of adjoining or
contiguous property. To the extent not covered
by normal fire and extended coverage
insurance, Tenant agrees to pay for all damage
to the Building Complex, as well as all damage
to tenants or occupants thereof, caused by
Tenant's misuse or neglect of the Premises or
any portion of the Building Complex.
(c) Neither Landlord nor its agents shall be
liable for any damage to property entrusted to
Landlord, its agents or employees of the
building manager, if any, nor for the loss or
damage to any property by theft or otherwise,
nor for any injury or damage to persons or
property resulting from fire, explosion,
falling plaster, steam, gas, electricity,
sprinkler system leakage, water or rain which
may leak from any part of the Building or from
the pipes, appliances or plumbing works
therein or from the roof, street or subsurface
or from any other place or resulting from
dampness or any other cause whatsoever;
provided, however, nothing contained herein
shall be construed to relieve Landlord from
liability for any property damage, personal
injury resulting from its negligence or wilful
misconduct or that of its agents, servants or
employees. Landlord or its agents shall not be
liable for interference with the lights, view
or other incorporeal hereditaments. Landlord
and Tenant shall give prompt notice mutual
notice to each other in case of fire or
accidents in the Premises or in the Building
or of defects therein or in the fixtures or
equipment.
(d) In case any action or proceeding is brought
against Landlord or Tenant by reason of any
obligation on their respective parts to be
performed under the terms of this Lease, or
arising from any of their acts or negligence
of them, respectively, or of their agents or
employees, such party, upon notice from the
other party shall defend the same at its
expense by counsel reasonably satisfactory to
the party giving such notice.
14. Insurance:
Tenant: ______
14
(a) Tenant shall procure and keep in effect public
liability and property damage insurance,
naming the Landlord as an additional insured,
with companies and in a form satisfactory to
Landlord, in the sum of One Million and
00/100ths Dollars ($1,000,000.00) for damages
resulting to one person, and Two Million and
00/100ths Dollars ($2,000,000.00) for damages
resulting from one casualty, and Two Million
and 00/100ths Dollars ($2,000,000.00) for
damage to property resulting from any one
occurrence and shall deliver said policies or
certificates to Landlord prior to initial
occupancy and continuously maintain such
coverage thereafter. Landlord shall have the
right, upon not less than thirty (30) days'
prior written notice, to raise the limits
hereinabove set forth not more often than
every three (3) years during the term of this
Lease. Landlord may, procure the same for the
account of Tenant, and the cost thereof shall
be paid to Landlord upon receipt by Tenant of
bills therefor.
(b) Tenant shall procure and maintain at its own
cost during the term of this Lease and any
extension hereof fire and extended coverage
insurance on property of Tenant.
(c) Each party agrees to use its best efforts to
include in each of its policies insuring
against loss, damage or destruction by fire or
other casualty (insuring the Building and
Landlord's Property therein and rental value
thereof, in the case of Landlord, and insuring
Tenant's Property and business interest in the
Premises [business interruption insurance] in
the case of Tenant), a waiver of the insurer's
right of subrogation against the other party,
or if such waiver should be unobtainable or
unenforceable (i) an express agreement that
such policy shall not be invalidated if the
insured waives the right of recovery against
any party responsible for a casualty covered
by the policy before the casualty, or (ii) any
other form of permission for the release of
the other party. If such waiver, agreement or
permission shall not be, or shall cease to be,
obtainable without additional charge or at
all, the insured party shall so notify the
other party promptly after learning thereof.
In such case, if the other party shall so
elect and shall pay the insurer's additional
charge therefor, such waiver, agreement or
permission shall be included in the policy, or
the other party shall be named as an
additional insured in the policy. Each such
policy which shall so name a party hereto as
an additional insured shall contain, if
obtainable, agreements by the insurer that the
policy will not be cancelled without at least
thirty (30) days prior notice to both insureds
and that the act or omission of one insured
will not invalidate the policy as to the other
insured.
(d) Each party hereby releases the other party
with respect to any claim (including a claim
for negligence) which it might otherwise have
against the other party for loss, damage or
destruction with respect to its property
(including the Building, Building Complex, the
Premises and rental value or business
interruption) occurring during the term of
this Lease, but only to the extent to which it
is covered by insurance under a policy or
policies containing a waiver of subrogation or
permission to release liability or naming the
other party as an additional insured as
provided above.
(e) Any building employee to whom property shall
be entrusted by or on behalf of Tenant shall
be deemed to be acting as Tenant's agent with
respect to such property and neither Landlord
nor its agents shall be liable for any damage
to the property of Tenant or others entrusted
to employees of the Building, nor for the loss
of or damage to any property of Tenant by
theft or otherwise.
15. Damage or Destruction to Building:
(a) In the event the Premises or the Building are
damaged by fire or other insured casualty and
the insurance proceeds have been made
available therefor by the holder or holders of
any mortgages or
Tenant: ______
15
deeds of trust covering the Building, the
damage shall be repaired by and at the expense
of Landlord to the extent of such insurance
proceeds available therefor, provided such
repairs and restoration can, in Landlord's
reasonable opinion, be made within one hundred
eighty (180) days after the occurrence of such
damage without the payment of overtime or
other premiums, and until such repairs and
restoration are completed the rent shall be
abated in proportion to the part of the
Premises which is unusable by Tenant in the
conduct of its business (but there shall be no
abatement of rent by reason of any portion of
the Premises being unusable for a period equal
to three [3] days or less). Landlord agrees to
notify Tenant within thirty (30) days after
such casualty if it estimates that it will be
unable to repair and restore the Premises
within said one hundred eighty (180) day
period. Such notice shall set forth the
approximate length of time Landlord estimates
will be required to complete such repairs and
restoration. Notwithstanding anything to the
contrary contained herein, if Landlord cannot
or estimates it cannot make such repairs and
restoration within said one hundred eighty
(180) day period, then Tenant may, by written
notice to Landlord, cancel this Lease as of
the date of the occurrence of such damage,
provided such notice is given to Landlord
within fifteen (15) days after Landlord
notifies Tenant of the estimated time for
completion of such repairs and restoration.
Except as provided in this Paragraph 15, there
shall be no abatement of rent and no liability
of Landlord by reason of any injury to or
interference with Tenant's business or
property arising from the making of any such
repairs, alterations or improvements in or to
fixtures, appurtenances and equipment. Tenant
understands that Landlord will not carry
insurance of any kind on Tenant's furniture
and furnishings or on any fixtures or
equipment removable by Tenant under the
provisions of this Lease, and that Landlord
shall not be obligated to repair any damage
thereto or replace the same. Landlord shall
not be required to repair any injury or damage
by fire or other cause, or to make any repairs
or replacements of improvements installed in
the Premises by or for Tenant.
(b) In case the Building throughout shall be so
injured or damaged, whether by fire or
otherwise (though the Premises may not be
affected, or if affected, can be repaired
within said ninety (90) days) that Landlord,
within sixty (60) days after the happening of
such injury, shall decide not to reconstruct
or rebuild the Building, then notwithstanding
anything contained herein to the contrary,
upon notice in writing to that effect given by
Landlord to Tenant within said sixty (60)
days, Tenant shall pay the rent, properly
apportioned up to date of such occurrence,
this Lease shall terminate from the date of
delivery of said written notice, and both
parties hereto shall be freed and discharged
from all further obligations hereunder,
provided that if usable in part Tenant may
hold over at pro rata rent for upon to one
hundred fifty (150) days.
16. Condemnation:
(a) If the whole of the Premises or so much
thereof as to render the balance unusable by
Tenant for the proper conduct of its business
shall be taken under power of eminent domain
or transferred under threat thereof, then this
Lease, at the option of either Landlord or
Tenant exercised by either party giving notice
to the other of such termination within thirty
(30) days after such conveyance or taking
possession whichever is earlier, shall
forthwith cease and terminate and the rent
shall be duly apportioned as of the date of
such taking or conveyance. No award for any
partial or entire taking shall be apportioned,
and Tenant hereby assigns to Landlord any
award which may be made in such taking or
condemnation, together with any and all rights
of Tenant now or hereafter arising in or to
the same or any part thereof; provided,
however, that nothing contained herein shall
be deemed to give Landlord any interest in or
to require Tenant to assign to Landlord any
award made to Tenant for the
Tenant: ______
16
taking of personal property and fixtures
belonging to Tenant and/or for expenses of
moving to a new location or for Tenant's
interest in the leasehold estate. In the event
of a partial taking which does not result in a
termination of this Lease, rent shall be
reduced in proportion to the reduction in the
size of the premises so taken and this Lease
shall be modified accordingly. Promptly after
obtaining knowledge thereof, Landlord or
Tenant, as the case may be, shall notify the
other of any pending or threatened
condemnation or taking affecting the Premises
or the Building.
(b) If all or any portion of the Premises shall be
condemned or taken for governmental occupancy
for less than ninety (90) days, this Lease
shall not terminate and Tenant shall be
entitled to receive the entire award therefor
(whether paid as damages, rent or otherwise)
unless the period of governmental occupancy
extends beyond the expiration of this Lease,
in which case Landlord shall be entitled to
such part of such award as shall be properly
allocable to the cost of restoration of the
Premises to the extent any such award is
specifically made for such purpose, and the
balance of such award shall be apportioned
between Landlord and Tenant as of the date of
such expiration. If the termination of such
governmental occupancy is prior to the
expiration of this Lease, Tenant shall, to the
extent an award has been made for such
purpose, restore the premises as nearly as
possible to the condition in which they were
prior to the condemnation or taking.
17. Assignment and Subletting:
Tenant covenants not to assign or transfer this Lease or
hypothecate, or mortgage the same or sublet the Premises or any part thereof
or use or permit them to be used for any purpose other than above-mentioned,
without the consent of Landlord.
Notwithstanding anything to the contrary hereinabove
contained, it is hereby agreed that Landlord shall not be deemed to have
unreasonably withheld its consent if Landlord refuses to consent to a
proposed assignment or subletting of the Premises or any portion thereof for
use by the proposed assignee or subtenant: (i) as an office furnishing drug,
alcohol or similar counselling services; (ii) as an office of any
governmental agency (including, without limitation, social service agency);
or (iii) for any purpose which is not consistent with the then existing
tenant mix in the building.
Notwithstanding the above, Tenant shall have the right
(i) to assign or sublet to any entity which is a subsidiary or affiliate of
Tenant or which Tenant merges with or into; or (ii) to sublet approximately
four thousand (4,000) rentable square feet to users approved by Tenant,
without Landlord's approval.
18. Estoppel Certificate:
Tenant further agrees at any time and from time to time,
on or before ten (10) days after written request by Landlord, to execute,
acknowledge and deliver to Landlord an estoppel certificate certifying (to
the extent it believes the same to be true) that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified, and stating the modifications), that
there have been no defaults thereunder by Landlord or Tenant (or if there
have been defaults, setting forth the nature thereof), and the date to which
the rent and other charges have been paid, if any, it being intended that any
such statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser of all or any portion of Landlord's interest herein, or
a holder of any mortgage encumbering any portion of the Building Complex.
Tenant's failure to deliver such statement within such time shall be a
default under this Lease and shall be conclusive upon Tenant that:
(a) This Lease is in full force and effect without
modification except as may be represented by
Landlord;
(b) There are no uncured defaults in Landlord's
performance;
(c) Not more than one (1) month's rent has been paid in
advance; and
Tenant: ______
17
(d) The amount of any security deposit paid to, and held
by, Landlord.
19. Default:
(a) The following events (herein referred to as an
"event of default") shall constitute defaults of
Tenant hereunder:
(1) Tenant shall default in the due and
punctual payment of rent, or any
other amounts payable hereunder,
and such default shall continue for
ten (10) days after receipt of
written notice from Landlord;
(2) This Lease or the estate of Tenant
hereunder shall be transferred to
or shall pass to or devolve upon
any other person or party in
violation of this Lease, except
with respect to an assignment of
subletting permitted under
Paragraph 17 above, or except as
permitted herein;
(3) This Lease or the Premises or any
part thereof shall be taken upon
execution or by other process of
law directed against Tenant, or
shall be taken upon or subject to
any attachment at the instance of
any creditor or claimant against
Tenant, and said attachment shall
not be discharged or disposed of
within sixty (60) days after the
levy thereof;
(4) Tenant shall file a petition in
bankruptcy or insolvency or for
reorganization or arrangement under
the bankruptcy laws of the United
States or under any insolvency act
of any state, or shall voluntarily
take advantage of any such law or
act by answer or otherwise, or
shall be dissolved or shall make an
assignment for the benefit of
creditors, unless such action will
permit Tenant to continue
performance of this Lease;
(5) Involuntary proceedings under any
such bankruptcy law or insolvency
act or for the dissolution of
Tenant shall be instituted against
Tenant, or a receiver or trustee
shall be appointed of all or
substantially all of the property
of Tenant, and such proceeding
shall not be dismissed or such
receivership or trusteeship vacated
within ninety (90) days after such
institution or appointment unless
such action will permit Tenant to
continue performance of this Lease;
(6) Tenant shall fail to take
possession of the Premises within
ninety (90) days of the
Commencement Date;
(7) Tenant shall abandon the Premises
for sixty (60) consecutive days;
and
(8) Tenant shall fail to perform any of
the other agreements, terms,
covenants or conditions hereof on
Tenant's part to be performed, and
such non-performance shall continue
for a period of thirty (30) days
after notice thereof by Landlord to
Tenant, or if such performance
cannot be reasonably had within
such thirty (30) day period, Tenant
shall not in good faith have
commenced such performance with
such thirty (30) day period and
shall not diligently proceed
therewith to completion.
(b) Upon the occurrence of an event of default,
Landlord shall have the right, at its
election, then or at any time thereafter and
while any such event of default shall
continue, either:
(1) To give Tenant written notice of
Landlord's intention to terminate
this Lease on the date of such
given notice or on any later date
specified therein, whereupon on the
date
Tenant: ______
18
specified in such notice, Tenant's
right to possession of the Premises
shall cease and this Lease shall
thereupon be terminated, except as
to Tenant's liability, as if the
expiration of the term fixed in
such notice were the end of the
term herein originally demised; or
(2) To re-enter and take possession of
the Premises or any part thereof,
and repossess the same as
Landlord's former estate and expel
Tenant and those claiming through
or under Tenant, and remove the
effects of both or either, using
such force for such purposes as may
be reasonably necessary, without
being liable for prosecution
thereof, without being deemed
guilty of any manner of trespass,
and without prejudice to any
remedies for arrears of rent or
preceding breach of covenants or
conditions. Should Landlord elect
to re-enter as provided in this
Paragraph 19(b)(2) or should
Landlord take possession pursuant
to legal proceedings or pursuant to
any notice provided for by law,
Landlord may, from time to time,
without terminating this Lease,
relet the Premises or any part
thereof in Landlord's or Tenant's
name, but for the account of
Tenant, for such term or terms
(which may be greater or less than
the period which would otherwise
have constituted the balance of the
term of this Lease) and on such
conditions and upon such other
terms (which may include
concessions of free rent and
alteration and repair of the
Premises) as Landlord, in its sole
discretion, may determine, and
Landlord may collect and receive
the rents therefor. Landlord shall
in no way be responsible or liable
for any failure to relet the
Premises, or any part thereof, or
for any failure to collect any rent
due upon such reletting. No such
re-entry or taking possession of
the Premises by Landlord shall be
construed as an election on
Landlord's part to terminate this
Lease unless a written notice of
such intention be given to Tenant.
No notice from Landlord hereunder
or under a forcible entry and
detainer statute or similar law
shall constitute an election by
Landlord to terminate this Lease
unless such notice specifically so
states. Landlord reserves the right
following any such re-entry and/or
reletting to exercise its right to
terminate this Lease by giving
Tenant such written notice, in
which event this Lease will
terminate as specified in said
notice.
Notwithstanding anything to the
contrary hereinabove contained, it
is understood and agreed that
Landlord shall use its best efforts
to mitigate any damages caused by
an event of default by Tenant on a
commercially reasonable basis;
provided, however, Landlord shall
not be obligated to prefer the
Premises in any reletting to other
vacant premises in the Building.
(c) In the event that Landlord does not elect
to terminate this Lease as permitted in
Paragraph 19(b)(1) hereof, but on the
contrary, elects to take possession as
provided in Paragraph 19(b)(2), Tenant shall
pay to Landlord: (i) the rent and other sums
as herein provided, which would be payable
hereunder if such repossession had not
occurred, less (ii) the net proceeds, if any,
of any reletting of the Premises after
deducting all Landlord's expenses in
connection with such reletting, including, but
without limitation, all repossession costs,
brokerage commissions, legal expenses,
attorneys' fees, expenses of employees,
alteration and repair costs and expenses of
preparation for such reletting. If, in
connection with any reletting, the new lease
term extends beyond the existing term, or the
premises covered thereby include other
premises not part of the Premises, a fair
apportionment of the rent received from such
reletting and the expenses incurred in
connection therewith as provided aforesaid
will be made in determining the net proceeds
from such reletting.
Tenant: ______
19
(d) In the event this Lease is terminated,
Landlord shall be entitled to recover
forthwith against Tenant as damages for loss
of the bargain and not as a penalty, an
aggregate sum which, at the time of such
termination of this Lease, represents the
excess, if any, of the aggregate of the rent
and all other sums payable by Tenant hereunder
that would have accrued for the balance of the
term over the aggregate rental value of the
Premises (such rental value to be computed on
the basis of a tenant paying not only a rent
to Landlord for the use and occupation of the
Premises, but also such other charges as are
required to be paid by Tenant under the terms
of this Lease) for the balance of such term,
both discounted to present worth at the rate
of 10 percent (10%) per annum.
(e) Suit or suits for the recovery of the amounts
and damages set forth above may be brought by
Landlord, from time to time, at Landlord's
election and nothing herein shall be deemed to
require Landlord to await the date whereon
this Lease or the term hereof would have
expired by limitation had there been no such
default by Tenant or no such termination, as
the case may be. Each right and remedy
provided for in this Lease shall be cumulative
and shall be in addition to every other right
or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by
statute or otherwise, including, but not
limited to, suits for injunctive relief and
specific performance. The exercise or
beginning of the exercise by Landlord of any
one or more of the rights or remedies provided
for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later
exercise by Landlord of any and all other
rights or remedies provided for in this Lease
or now or hereafter existing at law or in
equity or by statute or otherwise. All costs
incurred by Landlord in connection with
collecting any amounts and damages owing by
Tenant pursuant to the provisions of this
Lease or to enforce any provision of this
Lease, including reasonable attorneys' fees
from the date any such matter is turned over
to an attorney, shall also be recoverable by
Landlord from Tenant.
(f) No failure by Landlord to insist upon the
strict performance of any agreement, term,
covenant or condition hereof or to exercise
any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial
rent during the continuance of any such
breach, shall constitute a waiver of any such
breach of such agreement, term, covenant or
condition. No agreement, term, covenant or
condition hereof to be performed or complied
with by Tenant, and no breach thereof, shall
be waived, altered or modified except by
written instrument executed by Landlord. No
waiver of any breach shall affect or alter
this Lease, but each and every agreement,
term, covenant and condition hereof shall
continue in full force and effect with respect
to any other then existing or subsequent
breach thereof. Notwithstanding any unilateral
termination of this Lease, this Lease shall
continue in force and effect as to any
provisions hereof which require observance or
performance of Landlord or Tenant subsequent
to termination.
(g) Any amounts paid by either party to cure any
defaults of the other hereunder, shall, if not
repaid by the other party within ten (10) days
of demand by the party paying such amount,
thereafter bear interest at the rate of two
percent (2%) above the prime rate as
established by the First of America Bank -
Detroit, N.A., or as quoted in the Wall Street
Journal, whichever is higher, until paid.
(h) Landlord and Tenant hereby acknowledge that a
subsidiary of Tenant, Michigan Heritage Bank,
a Michigan financial corporation, has entered
into a lease with Landlord covering other
Premises in the Building (the "Subsidiary
Lease"). The parties agree that any default by
the tenant under the Subsidiary Lease, shall
constitute an event of default under this
Lease entitling Landlord to exercise all
remedies
Tenant: ______
20
available to Landlord in the event of default
hereunder as if Tenant had committed an event
of default hereunder.
20. Completion of Premises:
(a) Landlord has agreed to complete the Premises
as more fully set forth in plans and
specifications to be prepared by Landlord and
approved by Tenant. In connection with the
completion of the Premises, Landlord shall
contribute the sum of $27.50 per rentable
square foot in connection with the
installation of: (i) suite entrance door; (ii)
partitions; (iii) interior doors; (iv) ceiling
treatment; (v) wall treatment; (vi) window
covering treatment; (vii) floor treatment;
(viii) light fixtures; (ix) light switches;
(x) electrical wall outlets; (xi) telephone
outlets; (xii) sound conditioning; and (xiii)
any other improvements over and above, and
alterations to, the standard building shell
necessary to prepare the Premises for Tenant's
occupancy. In the event, Tenant does not
utilize the entire contribution available from
Landlord, the amount not used by Tenant shall
be a credit against rent and other charges
owed by Tenant under this Lease. In any event,
Landlord shall not have any obligation for the
repair or replacement of any portions of the
interior of the Premises which are damaged or
wear out during the term hereof, regardless of
the cause therefor, including, but not limited
to, carpeting, draperies, window coverings,
wall coverings, painting or any of Tenant's
Property or betterments in the Premises,
except as otherwise specifically set forth in
this Lease. Except as otherwise provided in
Paragraph 3 of this Lease, the postponement of
rent and extension of the Commencement Date as
herein provided for such period shall be in
full settlement for all claims which Tenant
might have. If Tenant wishes to take
possession of all or any part of the Premises
prior to the date the Premises are Ready for
Occupancy, it must first secure the prior
written consent of Landlord, and in such
event, all terms and provisions of this Lease
shall apply. "Ready for Occupancy" as that
term is used herein shall mean the date when
all major construction aspects of the Premises
to be performed by Landlord to the extent set
forth in the approved plans and
specifications, are completed although minor
items are not completed (including, but not
limited to, touch-up plastering or repainting
which does not unreasonably interfere with
Tenant's ability to carry on its business in
the Premises), all common areas and lobbies
are finished in accordance with building
standards, interior and exterior lighting
installed, parking lot and covered parking
areas completed and striped and construction
equipment and refuse containers used in
conjunction with the construction are removed,
and HVAC has been tested and fully functional.
The certificate of the architect (or other
representative of Landlord) in charge of
supervising the completion of the Premises and
the issuance of a temporary certificate of
occupancy shall control the date upon which
the Premises are Ready for Occupancy.
(b) Tenant shall be permitted to enter into the
Premises for the purpose of installing
furniture, fixtures and equipment and other
leasehold improvements, including, but not
limited to wall and floor coverings, millwork
and draperies, subject to the terms of any
prior written approval given by Landlord
therefor (which approval shall not be
unreasonably withheld), prior to the
Commencement Date at its sole risk and with no
obligation to pay rent and provided that such
entry and work do not unreasonably interfere
in any way with the performance of Landlord's
work. At any time during such period of prior
entry, if Landlord notifies Tenant that
Tenant's entry or work is interfering with or
delaying the performance of work to be
performed by Landlord, Tenant shall forthwith
discontinue any further work and shall remove
from the Premises, and shall cause its workmen
or contractors to remove therefrom, any
equipment, materials or installations which
are the subject of Landlord's notice.
(c) In the event that this Lease provides that
Landlord shall cause any
Tenant: ______
21
work to be performed in the Premises for
Tenant, then the cost of such work shall be
paid by Tenant on or before the tenth (10th)
day after receipt of an invoice from Landlord
for such completed job.
(d) At or before the commencement of the eleventh
(11th) year of the Primary Lease Term,
Landlord shall make available to Tenant a
renovation and remodeling allowance in an
amount equal to the product obtained by
multiplying the total number of rentable
square feet then occupied by Tenant in the
Building by Five Dollars ($5.00). Said amount
shall be disbursed by Landlord to Tenant upon
presentation to Landlord of proof of payment
for all alterations and renovations made by
Tenant at or about said time.
21. Removal of Tenant's Property:
All movable furniture and personal effects of Tenant not
removed from the Premises within sixty (60) days after the vacation or
abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without notice to Tenant and without obligation to account therefor, and
Tenant shall pay Landlord for all expenses incurred in connection with the
disposition of such property.
22. Holding Over:
Should Tenant, with Landlord's written consent, hold
over after the termination of this Lease, Tenant shall become a tenant from
month to month only upon each and all of the terms herein provided as may be
applicable to such month to month tenancy and any such holding over shall not
constitute an extension of this Lease. During such holding over, Tenant shall
pay rent equal to 125 percent (125%) of the last monthly rental rate and the
other monetary charges as provided herein. Such tenancy shall continue until
terminated by Landlord or Tenant by a written notice of its intention to
terminate such tenancy given at least ten (10) days prior to the date of
termination of such monthly tenancy.
23. Parking Areas:
Tenant, its employees, agents and visitors agree to obey
and abide by all rules and regulations established, modified and amended from
time to time by Landlord for the safety, protection, cleanliness and
preservation of order in connection with such parking ingress and egress and
other automobile and pedestrian use of the Building Complex. Except as
otherwise provided below with respect to customers of Tenant, Landlord
reserves the right to specifically assign and reassign from time to time any
and all of said parking spaces among the tenants of the Building in any
manner in which Landlord deems reasonable, in Landlord's sole judgment and
opinion or to allow the reservation of parking spaces for the specific use of
designated tenants of the Building. Landlord shall not be responsible to
Tenant, its employees, agents or visitors for violations by any other tenant,
visitor or user of said parking facilities of said rules and regulations or
assignment of spaces, nor shall Landlord have any obligation to police the
unauthorized use of any such parking spaces. Tenant shall have the right to
utilize, at no additional expense, four (4) covered parking spaces at the
Building for the exclusive use of Tenant's employees. In no event shall
Landlord be responsible for policing the unauthorized use of Tenant's spaces.
24. Surrender and Notice:
Upon the expiration or earlier termination of this
Lease, Tenant shall promptly quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear excepted,
and Tenant shall remove all of its movable furniture and other effects and
such alterations, additions and improvements as Landlord shall require Tenant
to remove pursuant to Paragraph 10. In the event Tenant fails to vacate the
Premises on a timely basis as required, Tenant shall be responsible to
Landlord for all costs incurred by Landlord as a result of such failure,
including, but not limited to, any amounts required to be paid to third
parties who were to have occupied the Premises.
Tenant: ______
22
25. Acceptance of Premises by Tenant:
Taking possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises were in the condition
agreed upon between Landlord and Tenant, and acknowledgment of satisfactory
completion of the fix-up work which Landlord has agreed in writing to
perform, except as otherwise set forth herein or as stated in a written punch
list delivered to Landlord within twenty (20) days after the Commencement
Date.
26. Subordination and Attornment:
(a) This Lease, and all rights of Tenant
hereunder, are and shall be subject and
subordinate in all respect to all present and
future ground leases, overriding leases and
underlying leases and/or grants of term of the
land and/or the Building or the Building
Complex now or hereafter existing and to all
mortgages, deeds of trust and building loan
agreements, including leasehold mortgages,
deeds of trust and building loan agreements,
which may now or hereafter affect the Building
or the Building Complex or any of such leases,
whether or not such mortgages or deeds of
trust shall also cover other lands or
buildings, to each and every advance made or
hereafter to be made under such mortgages or
deeds of trust, and to all renewals,
modifications, replacements and extensions of
such leases and such mortgages or deeds of
trust. This Paragraph shall be self-operative
and no further instrument of subordination
shall be required. In confirmation of such
subordination, Tenant shall promptly execute
and deliver any instrument, in recordable form
if required, that Landlord, the lessor of any
such lease or the holder of any such mortgage
or deed of trust, or any of their respective
successors in interest may reasonably request
to evidence such subordination. The leases to
which this Lease is, at the time referred to,
subject and subordinate pursuant to this
Paragraph are hereinafter sometimes called
"superior lease" and the mortgages or deeds of
trust to which this Lease is, at the time
referred to, subject and subordinate are
hereinafter sometimes called "superior
mortgages". The lessor of a superior lease or
the beneficiary of a superior mortgage or
their successors in interest are hereinafter
sometimes collectively referred to as a
"superior party".
(b) Tenant shall take no steps to terminate this
Lease, without giving written notice to such
superior party, and a reasonable opportunity
to cure (without such superior party being
obligated to cure), any default on the part of
Landlord under this Lease, provided that
Tenant has been given written notice of the
name and address of any such superior party.
(c) In the event any proceedings are brought for
the foreclosure of, or in the event of the
conveyance by deed in lieu of foreclosure of,
or in the event of the exercise of the power
of sale under, any superior mortgage, Tenant
hereby attorns to, and covenants and agrees to
execute an instrument in writing reasonably
satisfactory to the new owner whereby Tenant
attorns to, such successor in interest and
recognizes such successor as the Landlord
under this Lease.
(d) If, in connection with the procurement,
continuation or renewal of any financing for
which the Building or the Building Complex, or
of which the interest of the lessee therein
under a superior lease, represents collateral
in whole or in part, an institutional lender
shall request reasonable modifications of this
Lease as a condition of such financing, Tenant
will not unreasonably withhold its consent
thereto provided that such modifications do
not increase the obligations of Tenant under
this Lease or adversely affect any rights of
Tenant or decrease the obligations of Landlord
under this Lease.
(e) So long as Tenant is not in default under this
Lease, Landlord agrees to obtain a
non-disturbance agreement from any superior
party.
Tenant: ______
23
27. Payments after Termination:
No payments of money by Tenant to Landlord after the
termination of this Lease, in any manner, or after giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, shall
reinstate, continue or extend the term of this Lease or affect any notice
given to Tenant prior to the payment of such money, it being agreed that
after the service of notice of the commencement of a suit or other final
judgment granting Landlord possession of the Premises, Landlord may receive
and collect any sums of rent due, or any other sums of money due under the
terms of this Lease or otherwise exercise its rights and remedies hereunder.
The payment of such sums of money, whether as rent or otherwise, shall not
waive said notice or in any manner affect any pending suit or judgment
theretofore obtained.
28. Authorities for Action and Notice:
(a) Except as herein otherwise provided, Landlord
may act in any matter provided for herein by
its building manager or any other person who
shall from time to time be designated in
writing.
(b) All notices or demands required or permitted
to be given to Landlord hereunder shall be in
writing, and shall be deemed duly served when
received, if hand delivered, or five (5) days
after deposited in the United States mail,
with proper postage prepaid, certified or
registered, return receipt requested,
addressed to Landlord at its principal office
in the Building, or at the most recent address
of which Landlord has notified Tenant in
writing. All notices or demands required to be
given to Tenant hereunder shall be in writing,
and shall be deemed duly served when received
if hand delivered or within five (5) days
after deposited in the United States mail,
with proper postage prepaid, certified or
registered, return receipt requested,
addressed to Tenant at its principal office in
the Building. Either party shall have the
right to designate a different address to
which notice is to be mailed by serving on the
other party a written notice in the manner
hereinabove provided.
29. Security Deposit: [Intentionally Omitted]
30. Liability of Landlord:
Tenant shall look only to Landlord's estate and interest
in the Building (or to the proceeds thereof) for the satisfaction of Tenant's
remedies for the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default by
Landlord under this Lease, and no other property or other assets of Landlord
shall be subject to levy, execution or other enforcement, procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease and
neither Landlord nor any of the partners comprising the partnership which is
the Landlord herein, shall be liable for any deficiency. Nothing contained in
this Paragraph shall be construed to permit Tenant to offset against rents
due a successor landlord, a judgment (or other judicial process) requiring
the payment of money by reason of any default of a prior landlord, except as
otherwise specifically set forth herein.
31. Brokerage:
Landlord agrees to be responsible for any fee or
brokerage commission due to Kirco Management Services, Ltd. in connection
with the execution of this Lease. Tenant agrees to be responsible for any fee
or brokerage commission due to Colliers Trerice Xxxxx in connection with the
execution of this Lease. Landlord and Tenant each hereby agree to indemnify
and hold the other harmless of and from any and all loss, cost, damage or
expense (including, without limitation, all counsel fees and disbursements)
by reason of any claim of or liability to any other broker claiming through
it and arising out of or in connection with the execution and delivery of
this Lease. In the event any claim shall be made by any other broker who
shall claim to have negotiated this Lease on behalf of Tenant or to have
introduced Tenant to the Building or to Landlord, Tenant shall have the right
to defend any such action by counsel to be selected by Tenant and approved by
Tenant: ______
24
Landlord, which approval shall not be unreasonably withheld, and in the event
such broker shall be successful in any such action, Tenant shall, in addition
to making payment of the claim of such broker, be responsible for all counsel
fees incurred in such action. Landlord agrees to be responsible for any fee
or commission due to Kirco Management Service, Ltd., with respect to the
execution of this Lease and Tenant agrees to be responsible for any fee or
commission due to Trerice Xxxxx, with respect to the execution of this Lease.
32. Signage:
Tenant shall have the right to be the only tenant
identified on the exterior of the Building in an area not more than thirty
(30) square feet. The design, wording, location and manner of attachment of
Tenant's exterior building sign shall be subject to Landlord's prior written
approval and Tenant shall be responsible for obtaining, at Tenant's sole cost
and expense, all municipal approvals required therefor. In addition, in the
event Landlord installs a monument sign at the Building Complex and allows
more than one tenant of the Building to be identified thereon, then Tenant
also shall be entitled to be identified thereon on the same terms and
conditions as are applicable to the other tenants. Except as provided above,
no other sign, advertisement or notice shall be inscribed, painted or affixed
on any part of the inside or outside of the Building unless of such color,
size and style and in such place upon or in the Building, as shall be first
designated by Landlord, but there shall be no obligation or duty on Landlord
to allow any sign, advertisement or notice to be inscribed, painted or
affixed on any part of the inside or outside of the Building. A directory in
a conspicuous place, with the names of Tenant, not to exceed two names per
1,000 square feet of space contained in the Premises, shall be provided by
Landlord. Any necessary revision to such directory shall be made by Landlord
at Tenant's expense, within a reasonable time after notice from Tenant of the
change making the revision necessary. Landlord shall have the right to remove
all non-permitted signs without notice to Tenant, and at the expense of
Tenant.
33. Name of Building Project:
Landlord hereby reserves the right, at any time and from
time to time, without notice to Tenant, to name of the Building or thereafter
change the Building name, at Landlord's sole discretion.
34. Measurement of Premises:
The rentable square footage of the Premises, as stated
in Paragraph 1 hereof, shall be determined by the Building architect and is
subject to final construction documents and actual measurement of the
Premises by the Building architect. All measurements shall be made in
accordance with the American National Standard, Method for Measuring Floor
Area in Office Buildings, ANSI Z65.1 - 1990, also known as the "BOMA
Standard", applied on a building wide, fully multi-tenant basis. The Base
Rent and other charges due hereunder shall be adjusted based upon such
measurement by the Building architect.
35. Miscellaneous:
(a) The rules and regulations attached hereto and
marked Exhibit "B", as well as such rules and
regulations as may hereafter be adopted by
Landlord for the safety, care and cleanliness
of the Premises and the Building and the
preservation of good order thereon, are hereby
expressly made a part hereof, and Tenant
agrees to obey all such rules and regulations.
The violation of any of such rules and
regulations by Tenant shall be deemed a breach
of this Lease by Tenant affording Landlord all
the remedies set forth herein. Landlord shall
not be responsible to Tenant for the
nonperformance by any other tenant or occupant
of the Building of any of said rules and
regulations. Notwithstanding the provisions of
this Paragraph 35, Landlord agrees that it
will not change or modify the rules and
regulations or adopt new rules and regulations
as to: (i) diminish or otherwise reduce the
specific obligations of Landlord to perform
under the terms and conditions of this Lease
or (ii) interfere with Tenant's use and
enjoyment of the Premises, or (iii) interfere
with the conduct of Tenant's normal business.
Tenant: ______
25
(b) The term "Landlord", as used in this Lease, so
far as covenants or obligations on the part of
Landlord are concerned, shall be limited to
mean and include only the owner or owners of
the Building at the time in question, and in
the event of any transfer or transfers of the
title thereto, Landlord herein named (and in
the case of any subsequent transfers or
conveyances, the then grantor) shall be
automatically released from and after the date
of such transfer or conveyance of all
liability in respect to the performance of any
covenants or obligations on the part of
Landlord contained in this Lease thereafter to
be performed and relating to events occurring
thereafter; provided that any funds in the
hands of Landlord or the then grantor at the
time of such transfer in which Tenant has an
interest shall be turned over to the grantee,
and any amount then due and payable to Tenant
by Landlord or the then grantor under any
provisions of this Lease shall be paid to
Tenant.
(c) If any clause or provision of this Lease is
illegal, invalid or unenforceable under
present or future laws effective during the
term of this Lease, then and in that event, it
is the intention of the parties hereto that
the remainder of this Lease shall not be
affected thereby, and it is also the intention
of the parties to this Lease that in lieu of
each clause or provision of this Lease that is
illegal, invalid or unenforceable, there shall
be added as a part of this Lease a clause or
provision as similar in terms to such illegal,
invalid or unenforceable clause or provision
as may be possible and be legal, valid and
enforceable, provided such addition does not
increase or decrease the obligations of or
derogate from the rights or powers of either
Landlord or Tenant.
(d) The captions of each paragraph are added as a
matter of convenience only and shall be
considered of no effect in the construction of
any provision or provisions of this Lease.
(e) Except as herein specifically set forth, all
terms, conditions and covenants to be observed
and performed by the parties hereto shall be
applicable to and binding upon their
respective heirs, administrators, executors
and assigns. The terms, conditions and
covenants hereof shall also be considered to
be covenants running with the land.
(f) If there is more than one entity or person
which or who are the Tenants under this Lease,
the obligations imposed upon Tenant under this
Lease shall be joint and several.
(g) No act or thing done by Landlord or Landlord's
agent during the term hereof, including, but
not limited to, any agreement to accept
surrender of the Premises or to amend or
modify this Lease, shall be deemed to be
binding upon Landlord unless such act or
things shall be by an officer of Landlord or a
party designated in writing by Landlord as so
authorized to act. The delivery of keys to
Landlord, or Landlord's agent, employees or
officers shall not operate as a termination of
this Lease or a surrender of the premises. No
payment by Tenant, or receipt by Landlord, of
a lesser amount than the monthly rent herein
stipulated, shall be deemed to be other than
on account of the earliest stipulated rent,
nor shall any endorsement or statement on any
check or any letter accompanying any such, or
payment as rent, be deemed an accord and
satisfaction, and Landlord may accept such
check or payment without prejudice to
Landlord's right to recover the balance of
such rent or pursue any other remedy available
to Landlord.
(h) Landlord shall have the right to construct
other buildings or improvements in any plaza,
or other area designated by Landlord for use
by tenants or to change the location,
character, or make alterations of, or
additions to, any of said plazas, or other
areas.
Tenant: ______
26
(i) Tenant acknowledges and agrees that it has not
relied upon any statements, representations,
agreements or warranties except such as are
expressed in this Lease.
(j) Time is of the essence hereof.
(k) Tenant represents to Landlord that the party
executing this Lease is authorized to do so by
requisite action of the Board of Directors, or
partners, as the case may be, and agree upon
request to deliver to each other a resolution
or similar document to that effect.
(l) This Lease shall be governed by and construed
in accordance with the laws of the State of
Michigan.
(m) This Lease, together with the Addendum and
Exhibits attached hereto, contains the entire
agreement of the parties and may not be
amended or modified in any manner except by an
instrument in writing signed by both parties.
36. Governmental Approvals/Landlord:
The parties acknowledge and agree that this Lease is
contingent upon Landlord obtaining from the City of Farmington Hills: (i)
rezoning of a portion of the Building Complex; and (ii) site plan approval
for the development of the Building and related improvements from the City of
Farmington Hills on or before September 30, 1998. In the event Landlord is
unable to obtain such rezoning and/or site plan approval before the aforesaid
date, Landlord shall have the right to terminate this Lease by notifying
Tenant in writing of such election. In the event of any such election by
Landlord, this Lease shall cease and terminate and the parties shall
thereafter have no further right or responsibility hereunder.
37. Governmental Approvals/Tenant:
The parties acknowledge and agree that this Lease is
contingent upon Tenant obtaining all federal and state approvals for the
relocation of its headquarters to the Building on or before the sixtieth
(60th) day after the date of execution hereof. In the event Tenant is unable
to obtain such approvals before the aforesaid date, Tenant shall have the
right to terminate this Lease by notifying Landlord in writing of such
election. In the event of any such election by Tenant, this Lease shall cease
and terminate and the parties shall thereafter have no further right or
responsibility hereunder.
38. Landlord's Warranty:
Landlord warrants to Tenant that the Building Complex
and all equipment utilized in its operation, including, but not limited to,
heating, ventilation and air conditioning systems, elevators, security
systems, alarms, electrical, lighting sprinkler and fire safety equipment,
plumbing and metering systems, as well as all systems used by the management
company with respect to the accounting for rent and operating expenses, and
all associated and related hardware, software, and firmware, (including any
substitutions, modifications and replacements therefor) ("Listed Items")
installed in or on the Building Complex or used by Landlord, its agents and
employees in the operation of the Building Complex, shall be able to
accurately process date related data (including, but not limited to,
calculating, comparing, and sequencing) from, into, and between the year 1999
and the year 2000, including leap year calculations, when used in accordance
with the documentation provided by the manufacturer thereof and when used in
combination with other Listed Items shall properly exchange date related data
with it.
If the operation of the Building Complex requires that
the Listed Items must perform as a system in accordance with the foregoing
warranty, then that warranty shall apply to those Listed Items as a system.
The duration of this warranty and the remedies available to the Tenant for
breach of this warranty shall be for the term of this Lease and any
extensions, including substitutions and replacements therefor.
Prior to the Commencement Date of this Lease, Landlord
shall or cause a vendor to perform a demonstration test in the presence of
Tenant and, if requested,
Tenant: ______
27
federal or state financial institution personnel ("Regulator") to confirm
that each Listed Item complies with this clause. If the Item does not comply,
it will not be accepted. If the Tenant or Regulator decides it is not
practicable for Landlord to perform the demonstration test, Landlord will
instead, within five (5) business days of delivery, provide a certificate to
the Tenant stating that the purchased Items comply with this clause. If the
certificate is not received, acceptance of the Items will be revoked. If
non-compliance with the clause is discovered at any time after acceptance but
before February 1, 2001, the remedies available to the Tenant under this
warranty shall include repair, replacement or reimbursement for reprocurement
of an acceptable replacement Item including the full costs of the Item
itself, and all costs associated with such repair, replacement or
reprocurement shall be borne by the Landlord and shall not be deemed an
Operating Expense which is subject to reimbursement by the Tenant. Nothing in
this warranty shall be construed to limit any rights or remedies the Tenant
may otherwise have under this Lease with respect to defects other than Year
2000 performance.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
the day and year first above written.
In the Presence of: RONTAL INVESTMENT COMPANY,
a Michigan co-partnership
/s/ Xxxxxx Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------ ----------------------
___________________ Its: Partner
LANDLORD
MICHIGAN HERITAGE BANCORP,
a Michigan corporation
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------ -----------------------
___________________ Its: President
-------------------
Tenant: ______
28
EXHIBIT "B"
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF LEASE, DATED AUGUST 31 , 1998, BY AND BETWEEN
RONTAL INVESTMENT COMPANY, A MICHIGAN CO-PARTNERSHIP, AS LANDLORD, AND
MICHIGAN HERITAGE BANCORP, A MICHIGAN CORPORATION, AS TENANT. TENANT AGREES
TO ITSELF, ITS EMPLOYEES AND AGENTS TO COMPLY FULLY WITH THE FOLLOWING RULES
AND REGULATIONS AND WITH SUCH REASONABLE MODIFICATIONS THEREOF AND ADDITIONS
THERETO AS LANDLORD MAY MAKE FOR THE BUILDING:
-----------------------------------------------------------------------------
1. No sign, picture, lettering, notice or advertisement of any
kind shall be painted or displayed on or from the windows, doors, roof, or
outside walls of the Building. All of Tenant's interior signs, sign painting
or lettering shall be done in a manner approved by Landlord, and the cost
thereof shall be paid by Tenant. In the event of the violation of the
foregoing by Tenant, Landlord may remove same without any liability and may
charge the expense incurred for such removal to Tenant.
2. Tenant shall not use the name of the Building for any purpose
other than that of the business address of Tenant. Tenant agrees that
Landlord may assign a name to the Building and/or change the name of the
Building at Landlord's option.
3. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors, or halls shall not be obstructed or
encumbered by any tenant or used for any purpose other than ingress and
egress to and from the Leased Premises.
4. No curtains, blinds, shades, screens, awnings, or other
projections shall be attached to or hung in, or used in connection with, any
window or door of the Leased Premises or outside wall of the Building without
the prior written consent of the Landlord, nor shall Tenant place objects
against glass partitions, doors or windows which would be unsightly from the
Building's corridors, or from the exterior of the Building.
5. Any carpeting cemented down shall be installed with a
releasable adhesive.
6. No animals or pets or bicycles or other vehicles shall be
brought or permitted to be in the Building or the Leased Premises.
7. The water and wash closets and other plumbing fixtures shall
not be used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, rags, or other substances shall be thrown therein.
All damage resulting from any misuse of the fixtures shall be borne by the
Tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same. Tenant shall not waste electricity, water or air
conditioning, and shall cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air conditioning. Tenant
shall not adjust any controls other than room thermostats installed for
Tenant's use. Tenant shall not tie, wedge or otherwise fasten open any water
faucet or outlet. Tenant shall keep all corridor doors closed.
8. No tenant shall xxxx, paint, drill into, or in any way deface
any part of the Building not within the Premises.
9. Tenant shall not cause or permit unusual or objectionable odor
to be produced upon or permeate from the Premises, including duplicating or
printing equipment emitting noxious fumes. Tenant shall not allow any cooking
on the Leased Premises, except for microwave ovens in the employee areas.
Tenant shall not disturb any occupants of this or neighboring buildings or
premises by the use of any musical instruments, loudspeakers, or by any
unseemingly or disturbing noise.
10. No tenant shall throw anything out of the door, windows, or
down any
EXHIBIT "B" Page 1 of 3
passageways or elevator shafts.
11. Vending machines will not be permitted to be installed except
for exclusive use of employees by anyone but the Landlord.
12. Canvassing, soliciting, and peddling in the Building is
prohibited and each tenant shall cooperate to prevent the same.
13. No additional locks or bolts of any kind shall be placed upon
any of the doors and windows by any tenant, nor shall any change be made in
existing locks or the mechanism thereof, except with respect to interior
areas of the Premises necessary for Tenant's security. Each tenant must, upon
the termination of his tenancy, return to the Landlord all keys of stores,
offices, and toilet rooms, either furnished to or otherwise procured by
Tenant and in the event of the loss of any keys, so furnished, such tenant
shall pay to the Landlord the cost thereof.
14. Tenant assumes full responsibility for protecting the Leased
Premises from theft, robbery and pilferage. Except during Tenant's normal
business hours, Tenant shall keep all doors to the Leased Premises locked and
other means of entry of the Leased Premises closed and secured.
15. Tenant is not permitted to use any part of the Building or the
common areas for any manufacturing, storage, or sale of merchandise, or
property of any kind; or for lodging or sleeping, or for any immoral or
illegal purpose. Tenant shall not install or operate any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary use
of the Leased Premises for general office purposes.
16. All loading, unloading, receiving or delivery of goods,
supplies or disposal of garbage or refuse shall be made only through
entryways provided for such purposes by Landlord.
17. All safes, freight, furniture, or other bulky matter of any
description shall be carried in or out of the Leased Premises only at such
times and in such manner as shall be prescribed in writing by Landlord, and
Landlord shall in all cases have the right to specify the proper position of
any such safe, furniture, or other bulky article, which shall only be used by
Tenant in a manner which will not interfere with or cause damage to the
Leased Premises or the Building in which they are located, or to the other
tenants or occupants of the Building. Tenant shall be responsible for any
damage to the Building or the property of its tenants or others and injuries
sustained by any person whomsoever resulting from the use or moving of such
articles in or out of the Leased Premises, and shall make all repairs and
improvements required by Landlord or governmental authorities in connection
with the use or moving of such articles.
18. Tenant shall not bring in or allow to be kept upon the Leased
Premises any inflammable, combustible or explosive fluid, chemical or
substance or any article deemed extra hazardous on account of fire or other
dangerous properties.
19. Tenant shall not employ any person to perform any cleaning,
repairing, janitorial, decorating, painting, or other services or work in or
about the Leased Premises, except with the approval of Landlord.
20. Tenant shall not overload any floor and shall not install any
heavy objects, safes, business machines, files or other equipment without
having received Landlord's prior written consent as to size, maximum weight,
routing and location thereof. Tenant shall have the right to install
fireproof cabinets and a proof machine within the Premises. Safes, furniture,
equipment, machines and other large or bulky articles shall be brought
through the Building and in and out of the Leased Premises at such times and
in such manner as the Landlord shall direct (including the designation of
elevator) and at Tenant's sole risk and responsibility. Prior to Tenant's
removal of any such articles from the Leased Premises, Tenant shall obtain
written authorization therefor at the Office of the Building and shall
present such writing to a designated employee of Landlord.
21. Landlord shall not be responsible for any lost or stolen
property, equipment, money or jewelry from the Leased Premises or the public
area of the Building regardless of whether such loss occurs when the Leased
Premises are locked or not.
EXHIBIT "B" Page 2 of 3
22. The Landlord reserves the right to exclude from the Building
between the hours of 6:00 o'clock p.m. and 8:00 o'clock a.m. and at all hours
on Sundays and legal holidays all persons who do not present a pass to the
Building signed by the Landlord. The Landlord will furnish passes to persons
for whom any tenant requests same in writing. Each tenant shall be
responsible for all persons for whom he requests such pass and shall be
liable to the Landlord for all acts of such persons.
23. The work of the janitor or cleaning personnel shall not be
hindered by Tenant after 5:30 o'clock p.m., and the windows may be cleaned at
any time. Tenant shall provide adequate waste and rubbish receptacles to
prevent unreasonable hardship to Landlord in discharging its obligation
regarding cleaning services.
24. Tenant will refer to the Building Manager all contractors and
installation technicians rendering any service for Tenant for supervision and
approval before performance of any contractual services. Tenant will not
permit any mechanic's liens to be placed against the Leased Premises.
25. Landlord shall have the right to prohibit any advertising by
any tenant which, in Landlord's opinion, tends to impair the reputation of
the Building or its desirability for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
26. Tenant may request heating and/or air conditioning for
non-business hours by submitting a written request therefor to the Building
Manager's Office no later than 2:00 o'clock p.m. the preceding workday
(Monday through Friday). The request must clearly state the start and stop of
the non-business hour service. Each Tenant representative designated in the
Lease will submit to the Building Manager a list of personnel who are
authorized to make such requests.
Charges, to be determined when the Building is in operation,
will be fair and reasonable and reflect the additional operating costs
involved and the necessity of having maintenance personnel on duty for a full
shift, regardless of the actual time the equipment is in use. If two or more
tenants originate similar requests, charges shall be prorated by hours of
operation.
27. Tenants may park only in strict compliance with all signs
posted and regulations issued by Landlord, within spaces designated for
parking, and not in such a manner as to block other parking spaces, drives,
loading areas or fire lanes. All tenants hereby authorize Landlord to remove
from the parking lot any improperly parked vehicle, at the Tenant's sole risk
and expense. Tenants understand that they are fully responsible for assuring
that their employees, agents, licensees and visitors comply with these
parking rules, will reimburse Landlord for all costs and expenses incurred in
enforcing the rules and will indemnify and hold harmless Landlord from any
liability to such employees and other third parties for measures taken by
Landlord to enforce the rules. To facilitate security arrangements and
parking controls, a list of the names of each tenant's employees working in
the Building and of their vehicle license numbers will be furnished to
Landlord upon request.
28. Wherever the word "Tenant" occurs, it is understood and agreed
that it shall mean Tenant's associates, agents, clerks, servants and
visitors. Wherever the word "Landlord" occurs, it is understood and agreed
that it shall mean Landlord's assigns, agents, clerks, servants and visitors.
EXHIBIT "B" Page 1 of 3
