Exhibit 10.3
[LOGO OF DOMINO'S PIZZA APPEARS HERE]
LEASE AGREEMENT
BETWEEN
DOMINO'S FARMS OFFICE PARK LIMITED PARTNERSHIP
AND
DOMINO'S PIZZA, INC.
TABLE OF CONTENTS
Standard Lease Summary
1. Definitions/Lease
2. Amenities and Common Area
3. The Term
4. The Base Rent
5. Late Charges and Interest
6. Taxes and Assessments
7. Utilities and Utility Expenses
8. Insurance
9. Payment for Services Rendered by Landlord
10. Use of Premises
11. Damage
12. Maintenance and Repairs
13. Leasehold Improvements
14. Alterations
15. Liens
16. Eminent Domain
17. Assignment or Subletting
18. Inspection and Alteration of Public Portions
19. Fixtures and Equipment
20. Notices or Demands
21. Breach; Insolvency; Re-Entry
22. Surrender of Premises on Termination
23. Performance by Landlord of the Covenants of Tenant
24. Subordination; Estoppel Certificates
25. Substitute Space
26. Quiet Enjoyment
27. Holding Over
28. Remedies Not Exclusive; Waiver
29. Waiver of Claims
30. Indemnification
31. Assignment by Landlord
32. Security Deposit
33. Hazardous Materials
34. Movement of Tenant's Property
35. Non-Terminability Compliance With Laws, Costs, Severability
36. Entire Agreement; Merger Agreement
37. Recording
38. General
Rider A Office Location
Rider B Rules and Regulations
Rider C Additional Provisions
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STANDARD LEASE SUMMARY
THIS LEASE is made as of this 21 day of December, 1998, between the following
parties:
LANDLORD: TENANT:
Domino's Farms Office Park Limited Partnership Domino's Pizza, Inc.
24 Xxxxx Xxxxx Xxxxxx Drive 30 Xxxxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000 X.X. Xxx 000
Xxx Xxxxx, Xxxxxxxx 00000-0000
The following is intended to summarize certain basic terms of this Lease, and is
not intended to be exhaustive. In the event anything set forth in this Lease
Summary ("Lease Summary ") conflicts with the other specific provisions of this
Lease contained in the Standard Lease Terms, the latter shall be deemed to
control.
A. BUILDING:
The office building commonly known as Domino's Farms Prairie House located at 30
Xxxxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000.
B. PREMISES:
Office Space, Lab Space
and Conference Center
Square Footage: Approximately 162,000 rentable square feet
based upon 140,875 usable square feet, plus
a 15% common area factor.
Commissary Square Footage: Approximately 23,450 rentable square feet
based upon 20,371 usable square feet, plus a
15% common area factor.
Storage Space Square Footage: 19,994 usable square feet.
Location: All of the green highlighted space as shown
in that certain "Domino's Farms Tenant
Directory" dated October 27, 1998 attached
hereto as Rider A.
C. TERM:
Commencement Date: The Closing Date (as defined in that certain
Agreement and Plan of Merger dated September
25, 1998 among TM Merger Corporation, TISM,
Inc. and Xxxxxx X. Xxxxxxxx ("Merger
Agreement").
Expiration Date: Five (5) years from and after
Commencement Date .
Option to Renew: See Rider C.
D. RENT:
Year Base Annual
Rental
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Year 1 $4,078,500
Year 2 $4,185,825
Year 3 $4,296,012
Year 4 $4,410,492
Year 5 $4,527,834
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E. PERMITTED USES: Office, together with uses ancillary and
accessory thereto
F. SECURITY DEPOSIT: None
G. LANDLORD'S AGENT: Domino's Farms Corporation
H. MAILING ADDRESS: 24 Xxxxx Xxxxx Xxxxxx Xxxxx
X.X. Xxx 000
Xxx Xxxxx, Xxxxxxxx 00000-0000
RIDERS ATTACHED:
Rider A Office Location
Rider B Rules and Regulations
Rider C Additional Provisions
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STANDARD LEASE TERMS
SECTION 1
DEFINITIONS/LEASE
1.01 DEFINITIONS: In addition to words and phrases defined in these Standard
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Lease Terms, the words and phrases in the Summary of Lease Terms shall
have the meanings set forth therein.
1.02 LEASE OF PREMISES: In consideration of the rents to be paid and the
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covenants and agreements to be performed hereunder, Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord the Premises.
SECTION 2
AMENITIES AND COMMON AREA
2.01 AMENITIES: Tenant's lease of the Premises shall include the nonexclusive
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right to the use of such building amenities as are generally made
available to tenants of the Building. The use and the availability of
all such amenities shall be subject to the reasonable rules and
regulations established by Landlord or the respective proprietor or
operator of such amenities. In addition to the payment of Base Annual
Rent, Tenant shall during the initial five (5) year Term pay to
Landlord an annual amount of $175,000.00 for use of the fitness
center, which amount shall increase by three percent (3%) per annum,
and shall be payable in equal monthly installments on each Rent Day.
In addition, Tenant shall be entitled to exclusive use of the parking
spaces described in Paragraph 1 of Rider C and, otherwise, unreserved
parking spaces in the parking area provided for the Building on a
basis comparable to other tenants in the Building, together with the
nonexclusive right to use the walkways and other means of ingress and
egress over the land surrounding the Building, and all other rights of
ingress and egress provided for use in common by all owners and
tenants of the Building.
2.02 COMMON AREA: The term "Common Area" means that part of the Building
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intended by Landlord for the common use of all tenants, including, but
not limited to, lobbies, public entrances, restrooms, stairways,
elevators, corridors, parking areas and walkways. Tenant, and its
employees and licensees, shall have the nonexclusive right to use the
Common Area with other tenants and other persons permitted by Landlord
to use the same. Tenant shall not take any action which would
interfere with the rights of other persons to use the Common Area.
SECTION 3
THE TERM
3.01 TERM: The initial five (5) year Term of this Lease and the payment of rent
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hereunder, shall commence on the Commencement Date and shall end on
the Expiration Date as set forth on the Standard Lease Summary, unless
extended as hereinafter provided. The word "Term" as used herein shall
include the First Extended Term and Second Extended Term, if and when
exercised.
3.02 INTENTIONALLY OMITTED.
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SECTION 4
THE BASE RENT
4.01 BASE ANNUAL RENTAL: Tenant agrees to pay to Landlord the Base Annual Rental
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for the original Term of this Lease without right of set-off or
abatement (except as expressly permitted under this Lease).
4.02 BASE MONTHLY RENTAL: The Base Annual Rental shall be payable in equal
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monthly installments ("Base Monthly Rental"), in advance, without any
set-offs or deductions (except as expressly permitted under this
Lease), on the first day of each month (the "Rent Day") during the
Term of this Lease at the mailing address shown in Paragraph I of the
Summary, or at such other place as Landlord from time to time may
designate in writing. In the event the Commencement Date is other than
the first day of the calendar month, the rental for the first and last
partial months shall be prorated based on the actual number of days of
such months included within the Lease Term and based upon the amount
of the Base Monthly Rental.
SECTION 5
LATE CHARGES AND INTEREST
5.01 LATE CHARGES: Any rent or other sums payable by Tenant to Landlord under
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this Lease which are not paid by Tenant and received and accepted by
Landlord within seven (7) days after they are due will be subject to a
one-time late charge of five percent (5%) of the amount due. Such late
charges will be due and payable as additional rent on or before the
next Rent Day.
5.02 INTEREST: Any rent, late charges or other sums, if any, payable by Tenant
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to Landlord under this Lease not paid within thirty (30) days after
the same are due will bear interest at a per annum rate of eleven
percent (11%); provided however, if such rate exceeds the maximum rate
of interest permitted by law under such circumstances, then such rate
shall be reduced to the maximum permissible rate. Such interest will
be due and payable as additional rent on or before the next Rent Day,
and will accrue from the date that such rent, late charges or other
sums are first payable under the provisions of this Lease until
actually paid by Tenant.
5.03 DEFAULT: Any default in the payment of rent, late charges or other sums
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will not be considered cured unless and until the late charges and
interest due hereunder are paid by Tenant to Landlord. If Tenant
defaults in paying such late charges and/or interest, Landlord will
have the same remedies as on default in the payment of rent. The
obligation hereunder to pay late charges and interest exists in
addition to, and not in the place of, the other default provisions of
this Lease.
SECTION 6
TAXES AND ASSESSMENTS
6.01 PERSONAL PROPERTY TAXES: Tenant shall be responsible for and pay all
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personal property taxes assessed against Tenant's fixtures, equipment
and other property of Tenant located on the Premises to the extent
such taxes are payable during, and allocable to, the Term.
SECTION 7
UTILITIES AND UTILITY EXPENSES
7.01 TELECOMMUNICATIONS: Tenant shall arrange and pay for its own telephone or
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other telecommunications services, subject to Landlord's prior written
approval of the means of installation of such service(s).
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7.02 UTILITIES TO BE FURNISHED: Landlord shall furnish the following utilities
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("Utilities"):
A. Electricity for usual office requirements;
B. Air conditioning and heat during the appropriate season, as provided
in the Rules and Regulations attached as Rider B; and
C. Hot and cold water for lavatory purposes.
7.07 INTERRUPTION OF UTILITIES: Interruption or curtailment of any Utility for
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any reason or interruption or curtailment of any service maintained in
the Building, if caused by strikes, mechanical difficulties, or any
causes or acts beyond Landlord's control, whether similar or
dissimilar to those enumerated, shall not entitle Tenant to any claim
against Landlord or to any abatement in rent, nor shall the same
constitute constructive or partial eviction, unless Landlord fails to
take such measures as may be reasonable in the circumstances to
restore the service or Utility without undue delay. If the Premises
are rendered untenantable in whole or in part for a period of over
three (3) full business days, by the making of repairs, replacements
or additions, other than those made at Tenant's request or caused by
misuse or neglect by Tenant or Tenant's agents, servants, visitors,
invitees, licensees or employees or those required by any governmental
authority due to the nature of Tenant's use of the Premises, there
shall be a proportionate abatement of rent during the period of such
untenantability.
SECTION 8
INSURANCE
8.01 LIABILITY INSURANCE: Tenant shall obtain, at its own expense, comprehensive
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general liability insurance coverage, including blanket contractual
coverage, against claims for or arising out of bodily injury, death or
property damage occurring in, on or about the Premises, which policy
or policies shall name Landlord as an additional insured. The policy
may be either a dual limit policy in the amounts of $1,000,000 per
person and $1,000,000 per occurrence for bodily injury and $1,000,000
per occurrence for property damage or a single limit policy in the
amount of $1,000,000. Landlord may require that the limits of such
insurance be increased in reasonably appropriate amounts as may be
determined by Landlord or any mortgagee of the Building; provided,
however, that the amount of coverage will not be increased more
frequently than at one (1) year intervals. Such policy shall be issued
by an insurance company acceptable to Landlord. The policy procured by
Tenant under this Subsection 8.01 must provide for at least thirty
(30) days written notice to Landlord of any cancellation. On or before
the Commencement Date, Tenant shall deliver to Landlord, at Landlord's
option, a certificate of insurance or a certified copy of the original
policy, together with receipts evidencing payment of the premiums
therefor. Tenant will deliver certificates of renewal for such
policies to Landlord at least thirty (30) days prior to the expiration
dates thereof. The insurance provided by Tenant under this Subsection
8.01 may be in the form of a blanket insurance policy covering other
properties as well as the Premises; provided, however, that Tenant
must furnish Landlord with a written statement from the insurer(s)
under such policy or policies which statement shall (i) specify the
policy limits of the policy or policies, (ii) state that the Premises
and this Lease are covered by such policy or policies and (iii) state
the amount of total insurance allocated to the Premises; provided,
further, that any such policy or policies of blanket insurance must,
as to the Premises, otherwise comply as to insurance amounts,
endorsements, notice of cancellation and coverage with the other
provisions of this Subsection 8.01.
8.02 INTENTIONALLY OMITTED.
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8.03 INTENTIONALLY OMITTED.
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SECTION 9
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PAYMENT FOR SERVICES RENDERED BY LANDLORD
9.01 PAYMENT FOR SERVICES: If Landlord at any time (i) does any work or
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performs any service in connection with the Premises, or (ii) supplies
any materials to the Premises, and the cost of such services, work or
materials is Tenant's responsibility under the provisions of this
Lease, Landlord will invoice Tenant for the reasonable cost, payable
on the next Rent Day or within ten (10) days after delivery of the
invoice, whichever is later. This Section 9.01 will apply only to any
such work, service or materials, furnished at Tenant's request,
whether furnished or caused to be furnished by Landlord, its agents,
employees or contractors. All amounts payable under this Section 9.01
will be additional rental and failure by Tenant to pay them when due
will be a default under this Lease and, in addition to any other
remedies provided in this Lease upon default, will result in the
assessment of late charges and interest under Section 5.
SECTION 10
USE OF PREMISES
10.01 PERMITTED USES: The Premises will be used and occupied by Tenant for the
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Permitted Uses and for no other purpose without prior written consent
of Landlord. Tenant agrees that it will not use or permit any person
to use the Premises or any part thereof for any use or purposes in
violation of the laws of the United States, the laws, ordinances or
other regulations of the state and municipality in which the Premises
are located, or of any other lawful authorities. During the Term,
Tenant will keep the Premises and every part thereof in a clean and
wholesome condition and will comply with all lawful health and police
regulations and with the Rules and Regulations attached as Rider B.
10.02 RULES AND REGULATIONS: The Landlord may, from time to time, establish
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reasonable rules and regulations ("Rules and Regulations") for use of
the Premises, the Building and the Common Areas by Tenant and all
other persons. Those Rules and Regulations in effect on the date of
this Lease are attached as Rider B. All such rules and regulations may
be amended or replaced, at Landlord's option, upon written notice to
Tenant (sent by mail or otherwise delivered to the Premises). All such
amendments or replacements shall be deemed to automatically amend and
replace those Rules and Regulations set forth in Rider B.
SECTION 11
DAMAGE
11.01 DAMAGE: If the Premises are damaged or destroyed in whole or in part by
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any fire or other casualty during the Term hereof, Landlord will
repair and restore the same to good tenantable condition with
reasonable dispatch, and that the rent herein provided for shall xxxxx
entirely in case the entire Premises are untenantable and prorata on
an equitable basis for the portion rendered untenantable, in case a
part only is untenantable, until the same shall be restored to a
tenantable condition. The foregoing shall be subject to all of the
following: (i) if Tenant shall fail to remove its damaged goods,
wares, equipment or property within a reasonable time, and as a result
thereof the repairing and restoration is delayed, there shall be no
abatement of rental during the period of such resulting delay; (ii)
that if Tenant shall use any part of the Building other than the
Premises for storage, during the period of repair, a reasonable charge
shall be made therefor against Tenant; (iii) that in case the Building
shall be destroyed to the extent of more than one-half (1/2) of the
value thereof, Landlord may at its option terminate this Lease
forthwith by a written notice to Tenant stating the date upon which
this Lease will terminate, but only if all leases in the Building are
similarly terminated; and (iv) that in case the Premises shall be
destroyed in whole or in part and Landlord shall fail to repair and
restore the Premises to good tenantable condition within twelve (12)
months (including force majeure) of the date of such destruction,
Tenant may at its option terminate
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this Lease forthwith by a written notice to Landlord stating the date
upon which this Lease will terminate.
SECTION 12
MAINTENANCE AND REPAIRS
12.01 MAINTENANCE AND REPAIRS: Landlord will maintain, repair and keep the roof
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and all structural, electrical, mechanical and plumbing systems of
the Building (other than such systems installed by Tenant after the
Commencement Date) and any other improvements on the land which serve
the entire Building, including the parking lot, at all times, in good
appearance and repair. Landlord will also maintain the grounds,
sidewalks, driveways and parking areas. Landlord assumes the
responsibility for the operation, security, management, maintenance
and repair of the Common Area.
12.02 COST OF REPAIRS: From and after the Commencement Date, any repairs,
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additions or alterations to the Building including any of its systems
(e.g., plumbing, electrical, mechanical) structural or non-
structural, or to the Premises, which are required by any law,
statute, ordinance, rule, regulation or governmental authority or
insurance carrier, including, without limitation, OSHA, arising out
of Tenant's use or occupancy of the Premises during the Term, will be
made by Landlord at Tenant's expense including, without limitation,
those which require the making of any structural, unforeseen or
extraordinary changes. The foregoing shall not apply to any such
repairs, additions or alterations that are required because of use of
the Building generally as an office building, it being understood and
agreed that such repair, addition and alteration obligations shall be
the obligations of Landlord. Tenant agrees to pay the total costs
incurred by Landlord for repairs made under this Subsection 12.02
within thirty (30) days after the delivery of an invoice for same.
All amounts payable under this Section 12.02 will be additional
rental and failure by Tenant to pay them when due will be a default
under this Lease and, in addition to any other remedies provided in
this Lease upon default, will result in the assessment of late
charges and interest as set forth in Section 5.
12.03 MAINTENANCE: Tenant agrees at its own expense to maintain the Premises
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and all improvements thereto, including any improvements made by
Tenant, at all times in good appearance and repair, reasonable and
normal wear and tear, fire and damage caused by the elements, and
repairs caused by Landlord's failure to make repairs required under
Section 12.01 excepted.
12.04 JANITORIAL SERVICES: Landlord will provide janitorial services to the
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Premises.
SECTION 13
LEASEHOLD IMPROVEMENTS
13.01 PLANS/ALLOWANCE: Landlord and Tenant agree that the Premises may be
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improved ("Leasehold Improvements") in accordance with certain plans
and specifications to be prepared by Tenant or Tenant's agents, which
plans and specifications shall be subject to Landlord's approval in
the same manner as provided in Section 14.01.
13.02 INTENTIONALLY OMITTED.
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SECTION 14
ALTERATIONS
14.01 ALTERATIONS: Landlord must review plans for and approve any structural
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alterations, additions, or improvements, exterior or interior, to the
Premises including alterations made at the request of Tenant.
Landlord's consent for any interior improvements will not be
unreasonably
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withheld; provided that Landlord's consent to exterior improvements
may be withheld in Landlord's sole and absolute discretion. Any
modification of the Premises other than as specifically set forth in
the Work Agreement as Landlord's expense will be at the expense of
Tenant. All work will be done in accordance with standards and
specifications provided by Landlord to Tenant.
14.02 RESTORATION OF PREMISES: All alterations, additions and improvements made
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by either of the parties hereto on the Premises will be the property
of Landlord and will remain on and be surrendered with the Premises
at the termination of this Lease provided, however, that Tenant shall
remove, at Landlord's option, all alterations, additions or
improvements to the Premises (other than normal office tenant
improvements) made for Tenant during the Term, including without
limitation, specialty fixtures, if any, and Tenant shall repair all
damage caused by such removal and restore the Premises to a condition
which is consistent with the condition of the remainder of the
Premises at such time.
SECTION 15
LIENS
15.01 LIENS: Tenant will keep the Building, Premises and surrounding land free
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of liens of any sort attributable to the acts of Tenant during the
Term and will hold Landlord harmless from any liens which may be
placed on the Building during the Term, Premises or surrounding land
except those attributable to the acts of Landlord or other tenants;
provided, however, that nothing herein shall prohibit Tenant from
providing Landlord with a bond acceptable to Landlord while Tenant is
contesting any claim giving rise to a lien.
SECTION 16
EMINENT DOMAIN
16.01 EMINENT DOMAIN: If the Premises are taken by any public authority under
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power of eminent domain, or by private sale in lieu of eminent
domain, this Lease will terminate as of the date of such taking or
sale, and Tenant may receive a prorata refund of any rents, deposits
or other sums paid in advance. Landlord reserves the right, however,
to elect to demolish, rebuild or reconstruct the Building if the
portion of the Premises or Building so taken reduces the value of the
Building by more than one-half, and if Landlord so elects, whether or
not the Premises are involved in the taking, this Lease may be
terminated by Landlord on written notice to Tenant (but only if all
leases in the Building are similarly terminated) and the rent will be
adjusted to the date Tenant's possession of the Premises is
terminated. Tenant may terminate this Lease if as a result of a
taking the square footage of the office space in the Premises is
reduced by more than twenty percent (20%).
16.02 CONDEMNATION AWARD: The whole of any award or compensation for any
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portion of the Premises taken, condemned or conveyed in lieu of
taking or condemnation shall be solely the property of and payable to
Landlord. Nothing herein contained shall be deemed to preclude Tenant
from seeking at its own cost and expense, an award from the
condemning authority for loss of its business, the value of any trade
fixtures or other personal property of Tenant in the Premises or
moving expenses, provided that the award for such claim or claims
shall not be in diminution of the award made to Landlord.
SECTION 17
ASSIGNMENT OR SUBLETTING
17.01 ASSIGNMENT OR SUBLETTING: Tenant agrees not to assign or in any manner
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transfer this Lease or any interest in this Lease without the
previous written consent of Landlord, which consent shall
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not be unreasonably withheld, and not to sublet the Premises or any
part of the Premises or allow anyone to use or to come in, with,
through or under it without like consent, which consent shall not be
unreasonably withheld. Upon any attempted unconsented assignment or
sublease for which consent is required hereunder, Landlord shall have
the right to terminate this Lease. One such consent will not be
deemed a consent to any subsequent assignment, subletting, occupation
or use by any other person. Any sublease of the Premises executed by
Tenant and a third party must terminate when the Term of this Lease
expires. The acceptance of rent from an assignee, subtenant or
occupant will not constitute a release of Tenant from the further
performance of the obligations of Tenant contained in this Lease. In
the event of any such assignment or sublease of all or any portion of
the Premises where the rental or other consideration reserved in the
sublease or by the assignment exceeds the rental or prorata portion
of the rental, as the case may be, for such space reserved in this
Lease, Tenant agrees to pay Landlord monthly, as additional rental,
on the Rent Day, fifty percent (50%) the excess (after netting out
Tenant's reasonable expenses for tenant improvements, brokerage fees,
attorneys' fees and other reasonable out of pocket expenses incurred
in connection with such assignment or sublease) of the rental or
other consideration reserved in the sublease or assignment that is
from time to time received by Tenant over the rental reserved in this
Lease applicable to the subleased/assigned space. Nothwithstanding
the foregoing, Tenant shall not be required to obtain Landlord's
consent in the event of an an assignment of this Lease or subletting
of all or any portion of the Premises to (i) an entity into which
Tenant is merged or consolidated or to which all or substantially all
of Tenant's assets are sold or transferred, or (ii) an entity which
controls, is controlled by, or is under common control with, Tenant.
SECTION 18
INSPECTION AND ALTERATION OF PUBLIC PORTIONS
18.01 INSPECTION: Tenant agrees to permit Landlord and the authorized
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representatives of Landlord to enter the Premises at all times for
the purpose of inspecting the same.
18.02 RIGHT TO ENTER AND ALTER PREMISES: Upon notice from Landlord, Tenant
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shall permit Landlord to erect, use and maintain pipes and conduits
in and through the Premises. Landlord or its agents or designees
shall have the right to enter the Premises, for the purpose of making
such repairs or alterations as Landlord shall be required or shall
have the right to make by the provisions of this Lease and, subject
to the foregoing, shall also have the right to enter the Premises for
the purpose of exhibiting them to prospective purchasers of the
Building or to prospective mortgagees or to prospective assignees of
any such mortgagees, provided Landlord shall give reasonable notice
(except in case of emergency) to minimize any inconvenience or
disruption to Tenant. Landlord shall be allowed to take all material
into and upon the Premises that may be required for the repairs or
alterations above mentioned without the same constituting an eviction
of Tenant in whole or in part, and the rent reserved shall in no wise
xxxxx, except as otherwise provided in this Lease, while said repairs
or alterations are being made. Landlord shall at all times have and
retain a key with which to unlock all of the doors in, on or about
the Premises (excluding Tenant's vaults, safes and similar areas
designated in writing by Tenant in advance ); and Landlord shall have
the right to use any and all means which Landlord may deem proper to
open said doors in an emergency in order to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord by any
of said means, or otherwise, shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into or a
detainer of the Premises or an eviction, actual or constructive, of
Tenant from the Premises, or any portion thereof.
18.03 RIGHT TO SHOW PREMISES: During the twelve (12) months prior to the
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expiration of the Term of this Lease, Landlord may exhibit the
Premises to prospective tenants during normal business hours.
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18.04 RIGHT TO ALTER PUBLIC PORTIONS OF BUILDING: Landlord shall have the right
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at any time without thereby creating an actual or constructive
eviction or incurring any liability to Tenant therefore, to change
the arrangement or location of entrances, passageways, doors, and
doorways, corridors, stairs, toilets and other like public service
portions of the Building. Tenant shall at all times be provided with
an entrance to the Premises.
18.05 PRIOR NOTICE: In exercising any of Landlord's rights described in
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Sections 18.01, 18.02, 18.03 and 18.04 above, Landlord shall give
reasonable prior notice (except in case of emergency) to Tenant and
shall use reasonable efforts to minimize any inconvenience or
disruption to Tenant.
18.06 NAME OF BUILDING: Subject to Tenant's prior written consent, which shall
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not be unreasonably withheld, Landlord shall have the right at any
time to name the Building for any person(s), tenant(s) or entity(s)
and to change any and all such names at any time thereafter.
SECTION 19
FIXTURES AND EQUIPMENT
19.01 LANDLORD'S PROPERTY: All fixtures and equipment paid for by Landlord and
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all improvements, fixtures and equipment which may be paid for and
placed on the Premises by Tenant from time to time but which are so
incorporated and affixed to the Premises that their removal would
involve damage or structural change to the Premises, will be and
remain the property of Landlord; provided, however, that any
specialty fixtures may be removed by Tenant provided that Tenant
shall repair all damage caused by such removal and restore the
Premises to a condition which is consistent with the condition of the
remainder of the Premises at such time.
19.02 TENANT'S PROPERTY: All improvements, furnishings, equipment and fixtures
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other than those specified in Subsection 19.01, which are paid for
and placed on the Premises by Tenant from time to time will remain
the property of Tenant and be removed by Tenant at the expiration of
the Lease.
SECTION 20
NOTICES OR DEMANDS
20.01 NOTICES OR DEMANDS: All bills, notices, statements, communications or
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demands (collectively, "notices or demands") upon Landlord or Tenant
desired or required to be given under any of the provisions hereof
must be in writing. Any such notices or demands from Landlord to
Tenant will be deemed to have been duly and sufficiently given if a
copy thereof has been if sent by reputable overnight courier in an
envelope, or mailed by United States mail in an envelope properly
stamped, and addressed to Tenant at the address of the Premises or at
such other address as Tenant may have last furnished in writing to
Landlord for such purpose. Any such notices or demands from Tenant to
Landlord will be deemed to have been duly and sufficiently given if
sent by reputable overnight courier in an envelope, or mailed by
United States mail in an envelope properly stamped, and addressed to
Landlord at the address set forth in the Lease Summary or such other
address as the Landlord may designate in writing from time to time.
The effective date of such notice or demand will be deemed to be the
time when delivered to such reputable courier or mailed as herein
provided, except that when any time period is specified under this
Lease to commence from notice, such time period shall be deemed to
commence when such notice was delivered or when delivery was first
attempted.
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SECTION 21
BREACH; INSOLVENCY; RE-ENTRY
21.01 DEFAULT: If any rental payable by Tenant to Landlord remains unpaid for
--------
more than seven (7) days after written notice to Tenant of
nonpayment, or if Tenant violates or defaults in the performance of
any of its obligations in this Lease and the violation or default
continues for a period of thirty (30) days after written notice
(provided that Tenant shall be given such additional period of time
as is necessary to cure such default if such default is not
reasonably susceptible to being cured within such thirty (30) day
period, provided that Tenant diligently commences such cure and
diligently continues to pursue the curing of such default), then
Landlord may (but will not be required to) declare this Lease
forfeited and the Term ended, or re-enter the Premises, or may
exercise all other remedies available under Michigan law. Landlord
will not be liable for damages to person or property by reason of any
legitimate re-entry or forfeiture. Tenant, by the execution of this
Lease, waives notice of re-entry by Landlord. In the event of re-
entry by Landlord without declaration of forfeiture, the liability of
Tenant for the rent provided herein will not be relinquished or
extinguished for the balance of the Term, and any rentals prepaid may
be retained by Landlord and applied against the costs of re-entry, or
the costs of enforcement of this Lease, including the cost of any
proceeding under the Federal Bankruptcy Code.
21.02 BANKRUPTCY: If Tenant is adjudged bankrupt or insolvent, files or
-----------
consents to the filing of a petition in bankruptcy under Federal or
State law, applies for or consents to the appointment of a receiver
for all or substantially all of its assets, or makes a general
assignment for the benefit of its creditors, then Tenant shall be in
default under this Lease and, to the extent from time to time
permitted by applicable law, including but not limited to the Federal
Bankruptcy Code, Landlord shall be entitled to exercise all remedies
set forth in Section 21.01. In a reorganization under Chapter 11 of
the Federal Bankruptcy Code, the debtor or trustee must assume this
Lease or assign it within sixty (60) days from the filing of the
proceeding, or he shall be deemed to have rejected and terminated
this Lease. Tenant acknowledges that its selection to be the tenant
hereunder was premised in material part on Landlord's determination
of Tenant's creditworthiness and the character of its occupancy and
use of the Premises would be compatible with the nature of the
Premises and other adjacent properties and tenants of Landlord.
Therefore, if Tenant, as debtor, or its trustee elects to assume this
Lease, in addition to complying with all other requirements for
assumption under the Federal Bankruptcy Code, then Tenant, as debtor,
or its trustee or assignee, as the case may be, must also provide the
adequate assurance of future performance, including but not limited
to a deposit, the amount of which shall be reasonably determined
based on the duration of time remaining in the Term, the physical
condition of the Premises at the time the proceeding was filed, and
such damages as may be reasonably anticipated after reinstatement of
the Lease.
21.03 RE-LEASING OF PREMISES: In the event of declaration of forfeiture at or
-----------------------
after the time of re-entry, Landlord may re-lease the Premises or any
portion(s) of the Premises for a term or terms and at a rent which
may be less than or exceed the balance of the term of and the rent
reserved under this Lease. In such event Tenant will pay Landlord as
liquidated damages for Tenant's default any deficiency between the
total rent reserved and the net amount, if any, of the rents
collected on account of the lease or leases of the Premises which
otherwise would have constituted the balance of the term of this
Lease. In computing such liquidated damages, there will be added to
the deficiency reasonable expenses which Landlord may incur in
connection with re-leasing, such as legal expenses, attorneys' fees,
brokerage fees and expenses, advertising and for keeping the Premises
in good order or for preparing the Premises for re-leasing. Any such
liquidated damages will be paid in monthly installments by Tenant on
the Rent Day and any such suit brought to collect the deficiency for
any month will not prejudice Landlord's right to collect the
deficiency for any subsequent month by a similar proceeding. In lieu
of the foregoing computation of liquidated damages, Landlord may
elect, at its sole option, to receive liquidated damages in one
payment equal to any deficiency between the total rent reserved
hereunder and the fair and reasonable rental of the
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Premises, both discounted at five percent (5%) per annum to present
value at the time of declaration of forfeiture.
21.04 FAILURE TO RE-LEASE PREMISES: Whether or not forfeiture has been
-----------------------------
declared, Landlord will attempt to re-lease the Premises, however,
Landlord will not be responsible in any way for failure to re-lease
the Premises, or in the event that the Premises are re-leased, for
failure to collect the rent under such re-leasing. The failure of
Landlord to re-lease all or any part of the Premises will not release
or affect Tenant's liability for rent or damages.
SECTION 22
SURRENDER OF PREMISES ON TERMINATION
22.01 CONDITION OF PREMISES UPON TERMINATION: At the expiration (or earlier
---------------------------------------
termination) of the Term, Tenant will surrender the Premises broom
clean and in as good condition and repair as they were at the
Commencement Date, reasonable and normal wear and tear, fire and
damage by the elements, and repairs caused by Landlord's failure to
make repairs required under Section 12.01 excepted, and promptly upon
surrender will deliver all keys and building security cards for the
Premises to Landlord at the place then fixed for payment of rent. All
reasonable costs and expenses incurred by Landlord in connection with
repairing or restoring the Premises to the condition called for
herein, together with the costs, if any, of removing from the
Premises any property of Tenant left therein, together with
liquidated damages in an amount equal to the amount of minimum net
rental plus all other charges which would have been payable by Tenant
under this Lease if the term of this Lease had been extended for the
period of time reasonably required for Landlord to repair or restore
the Premises to the condition called for herein, shall be invoiced to
Tenant and shall be payable as additional rental within ten (10) days
of the date of such invoice.
22.02 STORAGE OF TENANT'S PROPERTY: If Tenant fails to remove all its property
-----------------------------
(or property of others in its possession) from the Premises on
termination of this Lease (for any cause), Landlord at its option may
remove the property in any manner that it chooses and may store the
property without liability to Tenant for loss, whether based on
contract, tort or otherwise. Tenant agrees to pay Landlord on demand
any and all expenses incurred in such removal, including court costs,
attorneys' fees and storage charges on the property for any length of
time it is in Landlord's possession. Tenant will indemnify and hold
Landlord harmless from any claim by third parties with respect to
property owned or claimed by them, left in the Premises by Tenant,
and removed by Landlord pursuant to this paragraph. Under no
circumstances will Landlord be obligated to retain any property left
in the Premises or in Landlord's possession longer than two (2)
months after termination of this Lease (for any cause) and Landlord
may after two (2) months dispose of the property in any manner it
deems appropriate, including public or private sale or by
destruction, discard or abandonment and the proceeds of any such sale
will be applied against any sums due Landlord under this Lease.
SECTION 23
PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT
23.01 TENANT'S FAILURE TO PERFORM: If during the Term Tenant fails to pay any
----------------------------
sum of money, other than rental, required to be paid hereunder or
fails to perform any act on its part to be performed hereunder and
such failure shall continue for a period of thirty (30) days after
written notice from Landlord (or a reasonable period of less than
thirty (30) days when life, person or property is in jeopardy,
provided that in all other cases Tenant shall be given such
additional period of time beyond thirty (30) days as is necessary to
cure such default if such default is not reasonably susceptible to
being cured within such thirty (30) day period, provided that Tenant
diligently commences such cure and diligently continues to pursue the
curing of such default), Landlord may (but shall not be required to),
and without waiving or releasing Tenant from any of Tenant's
obligations, make any such payment or perform any such other act. All
-14-
sums paid by Landlord and all reasonable incidental costs, including
without limitation the cost of repair, maintenance or restoration of
the Premises if so performed by Landlord hereunder, shall be deemed
additional rental and, together with interest thereon at the rate set
forth in Section 5.02 from the date of payment by Landlord until the
date of repayment by Tenant to Landlord, shall be payable to Landlord
within fifteen (15) days after receipt of invoice by Tenant. On
default in such payment, Landlord shall have the same remedies as on
default in payment of rent. The rights and remedies granted to
Landlord under this Section 23 shall be in addition to and not in
lieu of all other remedies, if any, available to Landlord under this
Lease or otherwise, and nothing herein contained shall be construed
to limit such other remedies of Landlord with respect to any matters
covered herein.
SECTION 24
SUBORDINATION; ESTOPPEL CERTIFICATES
24.01 SUBORDINATION: Tenant agrees, that at Landlord's option, Tenant will
--------------
subordinate this Lease to any construction loans, mortgages, trust
deeds and ground or underlying leases now or hereafter affecting the
Premises and to any and all advances to be made thereunder, and to
the interest and charge thereon, and all renewals, replacements and
extensions thereon, provided the mortgagee, lessor or trustee named
in any such mortgages, trust deeds or leases delivers to Tenant a
commercially reasonable non-disturbance agreement in recordable form
pursuant to which such party shall recognize the lease of Tenant in
the event of foreclosure or other enforcement of such instruments if
Tenant is not in default. Tenant will execute promptly any instrument
or certificate that Landlord may reasonably request to effectuate
such subordination, subject to Tenant's receipt of such non-
disturbance agreement. In addition, Tenant agrees that Landlord may
from time to time subordinate any construction loans, mortgages,
trust deeds, ground leases or underlying leases now or hereafter
affecting the Premises, and any renewals, replacements and extensions
thereon, to this Lease, and Tenant will execute promptly any
instrument or certificate that Landlord may reasonably request to
confirm the superior status of this Lease with respect to such
subordination. Landlord represents and warrants that as of the date
hereof there are no construction loans, mortgages, trust deeds and
ground or underlying leases affecting the Premises for which Tenant
has not been provided a non-disturbance agreement in the form
required hereunder.
SECTION 25
INTENTIONALLY OMITTED
SECTION 26
QUIET ENJOYMENT
26.01 QUIET ENJOYMENT: Landlord agrees that at all times during the Term of
----------------
this Lease when Tenant is not in default beyond the expiration of any
applicable grace and cure period after notice, Tenant's quiet and
peaceable enjoyment of the Premises will not be disturbed or
interfered with by Landlord or any person claiming by, through, or
under Landlord.
SECTION 27
HOLDING OVER
27.01 HOLDING OVER: Upon written consent from the Landlord, if Tenant remains
-------------
in possession of the Premises after expiration of this Lease without
executing a new lease, it will be deemed to be occupying the Premises
as a tenant from month-to-month (regardless of whether rent is
reserved annually or monthly hereunder), subject to all the
provisions of this Lease to the extent that they can be applicable to
a month-to-month tenancy, except that the minimum
-15-
rental for each month (the "Monthly Holdover Rental") will be one
hundred twenty percent (120%) of the Base Monthly Rental. If without
Landlord's written consent Tenant remains in possession of the
Premises after the expiration of this Lease, (a) Tenant shall pay
Landlord the Monthly Holdover Rental for each month (or portion
thereof) during such holdover period, and (b) if such possession by
Tenant continues for more than thirty (30) days after the expiration
of this Lease, Tenant shall be liable to Landlord for and indemnify
Landlord against (i) the loss of the benefit of the bargain if any
tenant obtained by Landlord for all or any part of the Premises (a
"New Tenant") shall terminate its lease by reason of the holding over
by Tenant, and (ii) any claim for damages by any New Tenant, provided
that Landlord gives written notice to Tenant on or after the
expiration date for this Lease that Landlord intends to enforce such
indemnification if Tenant does not vacate the Premises within thirty
(30) days from the date of such notice.
SECTION 28
REMEDIES NOT EXCLUSIVE; WAIVER
28.01 REMEDIES: Each and every of the rights, remedies and benefits provided by
---------
this Lease are cumulative and are not exclusive of any other of said
rights, remedies and benefits, or of any other rights, remedies and
benefits allowed by law.
28.02 WAIVER OF COVENANT: One or more waivers of any covenant or condition by
-------------------
Landlord will not be construed as a waiver of a further or subsequent
breach of the same covenant or condition, and the consent or approval
by Landlord to or of any act by Tenant requiring Landlord's consent
or approval will not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent similar act by
Tenant.
SECTION 29
WAIVER OF CLAIMS
29.01 WAIVER OF CLAIMS: Landlord and Tenant hereby waive any and all right of
-----------------
recovery against each other for any loss or damage caused by fire or
any of the risks covered by standard fire and extended coverage,
vandalism and malicious mischief insurance policies.
SECTION 30
INDEMNIFICATION
30.01 INDEMNIFICATION: Tenant at its expense will defend, indemnify and save
----------------
Landlord and its licensees, servants, agents, employees and
contractors, harmless from any claim for personal injury or property
damage arising out of any condition of the Premises, the use or
misuse thereof by Tenant or any other person, the acts or omissions
of Tenant, its agents, employees or contractors, the failure of
Tenant to comply with any provision of this Lease, or any other event
occurring in the Premises, whatever the causes; provided, however,
that nothing herein shall be construed to require Tenant to defend,
indemnify and hold harmless Landlord or its licensees, servants,
agents, employees, and contractors against (i) Landlord's or its
licensees', servants', agents', employees' and contractors' own acts,
omissions or neglect, and (ii) any acts or omissions of Tenant prior
to, or conditions existing as of, the Commencement Date.
-16-
SECTION 31
ASSIGNMENT BY LANDLORD
31.01 ASSIGNMENT BY LANDLORD: The term "Landlord" as used in this Lease so far
-----------------------
as covenants, agreements, stipulations or obligations on the part of
the Landlord are concerned is limited to mean and include only the
owner or owners of fee title (or of a ground leasehold interest or
land contract vendee's interest) to the Premises at the time in
question, and in the event of any transfer or transfers of the title
to such fee the Landlord herein named (and in case of any subsequent
transfers or conveyances the then grantor) will automatically be
freed and relieved from and after the date of such transfer or
conveyance of all liability for the performance of any covenants or
obligations on the part of the Landlord contained in this Lease
thereafter to be performed.
31.02 LANDLORD'S DEFAULT: If Landlord fails to perform any provision of this
-------------------
Lease upon Landlord's part to be performed, and if as a consequence
of such default Tenant recovers a money judgment against Landlord,
such judgment may be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against
the right, title and interest of Landlord in the Building and out of
rents or other income from such property receivable by Landlord and
Landlord shall not be personally liable for any deficiency.
SECTION 32
SECURITY DEPOSIT
32.01 SECURITY DEPOSIT: Landlord hereby acknowledges the receipt of the
-----------------
Security Deposit, if any. If Tenant defaults in any of the provisions
of this Lease, Landlord may use, apply or retain all or any part of
the Security Deposit for the payment of rents and/or other charges
which are the obligation of Tenant under this Lease in default or for
any other sum which Landlord may expend by reasons of Tenant's
default, including any damages or deficiency in the releasing of the
Premises. If Tenant fully complies with all the provisions of this
Lease, the Security Deposit, or balance thereof, will be returned to
Tenant without interest after (i) the termination of this Lease, (ii)
the removal of Tenant, and (iii) the surrender of possession of the
Premises to Landlord. Unless Landlord is shown evidence satisfactory
to it that the right to receive the Security Deposit has been
assigned, Landlord may return the Security Deposit to the original
Tenant regardless of one or more assignments of the Lease itself.
SECTION 33
HAZARDOUS MATERIALS
33.01 NO HAZARDOUS MATERIALS: Tenant covenants that the Premises will not be
-----------------------
used by Tenant, or anyone acting by or through Tenant or any of its
agents, affiliates, subsidiaries, representatives, successors or
assigns to dispose of, refine, generate, manufacture, produce, use,
store, handle, treat, transfer, release, process or transport any
"Hazardous Materials" except in small quantities consistent with
general office use and in compliance with and in a manner that would
not reasonably be expected to lead to liability under Environmental
Laws. Hazardous Materials shall mean all substances (including,
without limitation, petroleum and any derivative thereof), wastes or
materials classified as hazardous or toxic under, or otherwise
regulated under, any applicable "Environmental Laws". "Environmental
Laws" means any statute, law, regulation or rule, in each case as in
effect on or prior to the Commencement Date, that has as its
principal purpose the protection of the environment or natural
resources.
-17-
33.02 USE OF PREMISES: Tenant shall not cause or permit the Premises to be used
----------------
to generate, manufacture, refine, transport, treat, store, use,
handle, dispose of, transfer, produce or process Hazardous Materials,
except in small quantities consistent with general office use and in
compliance with and in a manner that would not reasonably be expected
to lead to liability under Environmental Laws, nor shall Tenant cause
or permit, as a result of any intentional or unintentional act or
omission on the part of Tenant or any of its agents, affiliates,
subsidiaries, representatives, successors or assigns, a release of
Hazardous Materials onto, under or from, the Premises. Tenant agrees
to promptly deliver to the Landlord copies of all notices received by
Tenant from any federal, state or local authority regarding
environmental problems affecting the Premises. The provisions hereof
shall be in addition to any and all other obligations and liabilities
Tenant may have to the Landlord in common law and shall survive
termination of this Lease and the satisfaction of all other
obligations of Tenant hereunder.
33.03 PRESENCE OF HAZARDOUS MATERIALS/INDEMNITY: If Tenant fails to comply with
------------------------------------------
this Section 33 or if Hazardous Materials are present at, on or under
or migrate from the Premises after the Commencement Date by Tenant's
breach of Section 33.02 or by an act or omission of Tenant or any of
its agents, affiliates, subsidiaries, representatives, successors or
assigns after the Commencement Date, Tenant shall: (i) conduct and
complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions necessary to clean up and remove
such Hazardous Materials on, under, from or affecting the Premises in
accordance with all applicable Environmental Law ("Remediation
Activities"); provided that, Tenant shall (A) keep Landlord informed
of any Remediation Activities being planned or conducted and shall
provide sufficient notice of such Remediation Activities to enable
Landlord to comment thereon, (B) consider in good faith any comments
by Landlord regarding Remediation Activities and (C) secure state
approval (if and to the extent applicable state procedures provide
for such) upon completion of any Remediation Activities in a form
reasonably acceptable to Landlord; and (ii) defend, indemnify and
hold harmless Landlord, its employees, agents, officers and directors
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses of whatever kind or nature,
known or unknown, contingent or otherwise, arising out of or in any
way related to: (A) the presence, disposal, release or threatened
release of any Hazardous Materials on, over, under, from or affecting
the Premises or the soil, water, vegetation, buildings, personal
property, persons or animals thereon; (B) any personal injury
(including wrongful death) or property damage (real or personal)
arising out of or related to such Hazardous Materials; (C) any
lawsuit brought or threatened, settlement reached or government order
relating to such Hazardous Materials; or (D) any violation of laws,
orders, regulations, requirements or demands of government
authorities, or any policies or requirements of Landlord, which are
based upon or in any way related to such Hazardous Materials,
including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, court costs and litigation
expenses. In no event shall Tenant have any liability for: (i) any
act of negligence of the Landlord or its agents, affiliates,
subsidiaries, representatives, successors or assigns, (ii) conditions
not in existence on such date as Landlord, its successors or assigns,
re-takes possession of the Premises; or (iii) conditions aggravated
or worsened by Landlord, or its agents, affiliates, subsidiaries,
representatives, successors, assigns or any third party, after such
date as Landlord or its successors and assigns re-takes such
possession. Tenant shall have the right to contest in good faith the
applicability or any alleged violation of any Environmental Law. In
any event, provided enforcement is stayed, there shall be no
liability with respect to any Remediation Activities until Tenant's
rights to appeal any governmental order (state or federal) relating
to such Remediation Activities shall have been exhausted, waived, or
terminated, provided that nothing herein shall alter Tenant's
obligations pursuant to Section 15.01 with respect to liens. If
Hazardous Materials are present at, on or under or migrate from the
Premises (i) by an act or omission of Landlord, any tenant other than
Tenant or any of Landlord's agents, affiliates, subsidiaries,
representatives, successors or assigns or (ii) prior to the
Commencement Date, Landlord shall defend, indemnify and hold harmless
Tenant, its employees, agents, officers and directors from and
against any claims, demands, penalties, fines, liabilities,
settlements,
-18-
damages, costs or expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of or in any way
related to: (A) the presence, disposal, release or threatened release
of any such Hazardous Materials on, over, under, from or affecting
the Premises or the soil, water, vegetation, buildings, personal
property, persons or animals thereon; (B) any personal injury
(including wrongful death) or property damage (real or personal)
arising out of or related to such Hazardous Materials; (C) any
lawsuit brought or threatened, settlement reached or government order
relating to such Hazardous Materials; or (D) any violation of laws,
orders, regulations, requirements or demands of government
authorities which are based upon or in any way related to such
Hazardous Materials, including, without limitation, attorney's and
consultant's fees, investigation and laboratory fees, court costs and
litigation expenses; provided, however, that nothwithstanding
anything herein to the contrary, in no event shall Landlord have any
liability for: (i) any act of negligence of Tenant or its agents,
affiliates, subsidiaries, representatives, successors or assigns,
(ii) any act or omission of Tenant or its agents, affiliates,
subsidiaries, representatives, successors or assigns prior to
Commencement Date, or (iii) conditions aggravated or worsened by
Tenant, or its agents, affiliates, subsidiaries, representatives,
successors or assigns.
SECTION 34
MOVEMENT OF TENANT'S PROPERTY
34.01 MOVING TENANT'S PROPERTY: All activities of Tenant in connection with (a)
-------------------------
Tenant's move into the Premises at the commencement of this Lease,
(b) the movement of equipment, furniture or other bulky items into,
out of or within the Premises during the Term, or (c) Tenant's move
out of the Premises at any time (whether or not on the termination of
this Lease) will be subject to the following:
A. DESIGNATED ACCESS: All furniture, equipment and all other items of
------------------
personal property being moved or transferred will enter and leave the
Building solely through and by way of such area or entrance as may be
designated from time to time by Landlord for such purposes;
B. TENANT RESPONSIBLE: Tenant will be responsible for the active
-------------------
supervision (on-site) of all workmen and others performing the move,
and will indemnify and hold harmless Landlord against and from all
liability for damage to property (whether belonging to Landlord,
other tenants or any other person) and injuries to persons in
connection with the move and the actions, or failure to act, of or by
those performing the move;
C. DAMAGE: Tenant will be responsible for any damage to the Building,
-------
the Common Areas, the Premises, or the premises and property of other
tenants, caused by or incurred in connection with the move or the
activities connected therewith. Landlord will perform such
inspection(s) as Landlord in its sole discretion determines to be
appropriate, and will invoice Tenant for the costs of repair of all
such damage or the replacement, if necessary, of damaged items. All
determinations of the extent of damage and the costs of repair or
replacement will be made by Landlord in the exercise of its
reasonable discretion. The invoiced sums will constitute amounts
included within and payable under Section 9, above.
SECTION 35
NON-TERMINABILITY, COMPLIANCE WITH LAWS, COSTS, SEVERABILITY
35.01 NON-TERMINABILITY: Except as otherwise specifically provided in this
------------------
Lease, this Lease shall neither terminate nor shall Tenant have any
right to terminate this Lease or to be released, relieved or
discharged from any obligations or liabilities hereunder for any
reason whatsoever, including, without limitation:
-19-
A. DAMAGE: Any damage to, or destruction of, the Premises or any portion
-------
thereof.
B. CONDEMNATION: Any condemnation, confiscation, requisition or other
-------------
taking or sale of the possession, use, occupancy or title to the
Premises or any portion thereof.
C. OMISSION: Any action, omission or breach on the part of Landlord under
---------
this Lease or under any other agreement at the time existing between
Landlord and Tenant.
D. OTHER CLAIMS: Any claim as a result of any other business dealings of
-------------
Landlord and Tenant.
E. IMPOSSIBILITY: The impossibility or illegality of performance by
--------------
Landlord or Tenant or both.
F. FORCE MAJEURE: Force majeure.
--------------
G. GOVERNMENTAL ACTION: Any action or threatened or pending action of any
--------------------
court, administrative agency or other governmental authority.
Except as otherwise specifically provided in this Lease, Tenant shall remain
obligated under this Lease in accordance with its terms, and will not
take any action to terminate, rescind or avoid this Lease for any reason,
notwithstanding any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution or other proceeding affecting
Landlord or any assignee of Landlord or any action with respect to this
Lease which may be taken by any receiver, trustee or liquidator (or other
similar official) or by any court. All payments by Tenant hereunder shall
be final and Tenant will not seek to recover any such payment or any part
thereof for any reason. Tenant waives all rights now or hereafter
conferred by statute or otherwise to quit, terminate or surrender this
Lease, or to any abatement, suspension, deferment, diminution or
reduction of rent, additional rent or other amounts payable by Tenant
hereunder, or for damage, loss, cost or expense suffered by Tenant, on
account of any of the reasons referred to herein or otherwise.
Notwithstanding anything to the contrary contained in this Lease,
provided that Tenant is not in default under this Lease beyond the
expiration of any applicable grace and cure period after notice, in the
event the Premises are rendered substantially untenantable (other than in
the event of casualty or condemnation) through no fault of Tenant for a
period in excess of (i) thirty (30) consecutive days (or three (3) days
if the second sentence of Section 7.07 is applicable), Tenant shall be
entitled to a proportionate abatement of rent during the period of such
untenantability, and (ii) twelve (12) consecutive months, Tenant shall
have the right to terminate this Lease.
SECTION 36
ENTIRE AGREEMENT; MERGER AGREEMENT
36.01 ENTIRE AGREEMENT: MERGER AGREEMENT This Lease and the Riders attached
----------------------------------
hereto which are hereby incorporated herein and form a part hereof,
together with the Merger Agreement, set forth all of the covenants,
agreements, stipulations, promises, conditions and understandings
between Landlord and Tenant concerning the Premises and there are no
covenants, agreements, stipulations, promises, conditions or
understandings, either oral or written, between them concerning the
Premises other than in the Merger Agreement and herein set forth.
Prior to the Commencement Date, Tenant was affiliated with Landlord
and Tenant and certain of its other affiliates occupied the Premises.
As of the Commencement Date, a change of control of Tenant was
effectuated by merger. Accordingly, notwithstanding anything expressed
or implied in this Lease to the contrary, references in this Lease to
"Tenant," or to acts or omissions or obligations of Tenant, its
agents, representatives, officers, employees, contractors, successors
and assigns shall be deemed to refer only to periods subsequent to the
Commencement Date except where such reference explicitly indicates
otherwise, and Tenant shall have no liability hereunder for periods
prior to the Commencement Date, all with the same effect as if Tenant
first occupied the Premises on the Commencement Date. However, nothing
contained herein shall in any way affect or
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vitiate any provisions of the Merger Agreement, and in the event of
any inconsistency between this Lease and the Merger Agreement, the
Merger Agreement shall control.
SECTION 37
RECORDING
37.01 RECORDING: This Lease shall not be recorded by Tenant; however, Tenant
----------
shall have the right to file or record a memorandum of lease or
affidavit of claim with respect to this Lease or the Premises. At
Landlord's option, Landlord may record this Lease. Upon either
party's request, the other party shall execute and deliver to the
requesting party a memorandum of lease or affidavit of claim for
recording by the requesting party.
SECTION 38
GENERAL
38.01 GENERAL TERMS: Many references in this Lease to persons, entities and
--------------
items have been generalized for ease of reading. Therefore, reference
to a single person, entity or item will also mean more than one
person, entity or thing whenever such usage is appropriate.
Similarly, pronouns of any gender should be considered
interchangeable with pronouns of other genders.
38.02 JOINT AND SEVERAL: In the event more than one party signs this Lease as
------------------
Tenant such parties shall be both jointly and severally liable for
payment of amounts due hereunder and performance of the terms and
conditions hereof. This Lease may be enforced by Landlord against any
of such parties at Landlord's sole discretion. Each Tenant consents
to the in personam jurisdiction of the Michigan Courts located in
Washtenaw County, Michigan and the United States Federal Court for
the Eastern District of Michigan.
38.03 CAPTIONS: Captions to sections and paragraphs are provided solely for the
---------
sake of convenience and shall have no substantive effect whatsoever.
38.04 AMENDMENTS: This lease can be modified or amended only by a written
-----------
agreement signed by Landlord and Tenant.
38.05 BINDING LEASE: All provisions of this Lease are and will be binding on
--------------
the heirs, executors, administrators, personal representatives,
successors and assigns of Landlord and Tenant.
38.06 GOVERNING LAW: The laws of the State of Michigan will control in the
--------------
construction and enforcement of this Lease.
It is hereby agreed between Landlord and Tenant that the Second
Amended and Restated Lease for Phase I through Phase V between Landlord
and Tenant dated November 24, 1997, is terminated effective the date
hereof and shall be no longer in force or effect as of said date.
This Lease may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signature thereto
and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
LANDLORD:
DOMINO'S FARMS OFFICE PARK
LIMITED PARTNERSHIP
(a Michigan limited partnership)
By: DOMINO'S FARMS HOLDING LLC
(A Michigan limited liability company)
Its General Partner
By: DOMINO'S FARMS ENTERPRISES
LIMITED PARTNERSHIP
(a Michigan limited partnership)
Its Managing Member
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
XXXXXX X. XXXXXXXX
Its General Partner
WITNESS
/s/ Xxxxxxx Xxxxxxxx
------------------------------
/s/ Xxxxxx Xxxxxxxx
------------------------------
WITNESS: TENANT:
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DOMINO'S PIZZA, INC.
(a Michigan corporation)
/s/ By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxxxxxx
Its: Vice President
/s/ Xxxxx X. Xxxxxxxx
------------------------------
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RIDER A
OFFICE LOCATION
Current Space (Occupied by)
-------------
Per attached drawing
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RIDER B
RULES AND REGULATIONS
The Landlord, or the Agent of the Landlord, as the case may be, reserves
the right to make such other further and reasonable rules and regulations as in
its judgment may from time to time be necessary or desirable for the safety and
preservation of good order and prestige therein.
Wherever the word "Tenant" occurs, it is understood and agreed that it
shall mean Tenant's employees, 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.
1. No sign, picture, lettering, notice or advertisement of any kind shall be
painted, taped or displayed on or from the windows, doors, roof or
outside wall of the premises. Landlord shall have the right to approve
all signs, exhibits and displays to be made by Tenant in and from
common areas of the building. All of Tenant's interior sign painting
or lettering shall be approved by Landlord and the cost thereof shall
be paid by Tenant. Notwithstanding the foregoing, Tenant shall be
permitted to maintain all signage in existence on the date hereof.
2. No electric or other wires for any purpose shall be brought into the
premises without Landlord's written permission specifying the manner
in which same may be done. This shall prohibit use of hot plates
(cooking) and only approved electric percolators or coffee makers
shall be permitted. No boring, cutting or stringing of wire shall be
done without Landlord's prior written consent. Tenant shall not
disturb or in any way interfere with the electric light fixtures, and
all work upon or alterations to the same shall be done by persons
authorized by Landlord.
3. Water closets and other toilet fixtures shall not be used for any purpose
other than that for which the same is intended, and any damage
resulting to same from Tenant's misuse shall be paid for by Tenant. No
person shall waste water by interfering or tampering with the faucets
or otherwise.
4. No person shall disturb the occupants of this or adjoining buildings or
premises by the use of radios, television sets, loud speakers, or
musical instruments, or by making loud or disturbing noises.
5. No bicycle or other vehicle and no pets shall be allowed in offices, hall,
corridors or elsewhere in the building.
6. No floor load exceeding an average rate of 60 pounds of live load per
square foot of floor area can be allowed. Tenant's business machines
and mechanical equipment which cause vibration or noise that may be
transmitted to the building structure or to any other leased space in
the building shall be placed and maintained by Tenant in settings of
cork, rubber, spring or other types of vibration eliminators
sufficient to reduce to an appropriate level such vibration or noise.
7. Any safe, vault, heavy equipment, furniture, or machinery moved in or out
of the premises shall be moved in such manner and at such times as
Landlord shall in each instance approve, which approval shall not be
unreasonably withheld.
8. No additional lock or locks shall be placed on any door in the building
without Landlord's prior written consent. Upon the termination of this
Lease, the Tenant shall surrender to Landlord all keys and card access
to the premises. A twenty-five dollar fine will be imposed for each
key or card access not returned to Landlord.
9. Tenant shall not install or operate any steam or gas engine or boiler, or
carry on any mechanical business on said premises, or use oil burning
fluids or gasoline for heating or lighting or for any other purpose.
No article deemed extra hazardous on account of fire or other
dangerous properties, or any explosive, shall be brought into said
premises.
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10. The premises shall not be used for lodging or sleeping, or for any immoral
or illegal purposes.
11. Any newspaper, magazine or other advertising done from the said premises or
referring to the said premises, Domino's Farms or Prairie House, which
in the reasonable opinion of the Landlord is objectionable, shall be
immediately discontinued upon notice from the Landlord.
12. The sidewalk, entry, passage hall and stairway shall not be obstructed or
used for any purpose other than those of ingress and egress without
the express written consent of the Landlord.
13. Window coverings other than those which may be provided by Landlord, either
inside or outside of the windows, may only be installed with the
Landlord's prior written consent, which consent shall not be
unreasonably withheld, and must be furnished, installed and maintained
at the expense of the Tenant and at Tenant's risk, and must be of such
shape, color, material, quality and design as may be prescribed by the
Landlord. Tenant shall exercise reasonable care in placing furniture,
equipment, etc. in such a position as to not obstruct the windows.
14. Tenant will exercise reasonable discretion with regard to thermostat
settings within the tenant space. Acceptable temperatures for heating
will not exceed 72 degrees or fall below 68 degrees for cooling.
15. Tenant will be responsible for vending service located within the tenant
premises. Landlord will reasonably approve vending contractors within
the building. Tenant will coordinate vending installation with
Landlord.
16. Domino's Farms Prairie House is a smoke free building; smoking of cigars,
pipes and cigarettes are not allowed inside the building.
17. Subject to the terms of the Lease between Tenant and Landlord, Landlord
will provide normal heating, ventilation and air conditioning as
reasonably required by prevailing weather conditions to the leased
premises.
18. Periodic fire drills and emergency evacuation drills (to include severe
weather) will be conducted by the building Security Department. Tenant
participation is mandatory.
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RIDER C
ADDITIONAL PROVISIONS
1. PARKING SPACES
--------------
Tenant shall be provided a minimum of twelve (12) parking spaces in the
parking lot adjacent to Lobby G.
2. OPTIONS TO RENEW
----------------
(a) First Extended Term
-------------------
Tenant may extend the term of this Lease for one additional term consisting
of five (5) years (the "First Extended Term ") upon expiration of the
initial Term, provided that Tenant is not then in default beyond the
expiration of any applicable grace and cure period after notice.
The First Extended Term shall be upon the same conditions as provided in
this Lease, except that (i) the Base Annual Rent for the First Extended
Term shall be as follows:
Year Base Annual Rent
---- ----------------
Year 6 $4,668,913
Year 7 $4,793,410
Year 8 $4,936,510
Year 9 $5,053,852
Year 10 $5,189,797
, and (ii) in addition to the payment of Base Annual Rent, Tenant shall
during the First Extended Term pay to Landlord for the use of the fitness
center a reasonable price or fee which the Landlord may then be charging to
Tenant and the other tenants in the Building on a prorata basis (based upon
the rentable square feet of the Premises in relation to the rentable square
feet of all of Domino's Farms), which amount shall be payable in equal
monthly installments on each Rent Day; provided, however that Tenant shall
not be obligated to pay such price or fee at such times as Tenant provides
Landlord with written notice that it elects not to use such fitness center
during the First Extended Term. The Tenant shall exercise the option for
the First Extended Term by notifying the Landlord in writing at least 180
days before the current Term expires. Upon such exercise this Lease shall
be deemed to be extended without the execution of any further lease or
other instrument, except for any instrument that may be prepared by
Landlord to confirm the agreement of the parties, which Tenant agrees to
execute and deliver to Landlord promptly on request. Time shall be of the
essence with respect to the exercise of such option by Tenant.
(b) Second Extended Term
--------------------
Tenant may extend the Term of this Lease for a second additional term
consisting of five (5) years (the "Second Extended Term ") upon expiration
of the First Extended Term, provided that Tenant (i) has exercised its
option for the First Extended Term, and (ii) is not then in default beyond
the expiration of any applicable grace and cure period after notice.
The Second Extended Term shall be upon the same conditions as provided in
this Lease, except that (i) the Base Annual Rent for the Second Extended
Term shall be the fair market rent for the Premises (the "FMV") on the date
which is nine years, two hundred ten days after the Commencement Date (the
"Rent Appraisal Date"), and (ii) in addition to the payment of Base Annual
Rent, Tenant shall during the Second Extended Term pay to Landlord for the
use of the fitness center a reasonable price or fee which the Landlord may
then be charging to Tenant and the other tenants in the Building on
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a prorata basis (based upon the rentable square feet of the Premises in
relation to the rentable square feet of all of Domino's Farms), which
amount shall be payable in equal monthly installments on each Rent Day;
provided, however that Tenant shall not be obligated to pay such price or
fee at such times as Tenant provides Landlord with written notice that it
elects not to use such fitness center during the Second Extended Term.
The Tenant shall exercise the option for the Second Extended Term by
notifying the Landlord in writing at least 180 days before the First
Extended Term expires. Upon such exercise this Lease shall be deemed to be
extended without the execution of any further lease or other instrument,
except for any instrument that may be prepared by Landlord to confirm the
agreement of the parties, which Tenant agrees to execute and deliver to
Landlord promptly on request. Time shall be of the essence with respect to
the exercise of such option by Tenant.
The FMV shall be determined by the mutual written agreement of Landlord and
Tenant. In the event that Landlord and Tenant shall not have reached mutual
agreement as to the FMV on or before the sixtieth (60th) day following the
Rent Appraisal Date, but Landlord's determination of the FMV is less than
five percent (5%) greater than Tenant's determination of the FMV (which
respective determinations shall be based on blind written bids submitted at
the end of the sixty (60) day period by each of Landlord and Tenant to the
other), the FMV will be the average of Landlord's and Tenant's respective
determinations. In the event that Landlord and Tenant shall not have
reached mutual agreement as to the FMV on or before the sixtieth (60th) day
following the Rent Appraisal Date and Landlord's determination of the FMV
is more that five percent (5%) greater than Tenant's determination of the
FMV, then Landlord and Tenant each shall, no later than the seventy-fifth
(75th) day following the Rent Appraisal Date, select a Real Estate
Appraiser, as hereinafter defined. If either party shall fail to so appoint
a Real Estate Appraiser, the one Real Estate Appraiser so appointed shall
proceed to determine the FMV. In the event that the Real Estate Appraisers
selected by Landlord and Tenant agree as to the FMV, said determination
shall be binding on Landlord and Tenant. In the event that the Real Estate
Appraisers selected by Landlord and Tenant cannot agree as to the FMV on or
before the one hundred fifth (105th) day following the Rent Appraisal Date,
then said Real Estate Appraisers shall each designate his or her
calculation of FMV and shall jointly select a third Real Estate Appraiser,
provided that if they cannot agree on the third Real Estate Appraiser on or
before the one hundred twentieth (120th) day following the Rent Appraisal
Date, then said third Real Estate Appraiser shall be selected by the
President of the American Arbitration Association of Southfield, Michigan
(or any successor thereto). The third Real Estate Appraiser shall designate
his or her calculation of FMV no later than the one hundred fiftieth
(150th) day following the Rent Appraisal Date and the average of the three
FMV's designated by the three Real Estate Appraisers shall be the FMV as
determined hereunder, except that for the purpose of such averaging each
and every designated FMV which varies by more than ten percent (10%) from
the amount which is the average of the other two (2) designated FMV's shall
be ignored (it being understood that if two (2) designated FMV's so vary,
the remaining designated FMV shall be the FMV as determined hereunder). The
term "Real Estate Appraiser" shall mean a fit and impartial person having
not less than five (5) years experience as an appraiser of leasehold
estates relating to first class office space in Ann Arbor, Michigan. The
appraisal shall be conducted in accordance with the provisions of this
Section and, to the extent not inconsistent herewith, in accordance with
the prevailing rules of the American Arbitration Association in Michigan or
any successor thereto. The final determination of the Real Estate
Appraiser(s) shall be in writing and shall be binding and conclusive upon
the parties, each of which shall receive counterpart copies thereof. In
rendering such decision the Real Estate Appraiser(s) shall not add to,
subtract from or otherwise modify the provisions of this Lease. The fees
and expenses of the Real Estate Appraisers shall be shared equally by
Landlord and Tenant.
In rendering the determination of FMV the real estate appraiser(s) shall
assume or take into consideration as appropriate all of the following: (1)
Landlord and Tenant are typically motivated; (2) the Landlord and
prospective Tenant are well informed and well advised and each is acting in
what it considers its own best interest; (3) a reasonable time under then-
existing market conditions is allowed for exposure of the Premises on the
open market; (4) the rent is unaffected by any obligation of Landlord to
pay brokerage commissions or tenant improvement allowances, or by
concessions, special financing amounts and/or terms, or unusual services,
fees, costs or credits in
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connection with the leasing transaction; (5) the Premises are fit for
immediate occupancy and use "as is" and require no additional work by
Landlord and that no work has been carried out therein by the Tenant, its
subtenant, or their predecessors in interest during the Term which has
diminished the rental value of the Premises; (6) in the event the Premises
have been destroyed or damaged by fire or other casualty, they have been
fully restored; (7) that the Premises are to be let with vacant possession
and subject to the provisions of this Lease; and (8) market rents then
being charged for comparable space in other similar office buildings in the
same area, provided that arm's-length leases of space in the Building
during the preceding year shall be the best evidence of FMV. In rendering
such decision and award, the arbitrators shall not modify the provisions of
this Lease. The decision and award of the reals estate appraisers shall be
in writing and shall be final and conclusive on all parties and counterpart
copies thereof shall be delivered to each of said parties. Judgment may be
had on the decision and award of the arbitrators so rendered in any court
of competent jurisdiction.
3. RIGHT OF FIRST OFFER FOR ADDITIONAL SPACE
-----------------------------------------
Tenant shall have the right of first offer with respect to leasing
additional space in Xxxxx 0, Xxxxx 2 and Phase 3 of the Building as such
space ("Additional Space") becomes available for leasing by the Landlord,
provided that (1) this Lease is then in full force and effect, and (2) at
least one (1) year of its term then remain (or, if less than one (1) year
remain, Tenant has given notice of its option to extend the initial term of
this Lease).
Landlord shall notify (the "Offer Notice") Tenant when Additional Space
becomes available for leasing and the terms and conditions (including
without limitation, provisions for increase in rent and additional rent,
provided that the expiration date for the lease of such Additional Space
shall be coterminous with this Lease) upon which Landlord is willing to
lease the Additional Space to Tenant (the "Offer Terms"), and Tenant shall
then have 30 days to notify Landlord that it agrees to lease all (but not
less than all, unless Landlord agrees to lease only part of the Additional
Space to Tenant) of the Additional Space on the Offer Terms.
If Tenant declines to accept all (or such lesser amount as Landlord may
approve, which approval shall not be unreasonably withheld provided that
(i) Tenant pays for all costs incurred to reconfigure the Additional Space,
and (ii) the portion of the Additional Space which Tenant proposes to lease
such be located entirely at one end of the Additional Space) of the
Additional Space on the Offer Terms, or fails to reply to Landlord's notice
of the availability of Additional Space within the 30 day period specified
above, Tenant's right to lease the Additional Space which is the subject of
the offer shall expire and Landlord may lease the Additional Space to any
other party on terms no less favorable to Landlord than those contained in
the Offer Terms, without further liability to Tenant; provided, however,
that if within 180 days from the date of the Offer Notice Landlord fails to
consummate a lease of the Additional Space to any other party on terms no
less favorable to Landlord as aforesaid, then the provisions of this
Paragraph 3 shall again apply.
If Tenant agrees by reply notice to lease all (or such lesser amount in
accordance with the immediately prior sentence) of the Additional Space
offered on the Offered Terms, Landlord and Tenant shall promptly enter into
a modification of this Lease to incorporate the subject space into this
Lease.
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