EXHIBIT 10.8
LEASE
LANDLORD: XXXXXX XXXX INVESTMENTS, a Michigan Co-Partnership
TENANT: ASSET ACCEPTANCE CORPORATION, a Michigan Corporation
Dated for reference purpose as of: June, 1999
ARTICLE A
DEFINED TERMS, EXHIBITS AND PREAMBLE
A-1. DEFINED TERMS. Each reference in this Lease to any of the terms described
in this Article A shall mean and refer to the following: other terms are as
defined in this Lease:
(a) LANDLORD: XXXXXX XXXX INVESTMENTS, a Michigan Co-Partnership
00000 X. Xxxxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) TENANT: ASSET ACCEPTANCE CORPORATION, a Michigan Corporation
Xxxxxx Xxx.
Xx. Xxxxx Xxxxxx, XX 00000
(c) LOCATION OF DEMISED PREMISES: (Address) 0000 Xxxxxx Xx.
Xxxxxx, XX
(d) APPROXIMATE SQUARE FOOTAGE OF DEMISED PREMISES: 22,500
(e) TERM: Five (5) years. Three (3) months*(Expiring 8/31/04)
(f) FIXED RENT: $1,062,450 per total Rental Period.
Commencing 9/1/99
(g) RENT PER MONTH: $16,563.00 (1st Year) $17,970.00 (4th Year)
$17,031.00 (2nd Year) $18,438.00 (5th Year)
$17,500.00 (3rd Year) *June, 1999 -0- Rent
July, 1999 $4,143.00
August, 1999 $8,283.00
(h) SCHEDULED TERM COMMENCEMENT DATE: 6/1/99
(i) SECURITY DEPOSIT: $20,000.00
(j) LIABILITY INSURANCE LIMITS: $500,000/$1,000,000/$300,000
(k) LANDLORD'S ADDRESS: 00000 X. Xxxxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
(l) TENANT'S ADDRESS: 00000 Xxxxxx Xxx.
Xx. Xxxxx Xxxxxx, XX 00000
(m) PERMITTED USES: Office
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A-2. EXHIBITS. The following Exhibits, and Riders, if any, are attached to this
Lease after the signatures and are incorporated herein by reference thereto.
Legal description of Parcel. Land located in the City of Xxxxxx, County
of Macomb and State of Michigan described as Lots 17, 18, and 19 Xxxxxx
Industrial Subdivision, as recorded in Liber 78, Page 24 of Plats,
Macomb County Records.
Rider Nos. 1 through 1, inclusive. (Option to Renew)
A-3. PREAMBLE. Landlord hereby leases to Tenant, and Tenant hereby leases and
accepts from Landlord, that certain real property more particularly described in
Exhibit A (the "Parcel") and the "Improvements," as hereinafter defined,
(together the "Demised Premises") for the Term and upon the covenants and
conditions hereinafter specified.
ARTICLE B
ARTICLE C
COMMENCEMENT OF TERM
The Term of this Lease shall commence upon the execution of the Lease
by Tenant and Landlord, but not later than June 18, 1999. Tenant shall pay -0-
Rent for June, $4,143.00 monthly rent for July and $8,285.00 monthly rent for
August, 1999.
C-1. DELAY OF POSSESSION. If Landlord shall be unable for any reason to give
possession of the premises on the date of the commencement of the term hereof,
Landlord shall not be subject to any liability for the failure to give
possession on such date but the rent to be paid herein shall not commence until
the premises are ready for occupancy by Tenant. No such failure to give
possession on the date of the commencement of the term shall affect tile
validity of this Lease or the obligations of Tenant hereunder. If permission is
given to Tenant to enter into possession of tile premises, or to occupy
premises, prior to the date specified as the commencement of the term of this
Lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease.
C-2. COMMENCEMENT DATE. On the commencement date or within a reasonable time
thereafter upon request by Landlord, Tenant shall execute a written instrument
confirming the Commencement Date and the date on which the term shall end, and
such other information as either Landlord or mortgagee of Leased property shall
request.
C-3. ACCEPTANCE OF PREMISES. Landlord and Tenant acknowledge that Tenant is
taking the Premises in "as is" condition. Tenant acknowledges that it has
inspected the Premises and is satisfied with the physical condition there of
apparent from said viewing. By accepting possession of the Premises, Tenant
acknowledges that it is satisfied with the physical condition
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of the Premises at the time of accepting possession. Tenant acknowledges that no
representations or warranties concerning the condition of the Premises have been
made by Landlord or any agent, officer or employee of Landlord, other than those
expressed herein. Landlord shall have no obligations or responsibility to make
any repairs, renovations or improvements to the Premises whatsoever.
ARTICLE D
RENT
D-1. FIXED RENT. Tenant shall pay the Fixed Rent (which includes taxes and
insurance) to Landlord in advance upon the first day of each month of the Term,
at Landlord's address or at such other place designated by Landlord in a notice
to Tenant, without any prior demand therefore and without any deduction or
set-off whatsoever. If the Term shall commence on a day other than the first day
of a month or end on a day other than the last day of a month, then Tenant shall
pay, upon the commencement date of the Term and the first day of the last month,
a pro-rata portion of the Fixed Rent, prorated on a per diem basis, with respect
to the portions of the month included in the Term.
D-2. ADDITIONAL RENT. Tenant shall pay to Landlord as additional rent under this
Lease ("Additional Rent"), prorated on a monthly basis, (a) all amortization of
the costs, including financing costs, for capital expenditures required by a
governmental entity for energy conservation, life safety or other purposes; and
(b) all other charges required to be paid by Tenant to Landlord hereunder,
including, without limitation, payments for taxes and assessments as defined in
Section E-1, maintenance expenses, insurance and costs of repairs. Tenant shall
pay Additional Rent upon written demand by Landlord. "Rent" shall mean Fixed
Rent and Additional Rent.
ARTICLE E
TAXES AND ASSESSMENTS
E-1. PAYMENT OF TAXES AND ASSESSMENTS. Tenant agrees to pay as additional rental
all water rates, assessments. general or special, and other governmental levies
and charges general and special, ordinary and extraordinary, and any increase in
real estate taxes over and above $28,500.00 per tax year, and Tenant shall pay
such tax increase within ten (10) days of Landlord forwarding or evidence of
such tax increase to Tenant. Any property tax increase over $ 28,500.00 per tax
year, and assessments for the first and last year of the original term or any
extended terms as the case may tie shall be prorated between Landlord and Tenant
so that the Tenant will be responsible for any such tax or assessment
attributable to the period during which the Tenant has possession of the
premises in the year in which the Lease is terminated. Proration shall be on the
due date basis.
E-2. SUBSTITUTE TAX. In the event that during the term of this lease (i) the
real property taxes levied or assessed against the real property shall be
reduced or eliminated, whether the cause thereof is a judicial determination of
unconstitutionality, a change in the nature of the taxes imposed, or otherwise,
and (ii) there is levied, assessed or otherwise imposed upon the Landlord, in
substitution for all or part of the tax thus reduced or eliminated, a tax
(hereinafter called the
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"Substitute Tax") which imposes a burden upon Landlord by reason of its
ownership of the real property, then to the extent of such burdens the
Substitute Tax shall be deemed a real estate tax and shall be paid by Tenant, or
any increase over the base tax year of such Substitute Tax shall be paid by
Tenant.
E-3. LANDLORD'S RIGHT. If any tax or assessment is not paid as required by this
Article E, then, at its sole option, Landlord may, but shall not be required to,
pay the same and shall be entitled to repayment by Tenant as Additional Rent.
E-4. CONTEST. Upon at least ten (10) days prior notice to Landlord, Tenant may
in good faith contest, seek to xxxxx or otherwise challenge any tax or
assessment in either Tenant's name or Landlord's name, or both, and may take any
and all action with respect thereto as it may deem necessary or advisable.
Landlord shall not pay said tax or assessment or otherwise prejudice such
contest and shall cooperate with Tenant and execute such papers as may from time
to time be needed or desired by Tenant to bring, defend or facilitate such
proceedings; provided, however, that any such action shall be at Tenant's own
cost and expense and without cost or expense to the Landlord or the Demised
Premises. No such action shall be taken or maintained by Tenant without Tenant's
first delivering to Landlord an indemnity agreement from a solvent licensed
surety company, in an appropriate sum, guaranteeing to hold Landlord and the
Demised Premises free and harmless from loss, cost, expense or liability in
connection with or arising out of any such action. All refunds and abatements,
net of any costs or expenses incurred by Landlord in connection therewith, shall
belong to Tenant to the extent Tenant has paid such tax or assessment.
E-5. PERSONAL PROPERTY TAXES. Tenant shall pay or cause to be paid, prior to
delinquency, any and all taxes and assessments levied upon all trade fixtures,
inventories and other personal property placed in and upon the Demised Premises
by Tenant.
ARTICLE F
INSURANCE AND INDEMNITY
FIRE INSURANCE AND EXTENDED COVERAGE
F-1. COVERAGE. Landlord and Tenant agree that Landlord shall obtain insurance
during the term of the Lease and any extension thereof in order to keep the
building and all other improvements to the Demised Premises insure; for the full
replacement cost thereof, as determined by Landlord against loss by fire with
standard extended risk coverage, excess liability coverage, vandalism and
malicious mischief and business interruption insurance to provide rental income
irrespective of any casualty or loss in an amount adequate to cover the
obligations of Tenant under the Lease. Such insurance carried by Landlord shall
have a $1,000.00 deductible clause and Tenant shall self insure to the extent of
said $1,000.00.
F-2. COST OF POLICY. Tenant shall be obligated to reimburse Landlord when a
total of all such insurance costs incurred by Landlord exceeds $1,500.00 per
year, and prorated if necessary for the first and last yea of the original term
or any extended term. Tenant shall pay the increase over $1,500.00 of invoiced
amount to Landlord within ten (10) days of Lessor furnishing notice to Lessee.
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F-3. TENANT'S LIABILITY INSURANCE. Tenant agrees that it will obtain, at or
prior to the commencement of the Lease Term and maintain at all times thereafter
until the termination of this Lease, for the mutual benefit of Landlord,
Landlord's mortgagee, and of Tenants, and naming Landlord and Landlord's
mortgagee as insured parties, general public liability insurance including
blanket contractual coverage against claims for or arising out of personal
injury, death or property damage, occurring in, on, or about the Demised
Premises or property in, on, or about the streets, sidewalks or premises
adjacent to the Demised Premises, such insurance to afford protection to the
limit at the beginning of the term of not less than $500,000.00 Dollars with
respect to injury or death of a single person, and to the limit of not less than
$1,000,000.00 Dollars with respect to any one occurrence, and to the limit of
not less than $300,000.00 Dollars with respect to any one occurrence of property
damage and thereafter in such changed amounts as the Landlord may reasonably
require. Tenant shall furnish evidence suitable to Lessor that such insurance
policy or policies are in force at or prior to the commencement of the original
term of the Lease and shall continue to provide Landlord with such evidence with
respect to such policies as are from time to time in force until die termination
of this Lease. Such policy or policies shall provide for thirty (30) days prior
written notice to Landlord or cancellation.
F-4. TENANT'S PROPERTY INSURANCE. Tenant shall assume the risk of damage to any
fixtures, goods, inventory, merchandise, equipment, furniture and Tenant's
leasehold improvements, and Landlord shall not be liable for injury to Tenant's
business or any loss of income therefrom relative to such damage. Tenant shall
maintain the following coverage with respect to such items during the Term of
this Lease.
(a) Against fire, extended coverage, vandalism, malicious mischief and
all risks, upon property of every description and kind owned by Tenant and
located within the Demised Premises or for which Tenant is legally liable, or
installed by or on behalf of Tenant, including, without limitation, furniture,
fittings, installations, including Tenant improvements and betterment, fixtures
and any other personal property, in an amount not less than ninety percent (90%)
of the full replacement cost thereof. In the event that there shall be a dispute
as to the amount which comprises full replacement cost, the decision of Landlord
or Landlord's first mortgagee shall be conclusive;
(b) Broad form boiler and machinery insurance on a blanket repair and
replacement basis with limits per accident not less than the replacement cost of
all Tenant's leasehold improvements and of all boilers, pressure vessels,
air-conditioning equipment, miscellaneous electrical apparatus and all other
insurable objects owned or operated by the Tenant or by others (other than
Landlord) on behalf of Tenant in the Demised Premises, or relating to or serving
the Demised Premises;
(c) Loss of income and extra expense insurance in such amounts as will
reimburse Tenant for direct and indirect loss of earnings attributable to all
perils commonly insured against by prudent Tenants or attributable to prevention
of access to the Demised Premises as a result of such perils; and
(d) Worker's compensation insurance covering all Tenant's employees
working in the Demised Premises.
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F-5. TENANT'S INSURANCE CERTIFICATES. Tenant shall furnish to Landlord, upon the
date of commencement of the Term of this Lease and thereafter within thirty (30)
days prior to the expiration of each such policy, a certificate of insurance
issued by the insurance carrier of each policy of insurance carried by Tenant
pursuant hereto. Said certificates shall) expressly provide that such policies
shall not be cancelable or subject to reduction of coverage or otherwise be
subject to modification except after thirty (30) days prior written notice by
registered mail to the parties named as insureds in this Section F-5. Landlord,
its successors and assigns, and any entities holding any interest in the Demised
Premises, including, without limitation, any ground lessor and the bolder of any
fee or leasehold mortgage, shall be named as insureds under each such policy of
insurance except worker's compensation insurance, maintained by Tenant pursuant
to this Lease.
F-6. TENANT'S FAILURE. If Tenant fails to maintain any insurance required in
this Lease, Tenant shall be liable for any loss or cost resulting from said
failure. This Section F-6 shall not be deemed to be a waiver of any of
Landlord's rights and remedies under any other provision of this Lease.
F-7. WAIVER OF SUBROGATION. All insurance as required by either party, shall
include provisions denying to the insurer acquisition by subrogation of rights
of recovery against the other party to the extent the rights have been waived by
the insured prior to occurrence of loss or injury. The other party shall be
entitled to have certificates of the policies containing either provisions.
Tenant shall not acquire as an insured under any insurance on the Building, or
as a payee of any such insurance proceeds, any right to participate in the
adjustment of loss or to receive the proceeds. Each party, notwithstanding any
provisions of this Lease to the contrary, waives any rights or recovery against
the other for loss or injury against which the waiving party is protected by
insurance containing provisions denying to the insurer acquisition of rights by
subrogation.
F-8. INDEMNIFICATION OF LANDLORD. Tenant shall indemnify and hold Landlord and
the Demised Premises harmless from and against (a) any and all liability,
penalties, losses, damages, costs and expenses, demands, causes of action,
claims or judgments arising from or growing out of any injury to any person or
persons or any damage to any property as a result of any accident or other
occurrence during the Term of this Lease occasioned by any act or omission of
the Tenant, its officers, employees, agents, servants, subtenants,
concessionaires, licensees, contractors, invitees or permittees, or arising frog
or growing out of the rue, maintenance, occupation or operation of the Demised
Premises during the Term of this Lease; and (b) from and against all legal costs
and charges, including reasonable attorneys' fees, incurred with respect to any
of such matters mind the defense of any action out of the same or in discharging
the Demised Premises or any part thereof from any and all liens, charges or
judgments which may accrue or be placed thereon by reasons of any act or
omission of the Tenant; provided, however, that Tenant shall not be required to
indemnify Landlord for any damage or injury of any kind arising as the result of
Landlord's willful acts or those of its agent or employees.
F-9. DISTRIBUTION OF AWARD. In the event of damage to or destruction of the
Demised Premises entitling Landlord to terminate this Lease pursuant to Article
K hereinbelow, and if Landlord terminates this Lease, Tenant will immediately
pay to Landlord all of its insurance proceeds, if any, relating to Tenant's
leasehold improvements and alterations (but not to Tenant's trade fixtures,
equipment, furniture or other personal property of Tenant) installed at
Landlord's
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expense in the Demised Premises, or the portion of the insurance proceeds, if
any, relating to the amortized portion, amortized on a straight line basis. over
the Lease Term, of Tenant's leasehold improvements and alterations if not
installed at Landlord's expense.
ARTICLE G
REPAIRS, MAINTENANCE AND ALTERATIONS
G-1. TENANT REPAIRS AND MAINTENANCE. Landlord shall put in proper running
condition all HVAC equipment and make any repairs during the first 90 days of
the Lease, beginning September 1, 1999. Tenant shall, at Tenant's sole cost and
expense, keep, maintain, replace, and repair the Demised Premises including
without limitation, all floors, subfloors, floor coverings, windows, ceilings,
roofs (interior), walls (interior), fixtures, doors, electrical and lighting
equipment, plumbing, beating, air-conditioning (Tenant shall procure and
maintain, at Tenant's expense, an air-conditioning maintenance contract, a copy
of which shall be delivered to Landlord, which shall call for a minimum of two
service inspections per year, in the Spring and Fall, and changing all filters
four times per year), ventilating systems, driveways, walkways, parking lots,
loading areas, fences, signs, lawns and landscaping (including, but not limited
to watering, and also fertilizing lawns and trees at a minimum of four times per
year, maintaining and replacing when necessary any shrubbery or other
landscaping provided by Landlord) in all respects in good repair. Tenant shall,
at Tenant's own expense, immediately replace all glass in the Demised Premises
that may be broken during the Term with glass at least equal to the
specification and quality of the glass so replaced. Notwithstanding the
foregoing, Landlord shall have the option at any time without cause to assume
any or all of the foregoing maintenance and repair responsibilities and to
require Tenant to reimburse Landlord, as Additional Rent, for the cost of all
such services, together with an accounting and management services fee of ten
percent (10%) of the cost of such repair or services.
G-2. LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's obligations under
Section G-1, or under any other provision of this Lease or, if Landlord
otherwise deems it reasonably necessary to do so, Landlord shall have the option
to enter. upon the Demised Premises after ten (10) days prior written notice to
Tenant, or in the case of an emergency immediately without prior notice, in
order to perform such obligations on Tenant's behalf and put the Demised
Premises in good order, condition, and repair. The cost of such performance by
Landlord together with interest thereon at the maximum rate then allowable by
law shall become due and payable as Additional Rent to Landlord.
G-3. LANDLORD'S OBLIGATIONS. Except for the obligations of Landlord under
Article K (Damage or Destruction) and Article L (Eminent Domain), it is intended
by the parties to this Lease that Landlord has no obligation whatsoever to
repair and maintain the Demised Premises nor the equipment therein, whether
structural or nonstructural, all of which obligations are intended to be those
of the Tenant under Section G-1 except roof and four outer walls. Tenant
expressly waives the benefit of any statute or regulation which would otherwise
afford Tenant the right to make repairs Landlord's expense or to terminate this
Lease because of Landlord's failure to keep the Demised Premises in good order,
condition and repair. Landlord shall not be liable to Tenant for injury or
damage that may result from any defect in the construction or condition of the
Demised
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Premises. Tenant waives any right to make repairs at the expense of Landlord
under any law, statute or ordinance now or hereafter in effect.
G-4. ALTERATIONS.
(a) INSTALLATION AND REMOVAL. Tenant shall not, without Landlord's
prior written consent, make any alterations, improvements or additions,
including lighting fixtures, space beaters, air-conditioning, electrical
equipment, power panels, plumbing, carpeting, window covering, air lines and
fencing or change the exterior paint or type of exterior materials (collectively
"Alterations"), in, on or about the Demised Premises. In no event shall Tenant
be entitled to penetrate the exterior of the Building or roof with respect to
any alteration without Landlord's prior written approval. Landlord may require
that Tenant remove any or all of said Alterations at the expiration of the Term
and restore the Demised Premises to their prior condition. Should Tenant make
any Alterations without the prior approval of Landlord, Landlord may require
that Tenant remove any or all of the same.
(b) PLANS AND PERMITS. Any Alterations in or about the Demised Premises
that Tenant shall desire to make and which require the consent of the Landlord
shall be presented to the Landlord in written form, with proposed detailed
plans. If Landlord shall give its consent, the consent shall be deemed
conditioned upon Tenant's acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to Landlord prior to the
commencement of the work and the compliance by Tenant of all conditions of said
permit in a prompt and expeditious manner. In considering whether or not to
issue Landlord's prior written consent to any Alteration, Landlord shall have
the right to require Tenant to take all seasonable necessary steps to avoid
potential mechanics or materialmen's liens, including requiring Tenant to obtain
a payment or performance bond, requiring that Tenant use only creditworthy
subcontractors, requiring that Tenant obtain lien releases during the progress
of construction and requiring that Tenant hold back a percentage of the cost of
construction until lien free completion has occurred. Tenant shall reimburse to
Landlord, on demand, Landlord's reasonable costs of review and approval of such
plans and permits, including any out-of-pocket costs incurred by Landlord for
any third party services contracted for by Landlord to assist Landlord in
connection with its work of review and approval.
(c) EXPIRATION OF TERM. Unless Landlord requires their removal, as set
forth in Subsection G-4(a), all Alterations which may be made on the Demised
Premises shall become the property of Landlord and remain upon tend be
surrendered with the Demised Premises at the expiration of the Term.
Notwithstanding the provisions of this Subsection G-4(c), Tenant's machinery and
equipment, other than that which is affixed to the Demised Premises so that it
cannot be removed without material damage to the Demised Premises, shall remain
the property, of the Tenant and may be removed by Tenant.
*Landlord shall put in proper running condition all HVAC equipment and make an
repairs during the first 90 days of the Lease, beginning in September 1, 1999.
G-5. WORKMANLIKE QUALITY. All repairs, alterations, additions, and restoration
by Landlord or Tenant hereinafter required or permitted shall be done in a good
and workmanlike manner and in
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compliance with all applicable laws and lawful ordinances, bylaws, regulations
and orders of governmental authority and of the insurers of the Building.
G-6. LIENS. Tenant shall promptly pay and discharge all claims for services,
supplies, labor or materials furnished or alleged to have been furnished to or
for Tenant at or for use in the Demised Premises, which claims tie or may be
secured by any mechanics' or materialmen's lieu against the Demised Premises or
any interest therein. Tenant shall give Landlord not less than ten (10) days
notice prior to the commencement of any work in the Demised Premises, and
Landlord shall have the right to post notices of non-responsibility in or on the
Demised Premises as provided by law. If Tenant shall, in good faith, contest the
validity of any such lien, claim, or demand, then Tenant shall, at its sole
expense, defend itself and Landlord against the same and shall pay and satisfy
any adverse judgment that may be rendered thereon before the enforcement thereof
against the Landlord or the Demised Premises, upon the condition that if
Landlord shall require Tenant shall furnish to Landlord a surety bond
satisfactory to Landlord in an amount equal to such contested lien, claim or
demand indemnifying Landlord against liability for the same and holding the
Demised Premises free from the effect of such lien or claim. If any such lien is
filed, Landlord may, but shall not be required to, take such action or pay such
amount as may be necessary to remove such lien; and Tenant shall pay Landlord as
Additional Rent any such amounts expended by Landlord together with interest
thereon at the highest legal rate from the date of expenditure.
G-7. SURRENDER. On the last day of the Term hereof, or on any sooner
termination, Tenant shall surrender the Demised Premises to Landlord in the same
condition as when received, broom clean, carpets steam cleaned, ordinary wear
and tear excepted. Tenant shall repair any damage to the Demised Premises
occasioned by the removal of Tenant's trade fixtures, furnishings and equipment
as more particularly provided in Article H hereinbelow, which repair shall
include the patching and filling of holes within the Demised Premises, repair of
structural damage, resurfacing of the parking areas if the parking areas require
the filling of holes or the patching of broken-up material, and the repair of
the roof surface including resurfacing if deemed reasonably necessary by
Landlord after inspection of the roof. All penetrations of the roof shall be
resealed and water-tight. In no event may Tenant remove from Demised Premises
any mechanical or electrical systems, including beating or ventilating, air
lines, power panels, electrical distribution system, lighting fixtures, space
beaters, air-conditioning, plumbing, window shades, blinds or drapes, unless
Landlord specifically permits such removal in writing.
ARTICLE H
TENANT'S FIXTURES AND PERSONAL PROPERTY
Except as may be otherwise provided in Section G-4 above, Tenant, at Tenant's
sole cost and expose, may install any necessary trade fixtures, equipment and
furniture in the Improvements, provided that such items are installed and
removable without damage to the structure of the Building. Landlord reserves the
right to approve or disapprove of curtains, draperies, shades, paint, wallpaper,
or other interior improvements on wholly aesthetic grounds. Such improvements
must be submitted for Landlord's written approval prior to installation, or
Landlord may remove or replace such items at Tenant's sole expense. Said trade
fixtures, equipment, and furniture shall remain Tenant's property and shall be
removed by Tenant upon
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expiration of the Term, or earlier termination of this Lease. Upon Landlord's
prior written approval, Tenant may make structural alterations and may also
install temporary improvements in the Improvements, provided that such temporary
improvements are installed and are removable without damage to the structure of
the Building. Such temporary improvements shall remain the property of Tenant
and shall be removed by Tenant upon expiration of the Term, or earlier
termination of this Lease, unless Tenant is then in default hereunder in which
event Landlord hereby is granted a security interest in such property of Tenant
to secure the performance of Tenant's obligations hereunder. Tenant sill repair,
at its sole expense, all damage caused by the installation or removal of trade
fixtures, equipment, furniture or temporary improvements. If Tenant fails to
remove the foregoing items on termination of this Lease, Landlord may keep and
use them or remove any or all of them and cause them to be stored or sold in
accordance with applicable law. Landlord may require Tenant to execute on demand
any reasonable security agreement or UCC-I form to evidence said security
interest.
ARTICLE I
UTILITIES AND EASE
I-1. UTILITIES. Tenant shall be solely responsible for and pro pay all charges
for beat, water, gas, electricity, sewage disposal, telephone, and any other
utilities used or consume n the Demised Premises. Landlord shall not be liable
to Tenant for interruption in or curtailment of any utility service, unless
grossly negligent nor shall any such interruption or curtailment constitute a
constructive eviction or grounds for rental abatement in whole or in part
hereunder.
I-2. EASEMENTS. Landlord reserves the right to grant easements on the Parcel,
make boundary adjustments to the Parcel and dedicate for public use portions of
the parcel without Tenant's consent provided that no such grant or dedication
shall interfere with Tenant's use of the Demised Premises or otherwise cause
Tenant to incur cost or expense. From time to time upon Landlord's demand,
Tenant shall execute, acknowledge and deliver to Landlord in accordance with
Landlord's instructions any and all documents or instruments necessary to effect
Tenant's covenants herein.
ARTICLE J
USE OF PREMISES
J-1. GENERAL. The Demised Premises shall be used for the uses consistent with
the Declaration of Covenants and Restrictions and any supplement thereto. Tenant
shall, at Tenant's sole cost and expense, comply with all of the requirements of
the Declaration of Covenants and Restrictions, municipal, county, state, federal
and other applicable governmental authorities, now in force, or which may
hereafter be in force, pertaining to the Demised Premises shall not permit
outside storage, fences, heavy machinery of a pounding or vibrating nature, or
dumping of waste or refuse nor permit any harmful materials to be placed in any
drainage system or sanitary system, and shall secure all necessary permits for
the use of the Demised Premises and shall faithfully observe, in the use of the
Demised Premises, all municipal and county ordinances and state and federal
statutes now in force, or which may hereafter be in force. Tenant shall obtain,
at its expense, any required certificate of occupancy with respect to its use of
the Demised Premises
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within thirty (30) days from the commencement of the Term hereof and shall
deliver a copy thereof to Landlord within said thirty (30) day period. Tenant in
its use and occupancy of the Demised Premises shall not commit waste, nor
overload the walls, ceilings, roof, floors or structure, nor subject the Demised
Premises to -any use which would tend to damage any portion thereof, nor permit
any nuisance therein or thereupon such as offensive sound, light, or odor.
J-2. HAZARDOUS WASTE.
(a) Tenant shall not spill, introduce, discharge or bury any toxic
chemical, substance or contaminant of any kind in, on, or under the Premises or
any portion thereof, or permit the discharge thereof into the sanitary or storm
sewer or water systems serving the Premises, or into any municipal or other
governmental water system or storm and/or sanitary sewer system without first
obtaining the written consent of Landlord (which may be withheld in Landlord's
sole and absolute discretion), and in any event without first obtaining the
written license, permit or other approval of all governmental agencies having
jurisdiction thereover. In any event, Tenant shall employ all safeguards and
procedures necessary or appropriate to protect such systems from contamination.
Tenant shall be solely responsible, at its expense, for the control and proper
handling of any toxic chemicals or other substances used or stored on the
Premises in connection with Tenant's business conducted therein. Tenant shall
undertake, at its expense, any necessary and/or appropriate clean-up process in
connection with any breach of the foregoing covenant, and without limiting
Tenant's other indemnity or insurance obligations under this Lease, Tenant shall
indemnify and hold harmless Landlord from and against all liability, whether
direct, indirect, consequential or otherwise, arising from any incident or
occurrence on or about the Premises attributable in whole or in part to Tenant
and pertaining to tonics. The obligation of Tenant under this paragraph,
including expressly but without limitation the foregoing indemnity, shall
survive the expiration or earlier termination of this Lease, anything to the
contrary contained herein notwithstanding.
(b) For purposes of this Section 1-2 and the indemnification herein
provided, "Hazardous Materials" includes, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq. the Hazardous Materials Transportation Act as
amended (49 U.S.C. Section 1801 et seq. and in the regulations adopted and
publications promulgated pursuant thereto, and any other present or future
federal, state or local and governmental law, ordinance, rule or regulations.
J-3. SIGNS. Any sign placed or erected by Tenant on the Demised Premises, except
in the interior of the Improvements, shall contain only Tenant's name or the
name of any affiliate of Tenant actually occupying the Demised Premises, and no
advertising matter. No such sign shall be erected until Tenant has obtained
Landlord's written approval of the location, material, size, design, and content
thereof and any necessary permit therefor. Tenant shall remove any such sign
upon termination of this Lease and shall return the Demised Premises to their
condition prior to the placement or erection of said sign.
11
ARTICLE K
DAMAGE BY FIRE OR OTHER CASUALTY
K-1. FIRE DAMAGE. It is understood and agreed that if the premises hereby Leased
be damaged or destroyed in whole or in part by fire or other casualty during the
term hereof, the Landlord will repair and restore the same to good tenantable
condition with reasonable dispatch after receipt by Landlord of insurance
proceeds, and that the rent herein provided for shall xxxxx entirely in case the
entire premises are untenantable and pro rata for the portion rendered
untenantable, in case a part only is untenantable, until the same shall be
restored to a tenantable condition; provided, however, that if the Tenant shall
fail to adjust his own insurance or to remove his 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, and provided further that there shall
be no abatement of rental if such fire or other cause damaging or destroying the
lease premises shall result from the negligence or willful act of the Tenant,
his agents or employees, and provided further that if the Tenant shall use any
part of the leased premises for storage during the period of repair a reasonable
charge shall be made therefor against the Tenant, and provided further that in
case the lease premises, or the building of which they are a part, shall be
destroyed to the extent of more than one-half of the value thereof, the Landlord
may, at his option, terminate this Lease forthwith by a written notice to the
Tenant.
ARTICLE L
EMINENT DOMAIN
L-1. TAKING OF BUILDING. In the event, during the term of this Lease,
proceedings shall be instituted under the power of eminent domain which shall
result in the taking of any part of the building on the leased premises, or the
taking of a portion of the parking area if the dumber of spaces is thereby
reduced to such an extent that Tenants business is significantly and adversely
affected, and which shall result in an eviction total or partial of the Tenant
therefrom then at the time of such eviction, this Lease shall be void and the
term above demised shall cease and terminate; and if Tenant shall thereafter
continue possession of the premises or any part thereof, it shall be a lease
from month to month and for no longer term, anything in this instrument to the
contrary notwithstanding. If there is only a partial taking, not including a
portion of the building or reducing parking to the extent described in the
previous sentence, the Landlord shall restore the premises to the extent
necessary to permit Tenant to continue its use of the premises. Provided,
further, that the whole of any award for any portion of the leased premises
taken by reason of said condemnation proceedings shall be solely the property of
and payable to the Landlord; and provided further, that the whole of any award
for removal and relocation expenses in any such condemnation proceedings shall
be the sole property of, and be payable to the Tenant. It is further agreed that
in any such condemnation proceedings the Landlord and Tenant shall each seek its
own award and at its own expense.
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ARTICLE M
BANKRUPTCY OR INSOLVENCY
M-1. CONDITIONS TO THE ASSUMPTION AND ASSIGNMENT OF THIS LEASE UNDER CHAPTER 7
OF THE BANKRUPTCY CODE. In the event that Tenant shall become a Debtor under
Chapter 7 of the Bankruptcy Code, and the Trustee or Tenant shall elect to
assume this Lease for the purpose of assigning the same or otherwise, such
election and assignment may only be made if all of the terms and conditions of
M-3 and M-4, hereof are satisfied. If such Trustee shall fail to elect to assume
this Lease within sixty (60) days after the filing of the Petition, this Lease
shall be deemed to have been rejected. Landlord shall be thereupon immediately
entitled to possession of the Demised Premises without further obligation to
Tenant or the Trustee, and this Lease shall be canceled, but Landlord's right to
be compensated for damages in such liquidation proceedings shall survive.
M-2. CONDITIONS TO THE ASSUMPTION OF THIS LEASE IN BANKRUPTCY PROCEEDINGS. In
the event that a Petition for reorganization or adjustment of debts is filed
concerning Tenant under Chapter 11 or 13 of the Bankruptcy Code, or a proceeding
is filed under Chapter 7 of the Bankruptcy Code and is transferred to Chapter 11
or 13, the Trustee or Tenant, as Debtor-In-Possession, must elect to assume this
Lease within one hundred twenty (120) days from the date of the filing of the
Petition under Chapter 11 or 13, or the Trustee or Debtor-In-Possession shall be
deemed to have rejected this Lease. No election by the Trustee or
Debtor-In-Possession to assume this Lease, whether under Chapter 7, 11 or 13,
shall be effective unless each of the following conditions, which Landlord and
Tenant acknowledge are commercially reasonable in the context of a bankruptcy
proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in
writing.
(1) The Trustee or the Debtor-In-Possession has cured, or has provided
Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption, the
Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption,
the Trustee will cure all nonmonetary defaults under this Lease.
(2) The Trustee or the Debtor-In-Possession has compensated, or has
provided to Landlord adequate assurance (as defined below) that within ten (10)
days from the date of assumption Landlord will be compensated for any pecuniary
loss incurred by Landlord arising from the default of Tenant, the Trustee, or
the Debtor-In-Possession as recited in Landlord's written statement of pecuniary
loss sent to the Trustee or Debtor-In-Possession.
(3) The Trustee or the Debtor-In-Possession has provided Landlord with
adequate assurance of the future performance of each of Tenant's, the Trustee's
or Debtor-In-Possession's obligations under this Lease; provided, however, that:
(a) The Trustee or Debtor-In-Possession shall also deposit
with Landlord, as security for the timely payment of rent, an amount equal to
three (3) months rent; and
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(b) The obligations imposed upon the Trustee or
Debtor-In-Possession shall continue with respect to Tenant or any assignee of
(his Lease after the completion of bankruptcy proceedings.
For the purpose of this Section M-2, Landlord and Tenant acknowledge that, in
the context of a bankruptcy proceeding of Tenant, at a minimum "adequate
assurance" shall mean:
(1) The Trustee or the Debtor-In-Possession has and will continue to
have sufficient Unencumbered assets after the payment of all secured obligations
and administrative expenses to assure Landlord that the Trustee or
Debtor-In-Possession will have sufficient funds to fulfill the obligations of
Tenant under this Lease.
(2) The Bankruptcy Court shall have entered an Order segregating
sufficient cash payable to Landlord and/or the Trustee or Debtor-In-Possession
shall have granted a valid and perfected first lien and security interest and/or
mortgage is property of Tenant, the Trustee or Debtor-In-Possession, acceptable
as to value and kind to Landlord, to secure to Landlord the obligation of the
Trustee or Debtor-In-Possession to cure the monetary and/or nonmonetary defaults
under this Lease within the time periods set forth above.
M-3. LANDLORD'S OPTION TO TERMINATE UPON SUBSEQUENT BANKRUPTCY PROCEEDINGS OF
TENANT. In the event that this Lease is assumed by a Trustee appointed for
Tenant or by Tenant as Debtor-In-Possession under the provisions of Section M-2
hereof and thereafter Tenant is liquidated or files a subsequent Petition for
reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy
Code, then, and in either of such events, Landlord may, at its option, terminate
this (.ease and all rights of Tenant hereunder, by giving Tenant written notice
of its election to so terminate, within thirty (30) days after the occurrence of
either of such events.
M-4. CONDITIONS TO THE ASSIGNMENT OF THIS LEASE IN BANKRUPTCY PROCEEDINGS. If
the Trustee or Debtor-In-Possession has assumed this Lease pursuant to the terms
and provisions of Sections M-1 and M-2 hereof, for the purpose of assigning (or
elects to assign) Tenant's interest under this Lease or the estate created
thereby, to any other person, suck interest or estate may be so assigned only if
Landlord shall acknowledge in writing that the intended assignee has provided
adequate assurance as defined in this Section M-4 of future performance of all
of the terms, covenants and conditions of this Lease to be performed by Tenant.
For purposes of this Section M-1, Landlord and Tenant acknowledge that, in the
context of a bankruptcy proceeding of Tenant, at minimum "adequate assurance of
future performance" shall mean that each of the following conditions have been
satisfied, and Landlord has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by
a Certified Public Accountant which shows a net worth and working capital in
amounts determined to be sufficient by Landlord to assure the future performance
by such assignee of Tenant's obligations under this Lease.
(b) The assignee, if requested by Landlord, shall have obtained
guarantees in form and substance satisfactory to Landlord from one or more
persons who satisfy Landlord's standards of creditworthiness.
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(c) The Landlord has obtained all consents or waivers from any third
party required under any lease, mortgage, financing arrangement or other
agreement by which Landlord is bound to permit Landlord to consent such
assignment.
M-5. USE AND OCCUPANCY CHARGES. When, pursuant to the Bankruptcy Code, the
Trustee or Debtor-In-Possession shall be obligated to pay reasonable use and
occupancy charges for the use of the Demised Premises or any portion thereof,
such charges shall not be less than the minimum rent as defined in this Lease
and other monetary obligations of Tenant for the payment of maintenance, real
estate taxes, insurance and similar charges.
M-6. TENANT'S INTEREST NOT TRANSFERABLE BY VIRTUE OF STATE INSOLVENCY LAW
WITHOUT LANDLORDS CONSENT. Neither Tenant's interest in this Lease, nor any
lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall
pass to any trustee, receiver, assignee for the benefit of creditors, or any
other person or entity, or otherwise by operation of law under the laws of any
state having jurisdiction of the person unless Landlord shall consent to such
transfer in writing. No acceptance by Landlord of rent or any other payments
from any such trustee, receiver, assignee, person or other entity shall be
deemed to have waived nor shall it waive the need to obtain Landlord's consent
or Landlord's right to terminate this Lease for any transfer of Tenant's
interest under this Lease without such consent.
M-7. LANDLORD'S OPTION TO TERMINATE UPON INSOLVENCY OF TENANT OR GUARANTOR UNDER
STATE LAW OR UPON INSOLVENCY OF GUARANTOR UNDER FEDERAL BANKRUPTCY CODE. In the
event the estate of Tenant created hereby shall be taken in execution or by the
process of law, or if any Tenant or Tenant's Guarantor shall be adjudicated
insolvent pursuant to the provisions of any present or future insolvency law
under state law, or if any proceedings are filed by or against the Guarantor
under the Bankruptcy Code, or any similar provisions of any future federal
bankruptcy law, or if a Receiver or Trustee of the property of Tenant, or the
Guarantor shall be appointed under state law by reason of Tenant's or the
Guarantor's insolvency or inability to pay its debts as they become due or
otherwise, or if any assignment shall be made of Tenant's or the Guarantor's
property for the benefit of creditors under state law; then and in such event
Landlord may, at its option, terminate this Lease and all rights of Tenant
hereunder by giving Tenant written notice of the election to so terminate within
thirty (30) days after occurrence of such event.
ARTICLE N
DEFAULT OF TENANT
N-1. RIGHT TO RE-ENTER. In the event of any failure of Tenant to pay any rental
due hereunder within ten (10) days after the same shall be due, or any failure
to perform any other of the terms, conditions or covenants of this Leas* to be
observed or performed by Tenant for more than thirty (30) days after written
notice of such default shall have been mailed to Tenant, or if Tenant or
guarantor shall become bankrupt or insolvent, or file any debtor proceedings, or
take or have taken against Tenant or guarantor to any court pursuant to any
statute either of the United States or any State a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver of trustee
of all or a portion of Tenant's or guarantor's property, or if Tenant or
guarantor makes an assignment for the benefit of creditors, or petitions for or
enters into an
15
arrangement, or if Tenant shall abandon the Demised Premises, or suffer this
Lease to be taken under any writ of execution, then Landlord, besides other
rights or remedies it may have, shall have the immediate right of re-entry and
may remove all persons and property from the Demised Premises and such property
may be removed and stored in a public warehouse or elsewhere at the cost of, and
for the account of Tenant, all without service of notice or resort to legal
process and without being deemed guilty of trespass, or become liable for any
loss or damage which may be occasioned thereby.
N-2. RIGHT TO RELET. Should Landlord elect to re-enter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this Lease or it may from
time to time without terminating this Lease, make such alterations and repairs
as may be necessary in order to relet the Demised Premises, and relet said
premises or any part thereof, for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Landlord, in its sole discretion, may deem
advisable; upon each such reletting all rentals received by Landlord from such
reletting shall be applied, first, to the payment of any indebtedness, other
than rent due hereunder from Tenant, to Landlord; second to the payment of any
costs and expenses of such reletting, including brokerage fees and attorney's
fees and of costs of such alterations and repairs; third to the payment of rent
due and unpaid hereunder, and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be less
than that to be paid during that month by Tenant hereunder, or if Landlord does
not relet the Demised Premises, Tenant shall pay any such rental deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No such re-entry
or taking possession of said premises by Landlord shall be construed as an
election on its part to terminate this Lease, unless a written notice of such
intention be given to Tenant or unless the termination thereof be determined by
a court of competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. Should Landlord at any time terminate this Lease for
any breach, in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including the cost of
recovering the Demised Premises, reasonable attorney fees incidental thereto and
including the work at the time of such termination of the excess, if any, of the
amount of the rent and charges equivalent to the rent reserved in this Lease for
the remainder of the stated term over the then reasonable rental value of the
Demised Premises for the remainder of the stated term, all of which amounts
shall be immediately due and payable by Tenant hereunder.
N-3. CURING OF TENANT'S DEFAULT BY LANDLORD. Notwithstanding anything herein
contained to the contrary, if Tenant shall be in default in the performance of
any of the terms or provisions of this Lease and if Landlord shall give to
Tenant notice in writing of such default, and if Tenant shall fail to cure such
default within the time provided under Section N-1 hereof, or immediately, if
such default requires emergency action, Landlord may, in addition to its other
legal and equitable remedies, cure such default for the account of and at the
cost and expense of Tenant and the sums so expended by Landlord shall be deemed
to be additional rent and shall be paid by Tenant on the day when rent shall
next become due and payable.
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ARTICLE O
ASSIGNMENT AND SUBLETTING
O-1. PROHIBITION. Tenant shall not assign, mortgage, pledge or otherwise
transfer this Lease, in whole or in part, nor sublet or permit occupancy by any
party other than Tenant of all or any part of the Demised Premises, without the
prior written consent of Landlord in each instance. Any purported assignment or
subletting contrary to the provisions hereof without consent shall be void. The
consent by Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or
subletting. As Additional Rent hereunder, Tenant shall reimburse landlord for
reasonable legal and other expenses incurred by Landlord in connection with any
request by Tenant for consent to assignment or subletting.
O-2. LANDLORD'S OPTION.
(a) SUBLESSEE OR ASSIGNEE DATA. In connection with any proposed
assignment or sublease, Tenant shall submit to Landlord in writing (i) the name
of the proposed assignee or sublessee; (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require; and (iii) all of
the terms and conditions upon which the proposed assignment or subletting is to
he made. Landlord shall have an option to cancel and terminate this Lease, if
the request is to assign the Lease or to sublet all of the Demised Premises; or,
if the request is to sublet a portion of the Demised Premises only to cancel and
terminate this Lease with respect to such portion. Landlord may exercise said
option in writing within thirty (30) days after its receipt from Tenant of such
request, and in each case such cancellation or termination shall occur as of the
date set forth in Landlord's notice of exercise of such option, which shall be
not less than sixty (60) nor more than one hundred twenty (120) days following
the giving of such notice.
(b) CANCELLATION. If Landlord shall exercise its option, Tenant shall
surrender possession of the entire Demised Premises, or the portion thereof
which is the subject of the option, as the case may be, on the date set forth in
such notice in accordance with the provisions of this Lease relating to
surrender of the Demised Premises at the expiration of the Term. If this Lease
is canceled as to a portion of the Demised Premises only, the Fixed Rate after
the date of cancellation than be reduced as reasonably determined by Landlord.
(c) NONCANCELLATION. If Landlord does not exercise its option to cancel
this Lease pursuant to the foregoing provisions, Landlord may withhold its
consent to such assignment or subletting, as long as the withholding is not done
unreasonably.
(d) ASSUMPTION. No assignment shall be binding upon Landlord, any
ground lessor or any mortgagee, unless Tenant shall deliver to Landlord an
assignment in recordable form which contains an assumption by the assignee, but
the failure or refusal of the assignee to execute such instrument or assumption
shall not release or discharge assignee from liability as Tenant hereunder,
provided that the terms and provisions of the assignment or subletting shall
specifically make applicable to the assignee or sublessee all of the provisions
of this Lease.
(e) INDUCEMENT. Tenant understands and acknowledges that the option to
terminate this Lease rather than approve the assignment thereof, or the
subletting of all or a portion of the
17
Demised Premises, as provided in this Section 0-2, is a material inducement for
Landlord's agreeing to lease the Demised Premises to Tenant upon the terms and
conditions herein set forth.
O-3. EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION. If for any sublease or
assignment, Tenant receives rent or other consideration (to include cash payment
for assignment, etc.), either initially or over the term of the sublease or
assignment, in excess of the Rent called for hereunder, or in the case of the
sublease of a portion of the Demised Premises, in excess of such Rent fairly
allocable to such portion, after appropriate adjustments to assure that all
other payments called for hereunder are appropriately taken into account, Tenant
shall pay to Landlord, as Additional Rent hereunder, the excess of such payment
of rent or other consideration received by Tenant promptly after its receipt.
O-4. SCOPE. The prohibition against assigning or subletting contained in this
Article 0 shall be construed to include a prohibition against any assignment or
subletting by operation of law. If this Lease be assigned, or if the underlying
beneficial interest of Tenant be transferred, or if the Demised Premises or any
part thereof be sublet or occupied by anybody other than Tenant, Landlord may
collect rent from the assignee, subtenant or occupant and apply the net amount
collected to the Rent herein reserved and apportion any excess rent so collected
in accordance with the terms of Section 0-3 hereof, but rip such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as tenant, or a release
of Tenant from the further performance by Tenant of covenants on the part of
Tenant herein contained. No assignment of subletting shall affect the continuing
primary liability of Tenant (which, following assignment, shall be joint and
several with the assignee), and Tenant shall not be released from performing any
of the terms, covenants and conditions of this Lease.
O-5. WAIVER. Notwithstanding any assignment or sublease, or any indulgences,
waivers or extensions of time granted by Landlord to any assignee or sublessee,
or failure by Landlord to take action against any assignee or sublessee, Tenant
waives notice of any default of any assignee of sublessee and agrees that
Landlord may, at its option, proceed against Tenant without having taken action
against or joined such assignee or sublessee, except that Tenant shall have the
benefit of any indulgences, waivers and extensions of time granted to any suck
assignee or sublessee.
O-6. RELEASE. Whenever Landlord conveys its interest in the Parcel, Landlord
shall be automatically released from the further performance of covenants on the
part of Landlord herein contained, and from any and all further liability,
obligations, costs and expenses, demands, causes of action, claims or judgments
arising from or growing out of, or connected with this Lease after the effective
date of said release. The effective date of said release shall be the date the
assignee executes an assumption of such an assignment whereby the assignee
expressly agrees to assume all Landlord's obligations, duties. responsibilities
and liabilities with respect to this Lease. If requested, Tenant shall execute a
form of release and such other documentation as may be required to further
affect the provision of this Section.
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ARTICLE P
OFFSET STATEMENT, ATTORNMENT AND SUBORDINATION
P-1. OFFSET STATEMENT. Within ten (10) days after request therefor by Landlord,
or, if on any sale, assignment or hypothecation by Landlord of its interest in
the Parcel or the Building, an offset statement shall be required from Tenant.
Tenant shall deliver. in recordable form, a certificate to any proposed
mortgagee or purchaser or to Landlord, certifying (if such be the case) that
this Lease is in full force and effect, the date of Tenant's most recent payment
of Rent, and that there are no defenses or offsets outstanding, or stating those
claimed by Tenant. Tenant's failure to deliver said statement in time shall be
conclusive upon Tenant that: (a) this Lease is in full force and effect, without
modification accept as may be represented by Landlord, (b) there are no uncured
defaults in Landlord's performance and Tenant has no right of offset,
counterclaim or deduction against Rent hereunder, and (c) no more than one
Rental Period's Fixed Rent has been paid in advance.
P-2. ATTORNMENT. Tenant shall, in the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage or deed of trust made by the Landlord, its successors or assigns,
encumbering the Demised Premises, or any part thereof, or in the event of
termination of the ground lease, if any, and if so requested, attorn to the
purchaser upon such foreclosure or sale or upon any grant of a deed in lieu of
foreclosure and recognize such purchaser as the Landlord under this Lease.
P-3. SUBORDINATION. The rights of Tenant hereunder shall be at the election of
any mortgagee encumbering the Demised Premises, subject and subordinate to the
lien of any mortgage or mortgages, or the lien resulting from any other method
of financing or refinancing now or hereafter in force against the Parcel, and to
all advances made or hereafter to be made upon the security thereof; provided,
however, that, notwithstanding such subordination, so long as the Tent herein is
not in default under any of the terms, covenants and conditions of this Lease,
neither this Lease nor any of the rights of Tenant hereunder, upon Tenant's
covenanting that Tenant is not in default hereunder, shall be terminated or
subject to termination by any trustee's sale, by any action to enforce the
security, or by any proceeding or action in foreclosure. If requested, Tenant
agrees to execute whatever documentation may be required to further affect the
provisions of this Section P-3, and hereby irrevocably appoints Landlord the
attorney's fact of Tenant to execute in compliance with Section O-3 and deliver
any such instrument or instruments for and in the name of the Tenant.
ARTICLE Q
NOTICES
All notices required to be given hereunder shall be in writing and mailed
postage prepaid by certified or registered mail. return receipt requested, or by
personal delivery, to the addresses indicated in Subsection A- I (M) and A- I
(N), or at such other place or places as either Landlord or Tenant may, from
time to time, respectively, designate m a written notice given to the other.
Notices shall be deemed sufficiently served four (4) days after the date of
mailing thereof.
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ARTICLE R
MISCELLANEOUS
R-1. WAIVER. No waiver of any default or breach of any covenant by either party
hereunder shall be implied from any omission by either party to take action on
account of such default if such default persists or is repeated, and no express
waiver shall affect any default other than the default specified in the waiver,
and then said waiver shall be operative only for the time and to the extent
therein stated. Waivers of any covenant, term or condition. The consent or
approval by either party to or of any act by either party requiring further
consent or approval shall not be deemed to waive or render unnecessary their
consent or approval to or of any subsequent similar acts.
R-2. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than the Rent payment herein stipulated shall be deemed to be
other than on account of the Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed in
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 provided in this Lease.
R-3. INDIVIDUAL LIABILITY. Anything in this Lease to the contrary
notwithstanding, Tenant agrees that the obligations of Landlord under this Lease
do not constitute personal obligations of the individual partners, directors,
officers, or shareholders of Landlord. and Tenant shall look solely to the real
estate that is the subject of this Lease subject to prior rights of mortgagee
and to no other assets of the Landlord for satisfaction of any liability in
respect of this Lease and will not seek recourse against the individual
partners, directors, officers or shareholders of Landlord or any of their
personal assets for such satisfaction.
R-4. ENTIRE AGREEMENT. This Lease sets forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Demised Premises, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them other than'
as are herein set forth. Except, as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord of Tenant unless reduced to writing and signed by them.
R-5. TIME. Time is of the essence hereof.
R-6. SHORT FORM LEASE. Concurrently herewith the parties may, at the option of
either party, execute a short form of Lease for recording. This Lease and any
such short form of Lease shall be construed together as one instrument. Neither
Landlord nor Tenant shall record this Lease nor permit the same to be recorded
without the written consent of the other, but shall have the right to record any
such short form.
R-7. PROFESSIONAL FEES. Tenant shall reimburse Landlord, upon demand, for any
costs or expenses incurred by Landlord in connection with any breach or default
of Tenant under this Lease, whether or not suit is commenced or judgment
entered. Such costs shall include professional fees such as accountants' fees,
appraisers' fees and attorneys' fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, if
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any action for breach of or to enforce the provisions of this Lease is
commenced, the court in such action shall award to the party in whose favor a
judgment is entered, the prevailing party's actual professional fees such as
accountants' fees, appraisers' fees and attorneys' fees and costs. Such
professional fees and costs shall be paid by the losing party in such action.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability incurred by Landlord if Landlord becomes
or is made a party to any claim or action (a) instituted by Tenant, or by any
third party against Tenant, or by or against any person holding any interest
under or using the Demised Premises by license of or agreement with Tenant; (b)
for foreclosure of any lien for labor or material furnished to or for Tenant or
such other person; (c) otherwise arising out of or resulting from any act or
transaction of Tenant or such other person; or (d) necessary to protect
Landlord's interest under this Lease in a bankruptcy proceedings under Title 11
of the United States Code, as amended. Tenant shall defend Landlord against any
suck claim or action at Tenant's expense with counsel reasonably acceptable to
Landlord or, at Landlord's election, Tenant shall reimburse Landlord for
Landlord's actual professional fees such as accountants' fees, appraisers' fees
and attorneys' fees or costs incurred by Landlord in any such claim or action.
R-8. CAPTIONS AND SECTION NUMBERS. The caption, section numbers, article numbers
and table of contents appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such sections or articles of this Lease nor in any way affect this
Lease.
R-9. SEVERABILITY. If any term, covenant, condition or provision of this Lease,
or the application thereof to any person or circumstance, shall to any extent be
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, covenants, conditions or provisions of this Lease,
or the application thereof to any person or circumstance, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby.
R-10. APPLICABLE LAW. This Lease, and the rights and obligations of the parties
hereto, shall be construed and enforced in accordance with the laws of the state
in which tile Demised Premises are located.
R-11. EXAMINATION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option to Lease, and
it is not effective as a Lease or otherwise until execution and delivery by both
Landlord and Tenant.
R-12. FINANCIAL STATEMENTS. At any time during the term of the Lease, Tenant
shall, upon ten (10) days prior written notice from Landlord, provide Landlord,
Landlord's lenders or-any prospective purchaser of tile Building or ]Parcel with
a current financial and financial statements for each of the two years prior to
the current financial statement year. Such statements shall be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of tenant, shall be audited by an independent certified public
accountant.
R-13. SECURITY MEASURES. Tenant acknowledges that Rent payable to Landlord does
not include the cost of guard service or other security measures, and the
Landlord has no obligation
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to provide such services or measures. Tenant assumes all responsibility for the
security of the Demised Premises and of Tenant, its agents or invitees.
R-14. LENDER'S REQUIREMENTS. Tenant hereby agrees to make any reasonable
revisions to this Lease which may be required in good faith by a bona fide
construction, interim or permanent lender in connection with the financing of
all or any portion of the Building or the Parcel, provided that no such revision
shall increase rental due and payable by Tenant under this Lease.
R-15. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security Deposit
set forth in Section A-1 (i) above as security for Tenant's faithful performance
of Tenant's obligations hereunder. If Tenant fails to pay Rent or other charges
due hereunder. or otherwise defaults with respect to any provision of this
Lease. Landlord may use, apply or retain all or any portion of said Security
Deposit for the payment of any Rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated by reason of
Tenant's default or to compensate Landlord for any loss or damage which Landlord
may suffer thereby. If Landlord so uses or applies all or any portion of said
Security Deposit, Tenant shall, within ten (10) days after written demand
therefore, deposit cash with Landlord in an amount sufficient to restore said
Security Deposit to the full amount stated m Section A-1 (i) hereinabove. The
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep said Security Deposit separate from its general
accounts. If Tenant performs all of Tenant's obligations hereunder, said
Security Deposit, or so much thereof as has not theretofore been applied by
Landlord, shall be returned, without payment of interest or other increment for
its use, to Tenant (or at Landlord's option to the last assignee of any of
Tenant's interest hereunder) at the expiration of the Term hereof, and after
Tenant has vacated the Demised Premises. If the Fixed Rent shall increase, for
any reason, and at any time during the Term of this Lease, Tenant shall
thereupon deposit with Landlord an addition to the Security Deposit so that the
total Security Deposit held by Landlord shall at all times bear the same
proportion to the current Fixed Rent as the original Security Deposit bears to
the original Fixed Rent.
R-16. ADMINISTRATIVE CHARGES. Tenant shall pay to Landlord an overall
administrative charge of ten percent (10 %) of any charge which Tenant is
obligated to pay under this Lease and which Tenant fails to pay after notice
from Landlord and which Landlord pays on behalf of Tenant and for which Landlord
subsequently bills Tenant.
R-17. GUARANTORS. In consideration of the letting of the Premises in this Lease
to Tenant and the payment of One ($1.00) Dollar, the receipt and sufficiency of
which is hereby acknowledged, the undersigned guarantor(s) do hereby jointly and
severally become surety for the punctual payment of the rent and performance of
the covenants in said instrument mentioned, to be paid and performed by the
Tenant therein; and if any default shall at any time be made therein, the
guarantor(s) do hereby jointly and severally promise and agree to pay unto the
Landlord the said rent and arrears thereof that may be due, and fully satisfy
the condition of said instrument, and all damages that may occur be reason of
the nonfulfillment thereof, without requiring notice or proof of the demand
being made. The Landlord shall not be held to strict construction adopted in
eases of principal and surety. The surety shall not have the right to claim
discharge, or plead by way of defense any extension of time given by the
Landlord, failure of the Landlord to give notice of default, receipt by the
Landlord of securities from the Tenant, failure of the Landlord to pursue the
Tenant and his property with due diligence or to apply other remedies and other
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securities which may possibly be available to the Landlord by any direct
release, unless it be in writing duly authorized and executed.
R-18. LATE PAYMENTS. If Tenant shall fail to pay before tenth (10th) day after
such Minimum Rent or Additional Rent is due and payable, Tenant agrees to pay
each day after such tenth (10th) day that the rent remains unpaid a charge (the
"Late Charge") which shall be the greater of $50.00 per day or 5% of the amount
of such unpaid rent divided by 30. The Late Charge shall accrue daily until the
unpaid rent (including the Late Charge), is paid. Tenant agrees that such
amounts are not a penalty, but are a reasonable amount to reimburse Landlord for
the loss of the use of the funds and the additional administrative costs
resulting from late payments.
R-19. HOLDING OVER. If Tenant retains possession of the Demised Premises or any
part thereof after the termination of this Lease, Tenant shall pay as rent a sum
equal to 150% of the amount, including Minimum Rent, additional rent and any
other charges hereunder, payable for the month preceding such holding over
computed on a daily basis for each day the Tenant remains in possession. In
addition thereto, Tenant shall be liable for and shall pay to Landlord, all
damages, consequential as well as direct, sustained by reason of Tenant's
holding over period. In the event that Tenant remains in possession without
executing a new lease, it will be deemed to be occupying the Demised Premises as
a Tenant from month-to-month, subject to all the provisions of this Lease to the
extent that they can be applicable to a month-to-month tenancy and except as
otherwise provided in this section.
R-20. REPRESENTATIONS BY LANDLORD. Except as expressly stated in this Lease,
Landlord makes no representations with respect to the Demised Premises or the
building and by taking possession of the Demised Premises, Tenant will be deemed
to have accepted the Demised Premises in the condition then existing. Neither
Landlord nor Landlord's agents have made any representations or promises with
respect to the physical condition of the building, the land, the Demised
Premises, the permissible uses of the Demised Premises, the rent, lease,
expenses of operation or any other matter or thing affecting or related to the
Demised Premises except as herein expressly set forth, and no rights, easements
or licenses are acquired by Tenant by implication or otherwise, except as
expressly set forth in the provisions of this Lease.
R-21. Landlord hereby discloses to Tenant that the managing partner of Landlord
is a licensed real estate broker in the State of Michigan.
R-22. AUTHORITY. If Tenant is a corporation, trust, or general or limited
partnership, Tenant shall, prior to the commencement of the Term of the Lease
but in no event later than thirty (30) days after execution of this Lease
deliver to Landlord satisfactory evidence of the authority of each individual
executing this Lease on behalf of such entity.
R-23. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the right to
enter the Demised Premises at reasonable times with reasonable advance notice
for the purpose of inspecting the same, showing the same to prospective
purchasers or lenders and making such alterations, repairs, improvements or
additions to the Demised Premises as Landlord may deem reasonably necessary a
desirable. Landlord may at any time during the last one hundred twenty (120)
days of the Term of this Lease place on or about the Demised Premises any
ordinary "For Sale" or "For Lease" signs all without rebate of rent or liability
to Tenant.
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ARTICLE S
SUCCESSORS BOUND
This Lease and each of its covenants and conditions shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
successors and legal representatives and their respective assigns, subject to
the provisions hereof. Whenever in this Lease a reference is made to the
Landlord, such reference shall be deemed to refer to the person in whom the
interest of the Landlord shall be vested, and Landlord shall have no obligation
hereunder as to any claim arising after the transfer of its interest in the
Parcel. Any successor or assignee of the Tenant who accepts an assignment of or
the benefit of this Lease and enters into possession or enjoyment thereunder
shall thereby assume and agree to perform and be bound by the covenants and
conditions thereof. Nothing herein contained shall be deemed in any manner to
give a right of assignment to Tenant without the written consent of Landlord.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
above written.
LANDLORD:
___________________________ XXXXXX XXXX INVESTMENTS, a Michigan
(Date of Execution) Co-Partnership
___________________________ By: _____________________________
Witness Xxxxx X. Xxxxx
Its: Managing Partner
TENANT:
___________________________ ASSET ACCEPTANCE CORPORATION, a
(Date of Execution) Michigan Corporation
___________________________ By: _____________________________
Witness
Its: President
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GUARANTORS:
___________________________ XXX ACCEPTANCE CORPORATION, a Michigan
(Date of Execution) Corporation
___________________________ By: _______________________________
Witness
Its: _______________________________
FINANCIAL CREDIT CORPORATION, a Michigan
Corporation
By: _______________________________
Its: _______________________________
CITY FINANCIAL CORPORATION, a Michigan
Corporation
By: _______________________________
Its: _______________________________
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RIDER ATTACHED HERETO and made a part hereof of a Lease dated June 1, 1999
between XXXXXX XXXX ASSOCIATES, a Michigan Co-Partnership, as Landlord, and
ASSET ACCEPTANCE CORPORATION, a Michigan Corporation, as Tenant covering the
premises commonly known as 0000 Xxxxxx Xx., Xxxxxx, Xxxxxxxx.
1. OPTION TO RENEW:
So long as Tenant is not in default of the terms and conditions of the Lease
herein, Tenant shall have the option of renewing this Lease for an additional
five (5) years commencing at the expiration of the original lease term on the
same terms and conditions as provided herein, save and except that the Rent for
the renewal term shall be as follows:
Months 61-72 $18,520.00
73-84 $18,990.00
85-96 $19,460.00
97-108 $19,930.00
109-120 $20,400.00
Tenant shall notify Landlord in writing one hundred eighty (180) days prior to
the expiration of the original term herein of its intent to renew the Lease.
2. Whenever Landlord's consent is required, Landlord agrees to not unreasonably
withhold such consent.
LANDLORD: WITNESS:
XXXXXX XXXX INVESTMENTS, a
Michigan Co-Partnership
By: ___________________________
Xxxxx X. Xxxxx _____________________________
Its: Managing Partner
TENANT:
XXXXXX XXXX INVESTMENTS, a
Michigan Co-Partnership
By: ___________________________
_____________________________
Its: ___________________________
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