EXHIBIT 10.3
ASSIGNMENT, ASSUMPTION AGREEMENT AND RELEASE
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(Dearborn, MI Property)
THIS LEASE ASSIGNMENT, ASSUMPTION AGREEMENT AND RELEASE (this "Assignment")
is made as of the 29th day of July, 1994, between GTE Control Devices
Incorporated, a Delaware corporation ("Assignor"), and CONTROL DEVICES, INC. an
Indiana corporation ("Assignee"), pursuant to the Asset Purchase Agreement dated
as of July 6, 1994 by and among Assignor, Assignee, GTE Products of Connecticut
Corporation and Dominican Overseas Trading Company (the "Agreement"). Terms
used herein and not otherwise defined herein shall have the meanings assigned to
them in the Agreement.
W I T N E S S E T H:
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WHEREAS, pursuant to the Agreement, Assignor has agreed to assign, transfer
and convey, and Assignee has agreed to acquire and accept, certain assets,
properties, rights, privileges, claims and contracts described in the Agreement
including, without limitation, the interest of Assignor under the Lease attached
hereto as Exhibit 1 (the "Leasehold");
WHEREAS, prior to the transfer of the assets pursuant to the Agreement (the
"Closing"), certain consents and regulatory approvals must be obtained and other
requirements must be satisfied;
WHEREAS, assignee has agreed under the Agreement to assume and discharge
all obligations of Assignor under the Lease which arise from and after the
Closing.
NOW, THEREFORE, with reference to the foregoing recitals which are
incorporated herein by this reference and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledge, the parties hereto
agree as follows:
1. Assignor does hereby assign, grant, transfer and convey to Assignee all
of its right, title and interest as tenant under the Lease demising the real
property described therein (the "Real Property").
2. Effective as of the date hereof, Assignee accepts the foregoing
assignment and assumes and agrees to perform and to pay or discharge any and all
obligations of the tenant under the Lease arising from and after the Closing.
3. Assignor hereby agrees not to further assign, grant, transfer, sell,
convey, mortgage, pledge or otherwise encumber all or any portion of its
interest in the Lease. Any attempted further assignment, grant, transfer, sale,
conveyance, mortgage, pledge or other encumbrance, whether made voluntarily or
otherwise, shall be void and of no effect.
4. Assignor represents to Assignee that Exhibit 1 constitutes a true and
complete copy of the Lease including all amendments, modifications and
supplements thereto.
5. Assignee hereby releases Assignor from any further obligation under the
terms of the Lease arising on or after the date hereof.
6. The persons executing this Assignment hereby represent and warrant that
they are duly authorized to execute and deliver this Assignment on behalf of
Assignor or Assignee, as the case may be.
7. This Assignment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreements to be executed as of the date first above written.
GTE CONTROL DEVICES INCORPORATED
By: /s/ Marianne Drost
Name: Marianne Drost
Title: Secretary
CONTROL DEVICES, INC.
By: /s/John M. Ramey
Name: John M. Ramey
Title: Vice President
EXHIBIT 1
TO
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
(DEARBORN, MI PROPERTY)
LEASE DATED DECEMBER 1, 1993
BETWEEN
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
AND
GTE CONTROL DEVICES INCORPORATED
RELATING TO
DEARBORN, MI PROPERTY
Exhibit 1-1
LEASE
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
("Landlord")
AND
GTE CONTROL DEVICES INCORPORATED
("Tenant")
ARTICLE I
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SUMMARY OF BASIC LEASE PROVISIONS
1.1 BASIC DATA
ARTICLE II
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DESCRIPTION OF PREMISES AND
APPURTENANT RIGHTS; NET RENTABLE AREA
2.1 LOCATION OF PREMISES
2.2 APPURTENANT RIGHTS AND RESERVATIONS 2
ARTICLE III
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TERMS OF LEASE; CONSTRUCTION
3.1 COMMENCEMENT DATE 2
3.2 INITIAL CONSTRUCTIONS 3
3.3 PREPARATION OF PREMISES FOR OCCUPANCY 3
3.4 TENANT'S OCCUPANCY 4
3.5 PERFORMANCE OF THE LANDLORD'S WORK 4
3.6 TENANT PAYMENTS OF CONSTRUCTION COSTS 4
ARTICLE IV
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TERM
4.1 EXTENSION OF TERM 4
ARTICLE V
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RENT
5.1 RENT 4
ARTICLE VI
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USE OF PREMISES
6.1 PERMITTED USE 5
6.2 ALTERATIONS 6a
ARTICLE VII
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ASSIGNMENT AND SUBLETTING
7.1 PROHIBITION 7
7.2 ACCEPTANCE OF RENT FROM TRANSFEREE 8
ARTICLE VIII
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RESPONSIBILITY FOR REPAIRS
8.1 REPAIRS 8
ARTICLE IX
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SERVICES TO BE FURNISHED BY LANDLORD
9.1 CLEANING SERVICES 9
9.2 OTHER SERVICES 9
9.3 ADDITIONAL SERVICES 9
9.4 CAUSES BEYOND CONTROL OF THE LANDLORD 10
ARTICLE X
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REAL ESTATE AND OTHER TAXES; OTHER EXPENSES
10.1 LANDLORD TO PAY REAL ESTATE TAXES 10
ARTICLE XI
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ELECTRICITY COSTS
11.1 TENANT'S SHARE OF ELECTRICITY COSTS 10
ARTICLE XII
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INDEMNITY
12.1 THE TENANT'S INDEMNITY 11
12.2 THE TENANT'S RISK 11
12.3 INJURY CAUSED BY THIRD PARTIES 11
ARTICLE XIII
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THE LANDLORD'S ACCESS TO PREMISES
13.1 THE LANDLORD'S RIGHT OF ACCESS 12
13.2 ACCESS DURING THE LAST MONTH OF TERM 12
ARTICLE XIV
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CASUALTY
14.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND PARTIAL DAMAGE 12
14.2 PARTIAL DAMAGE TO THE BUILDING 12
14.3 SUBSTANTIAL DAMAGE TO THE BUILDING 12
14.4 ABATEMENT OF RENT 13
14.5 MISCELLANEOUS 13
ARTICLE XV
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EMINENT DOMAIN
15.1 RIGHTS OF TERMINATION FOR TAKING 13
15.2 PAYMENT OF AWARD 14
15.3 ABATEMENT OF RENT 14
15.4 MISCELLANEOUS 14
ARTICLE XVI
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INSURANCE
16.1 PUBLIC LIABILITY AND PROPERTY INSURANCE 14
16.2 NON-SUBROGATION 15
16.3 EXTRA HAZARDOUS USE 15
ARTICLE XVII
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DEFAULT
17.1 TENANT'S DEFAULT 16
17.2 THE LANDLORD'S DEFAULT 17
ARTICLE XVIII
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MISCELLANEOUS PROVISIONS
18.1 WAIVER 18
18.2 COVENANT OF QUIET ENJOYMENT 18
18.3 NO PERSONAL LIABILITY OF THE LANDLORD 18
18.4 NOTICE TO MORTGAGEE AND GROUND LESSOR;
OPPORTUNITY TO CURE 18
18.5 NO BROKERAGE 19
18.6 INVALIDITY OF PARTICULAR PROVISIONS 19
18.7 PROVISIONS BINDING, ETC. 19
18.8 RECORDING 19
18.9 NOTICES 19
18.10 WHEN LEASE BECOMES BINDING 20
18.11 PARAGRAPH HEADINGS 20
18.12 RIGHTS OF MORTGAGEE 20
18.13 STATUS REPORT; MODIFICATION 21
18.14 SECURITY DEPOSIT 21
18.15 SELF-HELP 22
18.16 HOLDING OVER 22
18.17 CERTIFICATE 22
ENUMERATION OF EXHIBITS
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Exhibit A: Plan showing the Premises.
Exhibit B: Intentionally Deleted.
Exhibit C: Intentionally Deleted.
Exhibit D: Cleaning Schedule.
Exhibit E: Other Services of the Landlord.
Exhibit F: Description of Lot.
Exhibit G: Rules and Regulations
Exhibit H: Certificate
LEASE
This instrument is an Indenture of Lease between John Hancock Mutual Life
Insurance Company (the "Landlord") and GTE Control Devices Incorporated, a
Delaware corporation (the "Tenant").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
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SUMMARY OF BASIC LEASE PROVISIONS
1.1 BASIC DATA
Date: December 1, 1993
Landlord: John Hancock Mutual Life Insurance Company
Present Mailing Address of
Landlord: John Hancock Place
P.O. Box 111
Boston, Massachusetts 02117
Tenant: GTE Control Devices Incorporated
Present Mailing Address of
Tenant: Route 25
Standish, Maine 04084
Leased Premises: Premises located on the third floor, west wing,
Commerce Park South
Dearborn, Michigan, as shown on Exhibit A
Square Footage: 1,320 rentable square feet.
1,200 usable square feet
Lease Term: 36 calendar months
Commencement Date: December 1, 1993
Rent: At the rate of $2,145.00 per calendar month for
Year 1; $2,172.50 per calendar month for Year
2; and $2,200.00 per calendar month for Year 3.
Tenant's Proportionate Share: .0096 (based upon the ratio of the rentable
square footage of Tenant's Premises to the
rentable square footage of the third floor,
west wing of building).
Security Deposit: $2,145.00
Tenant Improvements Submission
Date: N/A
Time Estimated for Completion of
Tenant's Work on Premises: N/A
Scheduled Term Commencement
Date: December 1, 1993
ARTICLE II
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DESCRIPTION OF PREMISES AND
APPURTENANT RIGHTS; NET RENTABLE AREA
2.1 LOCATION OF PREMISES
The Landlord hereby leases to the Tenant, and the Tenant hereby accepts
from the Landlord, the premises (the "Premises") identified on Exhibit A,
attached hereto and incorporated herein by reference, in the Landlord's building
(the "Building") located on land owned by the Landlord (the "Lot") more
particularly described in Exhibit F, attached hereto and incorporated herein by
reference, known as and numbered 3200 Greenfield, Dearborn, Michigan. Nothing
in Exhibit A shall be treated as a representation that the Premises shall be
precisely of the dimensions or shapes as shown diagrammatically, rather than
precisely, on Exhibit A, the layout of the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to the Premises, rights to use in common
with others entitled thereto: (a) the common facilities included in the Building
or Lot, including common walkways, driveways, lobbies, hallways, ramps,
stairways and elevators; (b) the parking facility (including the visitor's
parking area and parking spaces reserved for the handicapped), at locations
which may from time to time be designated by Landlord, and only between the
hours of 7:00 AM and 7:00 PM, Monday through Friday, and 8:00 AM and 1:00 PM
Saturdays (legal holidays excepted); (c) the pipes, ducts, conduits, wires and
appurtenant equipment serving the Premises; and (d) if the Premises include less
than the entire rentable area of any floor, the common toilets, if any, in the
central core area of such floor. Such rights shall always be subject to the
Rules and Regulations set forth in Exhibit G attached hereto and incorporated
herein by reference, as the same
may be amended by the Landlord from time to time and such other reasonable rules
and regulations from time to time established by the Landlord by suitable
notice, and to the right of the Landlord to designate and change from time to
time areas and facilities so to be used.
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibit A, except the inner surfaces
thereof and the perimeter doors and windows. The Tenant agrees that the Landlord
shall have the right to place in the Premises (but in such manner as not
unreasonably to interfere with the Tenant's use of the Premises) utility lines,
telecommunication lines, shafts, pipes and the like, for the use and benefit of
Landlord and other tenants in the Building, and to replace and maintain and
repair such lines, shafts, pipes and the like, in, over and upon the Premises.
Such lines, shafts, pipes and the like, shall not be deemed part of the Premises
under this Lease.
ARTICLE III
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TERMS OF LEASE; CONSTRUCTION
3.1 COMMENCEMENT DATE
The Term of this Lease shall be the period specified in Section 1.1 hereof
as the "Lease Term." If Section 1.1 provides for a fixed Commencement Date,
then the Commencement Date of the term hereof shall be such date. Otherwise,
the term of this Lease shall commence on, and the Commencement Date shall be,
the first to occur of:
(a) the date on which the Premises shall be deemed ready for occupancy, as
defined in Section 3.3 below; or
(b) the date upon which Tenant commences beneficial use of the Premises (as
distinguished from the conduct of construction work to be performed by Tenant in
the Premises incident to preparing the Premises for Tenant's own use).
Tenant shall, in all events, be treated as having commenced beneficial use
of the Premises when it begins to move in the Premises furniture and equipment
for its regular business operations.
Promptly after the Commencement Date has been determined, Landlord and
Tenant agree to join with each other in the execution of a written declaration
in which the Commencement Date and specified term of this Lease shall be stated.
3.2 INITIAL CONSTRUCTIONS
The Tenant and Landlord have agreed upon drawings and specifications for
the construction of Tenant's leasehold improvements, including the locations
desired for partitions, doors, electric switches and outlets, lighting fixtures,
and specifications for any flooring, ceiling and wall coverings,
electric, plumbing, heating, air-conditioning and ventilating systems so far as
the same are to be provided. Architectural and engineering services rendered in
the preparation of such construction drawings and specifications and any changes
therein shall be performed by Landlord's architect and engineer. Simultaneous
with the execution of the Lease, the Landlord and Tenant shall join in the
execution of a letter substantially in the form attached hereto as Exhibit C
authorizing the commencement of construction in accordance therewith. Landlord
shall provide a turnkey suite based on a mutually agreeable floor plan. All
such work shall be performed by Landlord's general contractor. Landlord will
not approve: (a) any alterations or additions which will require unusual expense
to readapt the Premises to normal office use on lease termination or which will
increase the cost of construction, insurance or taxes on the Building or of
Landlord's services called for by Article VIII unless Tenant first gives
assurances acceptable to Landlord for payment of such increased cost and that
such readaptation will be made prior to such termination with expense to
Landlord; or (b) any alterations or additions which will delay completion of the
Premises or the Building. All changes and additions shall be part of the
Building, except such items as by writing at the time of approval the parties
agree shall be removed by Tenant on termination of this lease, or Landlord
agrees that Tenant may then elect to remove or leave.
3.3 PREPARATION OF PREMISES FOR OCCUPANCY
Landlord agrees to use reasonable efforts to have the Premises ready for
occupancy on or before the Scheduled Term Commencement Date, which shall,
however, be extended for a period equal to that of any delays caused by the
action or inaction of the Tenant, or delays due to governmental regulations,
scarcity of or inability to obtain labor or materials, strikes, labor
difficulties, casualty or other causes reasonably beyond Landlord's control.
The Premises shall be deemed ready for occupancy on the date on which (i)
the Premises, together with sufficient facilities for reasonable access and
service thereto, have been substantially completed, except for items of work and
mechanical adjustment of equipment and fixtures which (x) are not necessary to
make the Premises reasonably tenantable for its Permitted Use, or (y) are not
them completed because of delay by Tenant in submitting the construction
drawings and specifications as required by Section 3.2, or because of approved
requests made by Tenant, after such delivery, for further alterations or
additions; and (ii) unless the Premises are not completed as provided in (y)
above, Landlord provides Tenant with certification of Landlord's architect that
the Premises are substantially completed.
Landlord shall complete as soon as conditions practicably permit all items
and work excepted under the above paragraph and Tenant shall not use the
Premises in such manner as to increase the cost of such completion.
In the event of Tenant's failure to comply with the provisions of Section
3.2 of this Lease, Landlord may, at Landlord's option, exercisable by notice to
Tenant, terminate this Lease on the date specified in such notice to Tenant and
upon such termination landlord shall have all the rights provided in event of
Tenant's default in Article XVI of this Lease.
3.4 TENANT'S OCCUPANCY
As soon as reasonably possible after the Premises are deemed ready for
occupancy as provided in Section 3.3, the Tenant shall commence beneficial use
of the Premises.
3.5 PERFORMANCE OF THE LANDLORD'S WORK
Except to the extent to which the Tenant shall have given the Landlord
notice, not later than the end of the second full calendar month next beginning
after the Commencement Date, of respects in which the Landlord has not performed
the Landlord's obligations under this Article III, the Tenant shall have no
claim that the Landlord has failed to perform any such obligations.
3.6 TENANT PAYMENTS OF CONSTRUCTION COSTS
The Landlord shall have the same rights and remedies which the Landlord has
for nonpayment of Rent for nonpayment of amounts which the Tenant is required to
pay to the Landlord in connection with the preparation of the Premises for
Tenant's occupancy.
ARTICLE IV
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TERM
4.1 EXTENSION OF TERM
[DELETED]
ARTICLE V
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RENT
5.1 RENT
The Rent (specified in Section 1.1 hereof and in this Article) and any
additional rent or other charges payable pursuant to this Lease shall be payable
by the Tenant to the Landlord at Landlord's mailing address or such other place
as the Landlord may from time to time designate by notice to the Tenant without
prior demand therefor and without any offset whatsoever except as otherwise
specifically provided for in this Lease. Base Rent for each of the months 1
through 12, inclusive shall be at a rate of $19.50 per rentable square foot;
Base Rent for each of the months 13 through 24 inclusive, shall be at a rate of
$19.75 per rentable square foot; Base Rent for each of the months 25 through 36
inclusive, shall be at a rate of $20.00 per rentable square foot.
(a) The Rent shall be payable in advance on the first day of each and
every calendar month during the term of this Lease, except as
otherwise provided in Subsection (b)
of this Section 5.1.
(b) The Rent for the first calendar month of the Lease Term is due and
payable at the time of execution and delivery of the Lease. If the
Commencement Date occurs on a day other than the first day of a
calendar month, the Tenant shall pay to the Landlord on the first day
of the succeeding calendar month a pro rata payment of Rent for the
partial month from the Commencement Date to the first day of the
succeeding calendar month. Such payment, together with the payment
made by the Tenant upon execution and delivery of the Lease, shall
constitute payment for the first full calendar month of the Lease Term
plus the partial month, if any, immediately following the Commencement
Date.
(c) Rent for any partial month shall be paid by the Tenant to the Landlord
at such rate on a pro rata basis. Other charges payable by the Tenant
on a monthly basis, as hereinafter provided, shall likewise be
prorated.
(d) Rent, additional rent and any other sums due hereunder not paid within
ten (10) days of the due date shall bear interest at the rate of one
and one-half percent (1-1/2%) per month or fraction thereof (or at any
lesser maximum legally permissible rate) from the due date until paid.
ARTICLE VI
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USE OF PREMISES
6.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied by Tenant only
for a general and business office and for no other purpose or purposes.
Tenant further agrees to conform to the following provisions during the
entire term of this Lease:
(a) Tenant shall cause all freight to be delivered to or removed from the
Building and the Premises in accordance with the Rules and Regulations
established by Landlord therefor;
(b) Tenant will not place on the exterior of exterior walls (including
both interior and exterior surfaces of windows and doors) or on any
part of the Building outside the Premises, any signs, symbols,
advertisement or the like visible to public view outside of the
Premises with the prior consent of Landlord. Without limitation,
lettering on windows is expressly prohibited;
(c) The Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of any Board of Fire Underwriters, or any
other body hereafter constituted exercising similar functions and
governing insurance rating bureaus; and shall not do or permit
anything to be done in or upon the Premises, or bring or keep anything
therein, except as now or hereafter permitted by any governmental
authority, Board of Fire Underwriters or any other similar body having
jurisdiction, or insurance rating bureau; and shall keep the Premises
equipped with all safety appliances or equipment required by any
governmental authority, Board of Fire Underwriters or other similar
body or governing insurance rating bureau by reason of the Tenant's
particular use of the Premises or the location of partitions, trade
fixtures or other contents of the Premises; and shall procure all
licenses, permits or other approvals required because of such use, it
being understood that the foregoing provisions shall not be construed
to broaden in any way the permitted Use of the Premises; and Landlord
does hereby represent that to the best of Landlord's knowledge the
Premises conforms to all rules, orders, regulations and requirements
of the Board of Fire Underwriters and that the Permitted Use does not
violate such rules, orders, regulations and requirements;
(d) The Tenant, at its expense, shall comply with all rules, orders,
permit conditions and regulations of governmental authorities now or
hereafter in force and with any lawful direction of any public
officer, in each case to the extent the same are applicable to the
Premises or the use and maintenance thereof. If the Tenant receives
notices of any violation of law, ordinance, order, permit conditions
or regulation applicable to the Premises or the use and maintenance
thereof, it shall give prompt notice thereof to the Landlord;
(e) The Tenant shall not place a load upon any floor of the Premises
exceeding the load which such floor was designed to carry or that
which is allowed by law, whichever is less. The Landlord reserves the
right to limit the weight of safes and other heavy objects and to
designate their position. The Tenant shall not move any safes or heavy
objects in or out of the Building without the Landlord's prior
consent;
(f) The Tenant shall not commit or suffer to be committed any waste upon
the Premises or any public or private nuisance, or other act or thing
which may disturb the quiet enjoyment of any other tenant or occupant
in the Building, nor, without limiting the generality of the
foregoing, shall the Tenant make any unusual noises in the Building,
cause or permit any offensive odors to be produced upon the Premises,
or use any apparatus, machinery or device in or about the Premises
which shall cause any damage to the Building or the Premises or any
vibration outside the Premises;
(g) The electricity furnished to the Premises shall be metered in common
with other occupants on the third floor, west wing of the Building and
the Tenant shall pay the cost of such electricity consumed in the
Premises as set forth in Section 11.1 herein.
The Tenant shall not, without the Landlord's written consent in each
insurance, connect to the electrical distribution system any fixtures,
appliances or equipment other than lamps, typewriters and similar
small office machines which operate on a voltage not in excess of 120,
or make any alteration or addition to the electrical system of the
Premises; and
(h) The Tenant shall continuously occupy the Premises during the Lease
Term, subject to temporary interruptions for causes beyond the
Tenant's reasonable control. The Tenant shall comply and shall cause
its employees, agents and invitees to comply with the Rules and
Regulations of the Building as set forth in Exhibit G and such changes
therein and other reasonable rules and regulations as the Landlord
shall from time to time establish for the proper regulations of the
Building and the Lot, provided that such additional rules and
regulations shall be of general application to all the tenants in the
Building and shall not conflict with any terms of the Lease, and in
the event of any such conflict, the terms of this Lease shall apply.
6.2 ALTERATIONS
The Tenant shall not redecorate or make alterations, additions or
improvements to the Premises, except with the prior written consent of the
Landlord, provided, however, Landlord's consent with respect to non-structural
redecorations, alterations, additions and improvements shall not be unreasonably
withheld.
All alterations, additions and improvements made by the Tenant to the
Premises shall remain therein and, at the termination of the Lease, shall be
surrendered as a part thereof, except for trade fixtures and equipment (as
distinguished form leasehold improvements) installed prior to or during the term
of this Lease at the Tenant's sole cost. Such trade fixtures and equipment may
be removed by the Tenant if the Tenant is not then in default hereunder, and if
such removal shall not result in permanent damage to the Premises or the
Building. The Tenant shall remove such trade fixtures and equipment at the
termination of the Lease if requested to do so by the Landlord. The Tenant
shall at its expense promptly repair any and all damage to the Premises or the
Building resulting from any removal of such fixtures and equipment, ordinary
wear and tear excepted.
Any personal property which shall remain in the Building or on the Premises
after the expiration or earlier termination of the Lease shall conclusively be
deemed to have been abandoned by the Tenant, and either may be retained by the
Landlord as its own property or may be disposed of by sale, storage or otherwise
as the Landlord shall see fit, all at the Tenant's expense. Notwithstanding the
foregoing, the Tenant will, upon request of the Landlord after the expiration or
termination of the Term hereof, promptly remove from the Building any such
personal property, or if any part of such personal property shall be sold, the
Landlord may receive and retain the proceeds of such sale and apply the same, at
its option, against the expenses of sale, the costs of moving and storage, any
arrears of Rent, additional rent or other charges payable hereunder or any
damages to which the Landlord may be entitled.
ARTICLE VII
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ASSIGNMENT AND SUBLETTING
7.1 PROHIBITION
Notwithstanding any other provisions of this Lease, the Tenant shall not
assign or otherwise transfer, voluntarily or involuntarily, this Lease or any
interest herein or sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) or allow any other person to
occupy the whole or any part of the Premises, without, in each instance, the
prior written consent of the Landlord. This prohibition shall not include any
assignment, subletting or other transfer (1) to a parent corporation or to any
subsidiary or affiliate of the Tenant; for the purposes of this Lease, the term
"affiliate" shall mean any corporation, directly or indirectly, through one or
more intermediaries, that controls, is controlled by, or is under common control
with, the Tenant or its parent corporation; as used in the preceding clause, the
term "control" shall mean the right to exercise, directly or indirectly, more
than fifty (50%) percent of the voting rights attributable to the shares of the
controlled corporation, (2) to any corporation into which Tenant may merge or to
any corporation to which Tenant shall sell all or substantially all of its
assets or all or substantially all of its corporate stock.
In any case, whether or not the Landlord's consent to such assignment, or
other transfer or subletting is required herein, the Tenant originally named
herein shall remain fully liable for Tenant obligations hereunder, including,
without limitation, the obligations to pay the rent and other amounts provided
under this Lease, and the Tenant also hereby agrees to pay to the Landlord,
within fifteen (15) days of billing therefore, all legal and other fees incurred
by the Landlord in connection with reviewing and approving any such assignment,
other transfer or subletting. Except with respect to the assignment,
subletting, or transfer permitted pursuant to the second sentence in this
Section, the Tenant shall give written notice to the Landlord of the terms of
any such proposed assignment or sublease and the Landlord shall have the right
to terminate this Lease on notice to the Tenant if the rent and other payments
from such proposed assignee or subtenant would exceed that provided hereunder.
It shall be a condition of the validity of any permitted assignment or other
transfer or subletting that the assignee or transferee or sublessee agree
directly with the Landlord, in form satisfactory to the Landlord, to be bound by
all Tenant obligations hereunder, including, with limitation, the obligation to
pay rent and other amounts provided for under this Lease and the covenant
against further assignment or other transfer or subletting.
7.2 ACCEPTANCE OF RENT FROM TRANSFEREE
The acceptance by the Landlord of the payment of Rent, additional rent or
other charges following an assignment, subletting or other transfer prohibited
by this Article VI shall not be deemed to be a consent by the Landlord to any
such assignment, subletting or other transfer, nor shall the same constitute a
waiver of any right or remedy of the Landlord.
ARTICLE VIII
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RESPONSIBILITY FOR REPAIRS
8.1 REPAIRS
From and after the date that possession of the Premises is delivered to the
Tenant and until the end of the Lease Term, the Tenant shall keep the Premises
and every part thereof in good order, condition and repair, reasonable wear and
tear and damage by unavoidable casualty only excepted, and the Tenant shall
surrender the Premises at the end of the Lease Term in such condition. Except
as may be provided in Articles XIII and XIV, the Landlord agrees to keep in good
order, condition and repair the structural and exterior portions of the Building
and the common areas and facilities and common equipment in the Building, except
any condition caused by any act, omission or neglect of the Tenant or any
contractor of the Tenant or any party for whose conduct the Tenant is
responsible. Without limitation, the Landlord shall not be responsible to make
any improvements or repairs other than as expressly provided in this Section,
and the Landlord shall not be liable for any failure to make such repairs unless
the Tenant has given notice to the Landlord of the need to make such repairs and
the Landlord has failed to commence to make such repairs within a reasonable
time thereafter.
Whenever the Tenant shall make repairs, alternations, decorations,
additions, removals, or improvements (including the installation of any
equipment other than normal light business office equipment) in or to the
Premises:
(a) No material or equipment shall be incorporated in or added to the
Premises in connection with any such repair, alteration, decoration,
addition, removal or improvement which is subject to or claimed to be
subject to any lien, charge, mortgage, or other encumbrance of any
kind whatsoever or is subject to any security interest or any form of
title retention agreement. Any mechanic's or materialmen's lien filed
against the Premises or the Building for work claimed to have been
done for, or materials claimed to have been furnished to the Tenant,
shall be immediately discharged by the Tenant, at the Tenant's
expense, by filing the bond required by law or otherwise. If the
Tenant fails so to discharge any lien, the Landlord may do so at
Tenant's expense and the Tenant shall reimburse the Landlord for all
expenses and costs incurred by the Landlord in so doing immediately
after rendition of a bill therefor by the Landlord to the Tenant.
(b) All installation of work done by or for the Tenant shall be at its own
expense and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof:
(ii) orders, rules and regulations of any Board of Fire Underwriters,
or any other body hereafter constituted exercising similar functions,
and governing insurance rating bureaus; (iii) plans and specifications
(which shall be prepared by and at the expense of the Tenant)
theretofore submitted
to and approved in writing by the Landlord.
(c) The Tenant shall procure all necessary permits before undertaking any
work in the Premises and shall do all such work in a good and
workmanlike manner, employing new materials of first class quality and
shall defend, save harmless, exonerate and indemnify the Landlord from
all injury, loss or damage to any person or property occasioned by
such work. The Tenant shall cause contractors employed by the Tenant
to carry and maintain in force during the continuance of any work
being performed for the Tenant Worker's Compensation Insurance in
accordance with statutory requirements and Comprehensive Public
Liability Insurance and Automobile Liability Insurance covering such
contractors on or about the Premises in amounts reasonably acceptable
to the Landlord and to submit certificates evidencing such coverage to
the Landlord prior to the commencement of such work.
(d) The Tenant shall not, at anytime prior to or during the Term of this
Lease, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection
with any repair work or the making of any alteration, improvements or
additions or otherwise, if such employment will interfere or cause any
conflict with other contractors, mechanics, or laborers engaged in the
construction, maintenance or operation of the Building by the
Landlord, Tenant or others. In the event of any such interference or
conflict, the Tenant, upon demand of the Landlord, shall cause all
contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
ARTICLE IX
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SERVICES TO BE FURNISHED BY LANDLORD
9.1 CLEANING SERVICES
The Landlord shall cause cleaning services to be provided to the Premises
as described in Exhibit D.
9.2 OTHER SERVICES
The Landlord shall cause other services to be furnished to the Tenant as
set forth in Exhibit E.
9.3 ADDITIONAL SERVICES
Upon reasonable advance notice from Tenant, Landlord will endeavor to
furnish additional heat, air-conditioning or other services to the Premises on
days and at times other than as provided
in Exhibits D and E, and Tenant shall on demand and as additional rent pay to
Landlord, on account thereof, a reasonable charge for such additional services
equal to Landlord's good faith estimate of the additional costs incurred by
Landlord on account thereof as specified in the Rules and Regulations.
Notwithstanding the preceding sentence, additional heat and air conditioning
services that are provided to the Premises will be charged to Tenant at a rate
of $35.00 per hour.
9.4 CAUSES BEYOND CONTROL OF THE LANDLORD
The Landlord shall in no event be liable for failure to perform any of its
obligations under this Lease when prevented from doing so by causes beyond its
control, including, without limitation, labor dispute, breakdown, accident,
order or regulation of or by any governmental authority, or failure to supply,
or inability by the exercise of reasonable diligence to obtain supplies, parts
or employees necessary to furnish services required under this Lease, or because
of war or other emergency, or for any cause due to any act, neglect or default
of the Tenant or the Tenant's servants, contractors, agents, employees, licenses
or any person claiming by, through or under the Tenant, and in no event shall
the Landlord ever be liable to the Tenant for any indirect or consequential
damages under the provisions of this Section 8.4 or any other provision of this
Lease.
ARTICLE X
---------
REAL ESTATE AND OTHER TAXES; OTHER EXPENSES
10.1 LANDLORD TO PAY REAL ESTATE TAXES
Landlord shall be responsible for the payment, before the same becomes
delinquent, of all general and special taxes, including assessments for local
improvements, and other governmental charges which may be lawfully charged,
assessed or imposed upon the Building and the Lot. However, if authorities
having jurisdiction assess real estate taxes, assessments or other charges which
Landlord considers excessive, Landlord may defer compliance therewith to the
same extent permitted by the laws of the jurisdiction in which the same are
located, so long as the validity or amount thereof is contested by Landlord in
good faith, and so long as Tenant's occupancy of the Premises is not disturbed.
ARTICLE XI
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ELECTRICITY COSTS
11.1 TENANT'S SHARE OF ELECTRICITY COSTS
(a) The annual rent payable by the Tenant shall be adjusted for Tenant's
costs of electricity for the Premises. The Tenant shall pay, as
additional rent, the Tenant's
Proportionate Share of electricity costs based upon the costs
reflected in the common meter for the third floor, west wing of the
Building, which meter shall exclude electricity for heat and air
conditioning provided by the Landlord to the Premises and not by
separate equipment installed or placed by or for the Tenant. Such
amount shall be due and payable within thirty (30) days after the
presentation by the Landlord to the Tenant of a statement for
electricity costs for the Premises. After the first Lease Year, the
Tenant shall pay to the Landlord pro rata monthly installments on
account of projected electricity costs for the Lease Year, calculated
by the Landlord on the basis of the most recent meter reading, with an
adjustment made after actual meter readings and presentation of a
statement of costs to Tenant as aforesaid. If the total of such
monthly installments is greater than the actual electricity costs for
any month, the Tenant shall be entitled to a credit against the
Tenant's rental obligations hereunder in the amount of such
difference. If the total of such monthly installments is less than the
actual electricity cost for any month, the Tenant shall pay to the
Landlord the amount of such difference promptly upon billing therefor.
(b) For the purposes of this Article "Lease Year" shall mean any fiscal
year from January 1 to December 31, except that the first Lease Year
during the term of this Lease shall commence on the Commencement Date
and end on the second next following December 31 and the last Lease
Year during the term of this Lease shall end on the date this Lease
terminates.
(c) In no event shall the additional rent for Tenant's electric exceed
$1.00 per square foot per year or .083 cents per month per square
foot, payable monthly.
ARTICLE XII
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INDEMNITY
12.1 THE TENANT'S INDEMNITY
To the maximum extent permitted by law, the Tenant shall indemnify and save
harmless the Landlord, the directors, officers, agents and employees of the
Landlord and those in privity of estate with the Landlord, from and against all
claims, expenses or liability of whatever nature (a) arising from any default,
act , omission or negligence of the Tenant, or the Tenant's contractors,
licensees, agents, servants or employees, or the failure of the Tenant or such
persons to comply with any rule, order, regulation or lawful direction now or
hereafter in force of any public authority, in each case to the extent the same
are related, directly or indirectly, to the Premises or the Building, or the
Tenant's use thereof; or (b) arising directly or indirectly from any accident,
injury or damage, however caused, to any person or property on or about the
Premises; or (c) arising, directly or indirectly, out of default or breach by
the Tenant under any of the terms or covenants of this Lease
or in connection with any equipment or installations to be maintained or
repaired by the Tenant; or (d) arising directly or indirectly, from any
accident, injury or damage to any person or property occurring outside the
Premises but within the Building, or on the Lot where such accident, injury or
damage results, or is claimed to have resulted from, any act, omission or
negligence on the part of the Tenant, or the Tenant's contractors, licensees,
agents, servants, employees or customers of anyone claiming by or through the
Tenant; provided, however, that in no event shall the Tenant be obligated under
this Section 11.1 to indemnify the Landlord, the directors, officers, agents and
employees of the Landlord, or those in privity of estate with the Landlord,
where such claim, expense or liability results from any omission, fault,
negligence or other misconduct of the Landlord or the officers, agents or
employees of the Landlord on or about the Premises or the Building.
This indemnity and hold harmless agreement shall include indemnity against
all expenses and liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof with counsel acceptable to
the Landlord or counsel selected by an insurance company which has accepted
liability for any such claim.
12.2 THE TENANT'S RISK
To the fullest extent permitted by law the Landlord shall have no
responsibility or liability for any loss of or damage to furnishings, fixtures,
equipment or other personal property of the Tenant or of any persons claiming
by, through or under the Tenant.
12.3 INJURY CAUSED BY THIRD PARTIES
The Tenant agrees that the Landlord shall not be responsible or liable to
the Tenant, or to those claiming by, through or under the Tenant, for any loss
or damage resulting to the Tenant or those claiming by, through or under the
Tenant, or its or their property, that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or in any part of the Building, or
for any loss or damage from the breaking, bursting, stopping or leaking of
electric cables and wires, and water, gas, sewer or steam pipes or like matters.
ARTICLE XIII
------------
THE LANDLORD'S ACCESS TO PREMISES
13.1 THE LANDLORD'S RIGHT OF ACCESS
The Landlord shall have the right to enter the Premises at all reasonable
hours for the purpose of inspecting or of making repairs, alterations or
additions to the Premises or the Building, and the Landlord shall also have the
right to make access available at all reasonable hours to prospective or
existing mortgagees or purchasers of any part of the Building. To assure access
by the Landlord to
the Premises, the Tenant shall provide the Landlord with duplicate copies of all
keys used by the Tenant in providing access to the Premises.
For a period commencing six (6) months prior to the expiration of the term
of this Lease, the Landlord may have reasonable access to the Premises at all
reasonable hours for the purpose of exhibiting the same to prospective tenants.
13.2 ACCESS DURING THE LAST MONTH OF TERM
If during the last month of the Lease Term, the Tenant shall have removed
all of the Tenant's property therefrom, the Landlord may immediately enter and
alter, renovate and redecorate the Premises, without elimination or abatement of
rent, or incurring liability to the Tenant for any compensation, and such acts
shall have no effect upon otherwise applicable terms of this Lease.
ARTICLE XIV
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CASUALTY
14.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND PARTIAL DAMAGE
The term "substantial damage", as used herein, shall refer to damage which
is of such a character that in the Landlord's reasonable opinion the same
cannot, in ordinary course, be expected to be repaired within 120 calendar days
from the time that such repair work would commence. Any damage which is not
"substantial damage" is "partial damage."
14.2 PARTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be partial damage to the Building by
fire or other casualty and if such damage shall materially interfere with the
Tenant's use of the Premises as contemplated by this Lease, the Landlord shall
promptly proceed to restore the Building to substantially the condition in which
it was immediately prior to the occurrence of such damage.
14.3 SUBSTANTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be substantial damage to the Building
by fire or other casualty and if such damage shall materially interfere with the
Tenant's use of the Premises as contemplated by this Lease, the Landlord shall
promptly restore the Building to the extent reasonably necessary to enable the
Tenant use of the Premises, unless the Landlord, within twenty (20) days after
the occurrence of such damage, shall give notice to the Tenant of the Landlord's
election whether to terminate this Lease or to restore. The Landlord shall have
the right to make such election in the event of substantial damage to the
Building whether or not such damage materially interferes with the Tenant's use
of the Premises. If the Landlord shall give such notice,
or in the event no such notice is given, then this Lease shall terminate as of
the date of such notice, or on the date of the expiration of the twenty (20) day
period, whichever occurs last, with the same force and effect as if such date
were date originally established as the expiration date hereof.
14.4 ABATEMENT OF RENT
If during the Lease Term the Building shall be damaged by fire or casualty
and if such damage shall materially interfere with the Tenant's use of the
Premises as contemplated by this Lease, a just proportion of the Rent and other
charges payable by the Tenant hereunder shall abate proportionately for the
period in which, by reason of such damage, there is such interference with the
Tenant's use of the Premises.
14.5 MISCELLANEOUS
In no event shall the Landlord have any obligation to make any repairs or
perform any restoration work under this Article XIII if prevented from doing so
by reason of any cause beyond its reasonable control, including without
limitation, the requirements of any applicable laws, codes, ordinance, rules or
regulations, and in such event Landlord may terminate this Lease by written
notice to the Tenant, given within thirty (30) days after Landlord learns that
it is prevented from restoring as aforesaid. Further, the Landlord shall not be
obligated to make any repairs or perform any restoration work to any fixture in
or portions of the Premises or the Building which were constructed or installed
by or for some party other than the Landlord or which are not the property of
the Landlord.
ARTICLE XV
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EMINENT DOMAIN
15.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable for the Tenant's purposes, shall be taken by condemnation or right of
eminent domain (including a temporary taking in excess of 180 days), the
Landlord or the Tenant shall have the right to terminate this Lease by notice to
the other of its desire to do so, provided that such notice is given not later
than thirty (30) days after the Tenant has been deprived of possession.
Further, if so much of the Building (which may include the Premises) or the
Lot shall be so taken or condemned or shall receive any direct or consequential
damage by reason of anything done pursuant to public or quasi-public authority
such that continued operation of the same would, in the Landlord's reasonable
opinion, be uneconomical, the Landlord shall have the right to terminate this
Lease by giving notice to the Tenant of the Landlord's desire so to do not later
than thirty (30) days
after the effective date of such taking.
Should any part of the Premises be so taken or condemned or receive such
damage and should this Lease be not terminated in accordance with the foregoing
provisions, the Landlord shall promptly after the determination of the
Landlord's award on account thereof, expend so much as may be necessary of the
net amount which may be awarded to the Landlord in such condemnation proceedings
in restoring the Premises to an architectural unit that is reasonably suitable
to the uses of the Tenant permitted hereunder. Should the net amount so awarded
to the Landlord be insufficient to cover the cost of so restoring the Premises,
in the reasonable estimate of the Landlord, the Landlord may, but shall have no
obligation to, supply the amount of such insufficiency and restore the Premises
to such an architectural unit, with reasonable diligence, or may terminate this
Lease by giving notice to the Tenant not later than a reasonable time after the
Landlord has determined the estimated cost of such restoration.
15.2 PAYMENT OF AWARD
The Landlord shall have and hereby reserves and excepts, and the Tenant
hereby grants and assigns to the Landlord, all rights to recover for damages to
the Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or damage,
as aforesaid. The Tenant covenants to deliver such further assignments and
assurances thereof as the Landlord may from time to time request, hereby
irrevocably designating and appointing the Landlord as its attorney-in-fact to
execute and deliver in the Tenant's name and behalf all such further assignments
thereof. Nothing contained herein shall be construed to prevent the Tenant from
prosecuting in any condemnation proceedings a claim for the value of any of the
Tenant's usual trade fixtures installed in the Premises by the Tenant at the
Tenant's expense and for relocation expenses, provided that such action shall
not affect the amount of compensation otherwise recoverable hereunder by the
Landlord from the taking authority.
15.3 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Rent and other
charges, or a fair and just proportion thereof, according to the nature and
extent of the damage sustained, shall be suspended or abated, as appropriate and
equitable in the circumstances.
15.4 MISCELLANEOUS
In no event shall the Landlord have any obligation to make any repairs
under this Article XIV if prevented from doing so by reason of any cause beyond
its reasonable control, including requirements of any applicable laws, codes,
ordinances, permit conditions, rules or regulations. Further, the Landlord shall
not be obligated to make any repairs to any portions of the Premises or the
Building which were constructed or installed by or for some party other than the
Landlord or which were not the property of the Landlord.
ARTICLE XVI
-----------
INSURANCE
16.1 PUBLIC LIABILITY AND PROPERTY INSURANCE
The Tenant agrees to maintain in full force from the date upon which the
Tenant first enters the Premises for any reason, throughout the Lease Term, and
thereafter so long as the Tenant is in occupancy of any part of the Premises, a
policy of comprehensive public liability insurance, written on an occurrence
basis and including contractual liability coverage to cover any liabilities
assumed under this Lease, insuring against all claims for injury to or death of
persons or damage to property on or about the Premises or arising out of the use
of the Premises and under which the Landlord, and such other persons as are in
privity of estate with the Landlord as may be set forth in a notice given from
time to time by the Landlord and the Tenant are named as insureds, as their
respective interests appear, each with the same effect as if separately insured.
The minimum limits of liability of such insurance shall be: Bodily injury -
$1,000,000 per occurrence and in the aggregate over the term of the policy, and
Property Damage - $500,000 per occurrence. The Landlord shall have the right
from time to time to increase such minimum limits upon notice to the Tenant,
provided that any such increase shall provide for coverage in amounts similar to
like coverage being carried on like property in the greater Dearborn area.
The Tenant shall also maintain in full force and effect from the date upon
which the Tenant first enters the Premises for any reason, throughout the Lease
Term and thereafter so long as the Tenant is in occupancy of any part of the
Premises, property insurance covering the Tenant's furnishings, fixtures,
equipment or other personal property of the Tenant written on an "All Risk"
basis for full replacement cost, and such other insurance as the Landlord may,
from time to time, reasonably require. Without limiting the provisions of
Section 11.2, if the Tenant fails to take out or maintain any policy of
insurance required by this Article XV to be taken out and maintained, such
failure shall be complete defense to any claim asserted by the Tenant against
the Landlord by reason of any loss sustained by the Tenant that would have been
covered by such policy.
Each such policy shall be non-cancelable and non-amendable with respect to
the Landlord and such designees of the Landlord without thirty (30) days' prior
notice to the Landlord, and a duplicate original or certificate thereof shall be
delivered to the Landlord.
16.2 NON-SUBROGATION
Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in the
locality in which the Premises are located (even through extra premium may
result therefrom), the Landlord and the Tenant mutually agree that, with respect
to any hazard which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering such loss releases
the other of and from any and all claims
with respect to such loss; and they further mutually agree that their respective
insurance companies shall have no right of subrogation against the other on
account thereof. In the event that extra premium is payable by either party as
a result of this provision, the other party shall reimburse the party paying
such premium the amount of such extra premium. If, at the request of one party,
this release and non-subrogation provision is waived, then the obligation of
reimbursement shall cease for such period of time as such waiver shall be
effective. If the release of either party provided above shall contravene any
law with respect to exculpatory agreements, the liability of the party for whose
benefit such release was intended shall remain but shall be secondary to that of
the other party's insurer.
16.3 EXTRA HAZARDOUS USE
The Tenant covenants and agrees that the Tenant will not do or permit
anything to be done in or upon the Premises, or bring in anything or keep
anything therein, which would invalidate or be in conflict with insurance
coverage maintained by or for the Landlord with respect to the Building or which
would increase the rate of insurance on the Premises or on the Building for the
use to which the Tenant has agreed to devote the Premises; and the Tenant
further agrees that, in the event that the Tenant shall do any of the foregoing,
the Tenant will, at Landlord's election, cease such activity or promptly pay to
the Landlord, on demand, any such increase resulting therefrom, which shall be
due and payable as [part of this sentence may have been cut off when copied] and
at its sole cost and expense, Tenant shall comply with all laws, rules and
regulations relating to the treatment, production, storage handling, transfer,
processing, transporting and disposal of hazardous substances, toxic or
radioactive matter, or any other material or substance which may or could pose a
hazard to the health and safety of the current or future occupants of the
Premises, or the owners or occupants of property adjacent to or in the vicinity
of the Premises. Tenant shall indemnify and hold Landlord harmless for any
violation of any such laws, rules and regulations, and Tenant's obligations and
indemnity as stated in this Section shall survive the termination of this Lease.
ARTICLE XVII
------------
DEFAULT
17.1 TENANT'S DEFAULT.
If:--
a) the Tenant shall fail to pay the Rent or other charges on or before
the date on which the same becomes due and payable and the same
continues for ten (10) days after written notice to Tenant of such
delinquency, or
b) the Tenant shall fail to perform or observe some term or condition of
this Lease which, because of its character, would immediately
jeopardize the Landlord's interest
(such as, but without limitation, failure to maintain public liability
insurance), and such remains uncured ten (10) days after written
notice to Tenant of such failure, or
c) the Tenant shall fail to perform or observe any other term or
condition contained in this Lease within ten (10) days after notice
from the Landlord thereof, unless such default is of such a nature
that it cannot be cured within such ten (10) day period, in which case
no event of default shall occur unless the Tenant shall not commence
to cure such failure promptly within such ten (10) day period and
thereafter continuously and diligently complete the curing of the
same, or
d) the Tenant shall vacate or abandon the Leased Premises, or
e) except as otherwise provided by applicable law, if the estate hereby
created shall be taken on execution or by other process of law, or if
the Tenant shall be judicially declared bankrupt or insolvent
according to law, or if any assignment shall be made of the property
of the Tenant for the benefit of creditors, or if a receiver,
guardian, conservator, trustee in involuntary bankruptcy or other
similar officer shall be appointed to take charge of all or any
substantial part of the Tenant's property by a court of competent
jurisdiction, or if a petition shall be filed for the reorganization
of the Tenant under any provisions of law now or hereafter enacted,
and such proceeding is not dismissed within forty-five (45) days after
it is begun, or if the Tenant shall file a petition for such
reorganization, or for arrangements under any provisions of such laws
providing a plan for a debtor to settle, satisfy or extend the time
for the payment of debts,--
then, in addition to and not as a limitation on or in lieu of such other or
additional remedies as may be available to Landlord by law, Landlord shall have
the right to declare this Lease terminated and the term ended, or to re-enter
the Premises and to remove all persons and chattels therefrom, or to exercise
all such remedies, and Landlord shall not be liable for damages to person or
property by reason of any such re-entry or termination. Landlord shall provide
Tenant fifteen (15) days prior notice before re-entry by Landlord. In the event
of such re-entry by Landlord without notice of termination of the Lease, the
liability of Tenant for the rent provided herein shall not be relinquished or
extinguished for the balance of the term of this Lease, and any rentals prepaid
may be retained by Landlord and applied against the costs of re-entry, or as
liquidated damages, or both; Tenant will pay, in addition to the rentals and
other sums agreed to be paid hereunder, reasonable attorney's fees, costs and
expenses in any suit or action instituted by Landlord to enforce the provisions
of this Lease or the collection of the rentals due Landlord hereunder.
In the event of termination of the Lease at or after the time of re-entry,
Landlord may re-let the Premises or any part thereof for a term or terms and at
a rent which may be less than or exceed the balances of the term of and the Rent
reserved under this Lease, the rent for which the Premises are so re-let being
prima facie the fair and reasonable rental value thereof, and in the event of
such declaration Tenant shall pay to Landlord as liquidated damages for Tenant's
default hereunder, at
Landlord's option:
(a) Any deficiency between the total rent reserved hereunder and the net
amount, if any, of the rents collected on account of any lease or leases of the
Premises for what would otherwise have constituted the balance of the term of
this Lease; in computing such expenses which Landlord may incur in connection
with re-letting, such legal expenses, attorneys' fees and expenses, advertising
and expenses for keeping the Premises in good order or for preparing the same
for re-letting, and any such liquidated damages shall be paid in monthly
installments by Tenant on the day Rent is due hereunder, and any suit brought to
collect the deficiency for any month shall not prejudice the right of the
Landlord to collect the deficiency for any subsequent month by a similar
proceeding; or
(b) In a lump sum, the worth at the time of such declaration of any
deficiency between (a) the total rent reserved hereunder and (b) reasonably
foreseeable expenses of re-letting.
Landlord shall use its reasonable efforts to re-let the Premises but shall
not be responsible in any way whatsoever for failure to re-let the Premises, or
in the event that the Premises are re-let, for failure to collect the rent
thereof under such re-letting, provided, however, that Landlord shall have used
reasonable efforts to re-let the Premises and to collect any rent due upon re-
letting. The failure of Landlord to re-let the Premises or any part thereof
shall not release or affect Tenant's liability for rent or damages.
Notwithstanding any of the foregoing, any and all indebtedness owing by
Tenant to Landlord pursuant to the terms of this Lease, which remains unpaid for
a period of five (5) days after it first becomes due and payable, shall bear
interest at a rate which shall be the greater of eleven percent (11%) per annum
or four percent (4%) per annum over the prime interest rate charged from time to
time by the National Bank of Detroit to its best commercial customers, but not
in excess of the maximum rate permitted by law.
17.2 THE LANDLORD'S DEFAULT
The Landlord shall in no event be in default in the performance of any of
the Landlord's obligations hereunder unless and until the Landlord shall have
failed to perform such obligations within thirty (30) days, or such additional
time as is reasonably required to correct any such default, after notice by the
Tenant to the Landlord properly specifying wherein the Landlord has failed to
perform any such obligation.
Further, if the holder of a mortgage which includes the Premises notifies
the Tenant that such holder has taken over the Landlord's rights under this
Lease, then Tenant shall not assert any right to deduct the cost of repairs or
any monetary claims against the Landlord theretofore accrued from rent
thereafter due and payable, but shall look solely to the Landlord and not such
holder for satisfaction of such claim.
ARTICLE XVIII
-------------
MISCELLANEOUS PROVISIONS
18.1 WAIVER
Failure on the part of the Landlord to complain of any action or non-action
on the part of the Tenant, no matter how frequently the same may occur or how
long the same may continue, shall never be a waiver by the Landlord of its
rights hereunder. Further, no waiver at any time of any of the provisions
hereof by the Landlord shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of the Landlord to or of any action by the
other requiring such consent or approval shall not be construed to waive or
render unnecessary the Landlord's consent or approval to or of any subsequent
similar act by the Tenant. No option or right granted to the Tenant to renew
this Lease or to extend the Lease Term shall be considered to give the Tenant
any further option or right to renew or extend.
18.2 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on payment of the
rent and compliance with all of the terms and provisions of this Lease, the
Tenant shall lawfully, peaceably and quietly have, hold, occupy and enjoy the
Premises during the term hereof, without hindrance or ejection by the Landlord
or by any persons lawfully claiming under the Landlord; the foregoing covenant
of quiet enjoyment is in lieu of any other covenant, express or implied.
18.3 NO PERSONAL LIABILITY OF THE LANDLORD
The Tenant agrees to look solely to the Landlord's then equity interest in
the Building at the time owned, or in which the Landlord holds an interest as
ground lessee, for recovery of any judgment from the Landlord; it being
specifically agreed that neither the Landlord (whether the Landlord be an
individual, partnership, firm, corporation, trustee or other fiduciary) nor any
of the partners comprising the Landlord, nor any beneficiary of any trust of
which any person holding the Landlord's interest is trustee nor any successor in
interest to any of the foregoing shall ever be personally liable for any such
judgment, or for the payment of any monetary obligation to the Tenant. The
covenants of the Landlord contained in this Lease shall be binding upon the
Landlord and the Landlord's successors only with respect to breaches occurring
during the Landlord's and the Landlord's successors' respective periods of
ownership of the Landlord's interest hereunder.
18.4 NOTICE TO MORTGAGEE AND GROUND LESSOR; OPPORTUNITY TO CURE
After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Premises as part of the mortgaged premises, or
that it is the ground lessor under a lease with the Landlord, as ground lessee,
which includes the Premises as a part of the demised premises,
no notice from the Tenant to the Landlord shall be effective unless and until a
copy of the same is given to such holder or ground lessor, and the curing of any
of the Landlord's defaults by such holder or ground lessor shall be treated as
performance by the Landlord. Accordingly, no act or failure to act on the part
of the Landlord which would entitle the Tenant under the terms of this Lease, or
by law, to be relieved of the Tenant's obligations hereunder or to terminate
this Lease, shall result in a release or termination of such obligations or a
termination of this Lease unless (i) the Tenant shall have first given written
notice of the Landlord's act or failure to act to such holder or ground lessor,
if any, specifying the act or failure to act on the part of the Landlord which
could or would give basis to the Tenant's rights; and (ii) such holder or ground
lessor, after receipt of such notice, has failed or refused to correct or cure
the condition complained of within a reasonable time thereafter, but nothing
contained in this paragraph shall be deemed to impose any obligation on any such
holder or ground lessor to correct or cure any such condition. "Reasonable
time" as used above means and includes a reasonable time to obtain possession of
the Lot and Building if any such holder or ground lessor elects to do so and a
reasonable time to correct or cure the condition if such condition is determined
to exist.
18.5 NO BROKERAGE
The Tenant warrants and represents that the Tenant has dealt with no broker
other than G. A. Snowden & Associates, Inc. in connection with the consummation
of this Lease, and, in the event of any brokerage claims, other than claims by
G. A. Snowden & Associates, Inc., and against the Landlord predicated upon prior
dealings with the Tenant named herein, the Tenant agrees to defend the same and
indemnify the Landlord against any such claim.
18.6 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and been forced to the fullest extent permitted by
law.
18.7 PROVISIONS BINDING, ETC.
Except as herein otherwise expressly provided, the terms hereof shall be
binding upon and shall inure to the benefit of the successors and assigns,
respectively, of the Landlord and the Tenant and, if the Tenant shall be an
individual, upon and to his heirs, executors, administrators, legal
representatives, successors and assigns. Each term and each provision of this
Lease to be performed by the Tenant shall be construed to be both a covenant and
a condition. The reference contained to successors and assigns of the Tenant is
not intended to constitute a consent to assignment by the Tenant, but has
reference only to those instances in which the Landlord may later give consent
to a particular assignment as required by those provisions of Article VII
hereof. If the Tenant be several persons, natural or corporate, the liability
of such persons for compliance with the obligations
of the Tenant under this Lease shall be joint and several. In all instances
where the Tenant is required under this Lease to pay any sum or do any act at or
by a particular time it is agreed that time is of the essence.
18.8 RECORDING
The Tenant agrees to record this Lease.
18.9 NOTICES
Whenever, by the terms of this Lease, notice shall or may be given either
to the Landlord or to the Tenant, such notice shall be in writing and shall be
sent by registered or certified mail, postage prepaid or by so-called "express"
mail (such as Federal Express or U.S. Postal Service Express Mail):
If intended for the Landlord, addressed to the Landlord at the
address set forth on the first page of this Lease or to such other
addresses as may from time to time hereafter be designated by the
Landlord by like notice.
with a copy to: John Hancock Mutual Life Insurance Company
Group Property Management, T-32
Attention: Patricia A. Barry
John Hancock Place
Boston, MA 02117
If intended for the Tenant, addressed to the Tenant at the
address set forth on the first page of this Lease, or to such other
address or addresses as may from time to time hereafter be designated
by the Tenant by like notice.
All such notices shall be effective two (2) days after deposited in the
United States mail within the Continental United States or when received by the
"express" mail carrier, as the case may be.
18.10 WHEN LEASE BECOMES BINDING
Employees or agents of the Landlord have no authority to make or agree to
make a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both the Landlord and the Tenant. All negotiations, consideration,
representations and understandings between the Landlord and the Tenant are
incorporated herein and may be modified or altered only by written agreement
between the Landlord and the Tenant, and no act or omission of any employee or
agent of the Landlord shall alter, change or modify any of the
provisions hereof.
18.11 PARAGRAPH HEADINGS
The paragraph headings throughout this instrument are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Lease.
18.12 RIGHTS OF MORTGAGEE
If any holder of a mortgage or holder of a ground lease of property which
includes the Premises, originally given to a lender, and executed and recorded
subsequent to the date of this Lease, shall so elect, the interest of the Tenant
hereunder shall be subordinate to the rights of such holder. If any holder of a
mortgage or holder of a ground lease of property which includes the Premises,
originally given to a lender, and executed and recorded prior to the date of
this Lease, shall so elect, this Lease, and the rights of the Tenant hereunder,
shall be superior in right to the rights of such holder, with the same force and
effect as if this Lease had been executed and delivered, and recorded, or a
statutory notice hereof recorded, prior to the execution, delivery and recording
of any such mortgage. If in connection with obtaining financing for the
Building, a bank, insurance company, pension trust or other institutional lender
shall request reasonable modifications in this Lease as a condition to such
financing, the Tenant will not unreasonably withhold, delay or condition its
consent thereto, provided that such modifications do not materially adversely
affect the Tenant or the leasehold interest hereby created. No assignment of
this Lease and no agreement to make or accept any surrender, termination or
cancellation of this Lease and no agreement to modify so as to reduce the rent,
change the term, or otherwise materially change the rights of the Landlord under
this Lease, or to relieve the Tenant of any obligations or liability under this
Lease, shall be valid unless consented to in writing by the Landlord's mortgages
of record, if any. Tenant agrees on request of the Landlord to execute and
deliver from time to time any agreement which may reasonably be deemed necessary
to implement the provisions of this Section 18.12.
18.13 STATUS REPORT; MODIFICATION
Recognizing that the Landlord may find it necessary to establish to third
parties, such as accountants, banks, mortgagees or the like, the then current
status of performance hereunder Tenant agrees to execute in form satisfactory to
the Landlord within ten (10) days of a written request therefor a certificate
stating (i) that this Lease is then in full force and effect and has not been
modified or, if modified, setting forth the specific nature of all
modifications, (ii) the date to which the Rent and any additional rent or other
charges has been paid, (iii) whether or not the Landlord is in default under
this Lease, and if the Landlord is in default, setting forth the specific nature
of all such defaults) and (iv) any other matters relating to the Lease
reasonably requested by Landlord. Tenant's failure to deliver such statement
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification except as may be represented by Landlord,
that there are no uncured defaults in Landlord's performance and that not more
than one (1) month's Rent
has been paid in advance. Without limiting the generality of the foregoing, the
Tenant specifically agrees, promptly upon the commencement of the Term hereof,
to acknowledge to the Landlord satisfaction of any requirements with respect to
construction except for such matters as the Tenant may set forth specifically in
such statement. The Tenant acknowledges that any statement delivered pursuant
to this Section 18.13 may be relied upon by any purchaser or owner of the
Building, or the Lot or any part thereof, or Landlord's interest in the Building
or the Lot or any ground or underlying lease, or by any mortgagee, or by any
assignee of any mortgagee, or by any lessee under any ground or underlying
lease.
18.14 SECURITY DEPOSIT
If, in Section 1.1 hereof a security deposit or prepaid rent is specified,
the Tenant agrees that the same will be paid upon execution and delivery of this
Lease, and that the Landlord shall hold the same, throughout the term of this
Lease, as security for the performance by the Tenant of all obligations on the
part of the Tenant to be kept and performed. The Landlord shall have the right
from time to time, without prejudice to any other remedy the Landlord may have
on account thereof, to apply such amount, or any part thereof, to the Landlord's
damages arising from any default on the part of the Tenant. The Tenant not then
being in default, with respect to a security deposit, the Landlord shall return
the deposit, or so much thereof as shall not have theretofore been applied in
accordance with the terms of this Section 18.14, to the Tenant on the expiration
or earlier termination of the Lease Term and surrender of possession of the
Premises by the Tenant to the Landlord at such time. The Landlord shall, unless
otherwise required by law, have no obligation to pay interest on the deposit or
prepaid rent and shall have the right to commingle the same with the Landlord's
other funds. If the Landlord conveys the Landlord's interest under this Lease,
the deposit or prepaid rent, or any part thereof not previously applied, may be
turned over by the Landlord to the Landlord's grantee, and, if so turned over,
the Tenant agrees to look solely to such grantee for proper application of the
deposit or prepaid rent in accordance with the terms of this Section 17.14, and
the return thereof in accordance herewith. The Tenant agrees that the Tenant
will not assign, encumber or pledge the moneys deposited herein as security, and
that neither the Landlord, nor its successors and assigns, shall be bound by any
such assignment, encumbrance or pledge, attempted assignment, attempted pledge,
or attempted encumbrance.
18.15 SELF-HELP
The Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of moneys which may be
necessary or appropriate by reason of the failure or neglect of the Tenant to
perform any of the provisions of this Lease, and in the event of the exercise of
such right by the Landlord, the Tenant agrees to pay to the Landlord forthwith
upon demand the cost of performing the same, plus an administrative charge
(covering overhead and profit) not to exceed 15% of such cost; and if the Tenant
shall default in such payment, the Landlord shall have the same rights and
remedies as the Landlord has hereunder for the failure of the Tenant to pay the
Rent.
18.16 HOLDING OVER
Any holding over by the Tenant after the expiration of the term of this
Lease without the written consent of the Landlord shall be treated as a tenancy
at sufferance at double the rent specified herein (prorated on a daily basis)
and shall otherwise be on the terms and conditions set forth in this Lease, so
far as applicable.
Any holding over by the Tenant after the expiration of the term of this
Lease with the written consent of the Landlord shall be on a month-to-month
basis, terminable by either party on thirty (30) days' notice and shall be at
the same Rent specified herein and shall otherwise be on the terms and
conditions set forth herein, so far as applicable.
18.17 CERTIFICATE
If the Tenant is a corporation, each of the persons executing this
instrument on behalf of the Tenant, hereby covenants and warrants that the
Tenant is a duly existing and valid corporation and that the Tenant is qualified
to do business in Michigan. Further, if the Tenant is a corporation, the Tenant
shall deliver to the Landlord, at the time of execution of this Lease, a Clerk's
or Secretary's Certificate in the form attached hereto as Exhibit H (or other
suitable form satisfactory to counsel for the Landlord), as to the due
authorization of the execution of this Lease and incumbency of the signing
officer.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, under seal, as of the Date set forth in Section 1.1.
LANDLORD: JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:____________________________
Its
hereunto duly authorized
TENANT: GTE CONTROL DEVICES INCORPORATED
By:____________________________
Its
hereunto duly authorized
18.16 HOLDING OVER
Any holding over by the Tenant after the expiration of the term of this
Lease without the written consent of the Landlord shall be treated as a tenancy
at sufferance at double the rent specified herein (prorated on a daily basis)
and shall otherwise be on the terms and conditions set forth in this Lease, so
far as applicable.
Any holding over by the Tenant after the expiration of the term of this
Lease with the written consent of the Landlord shall be on a month-to-month
basis, terminable by either party on thirty (30) days' notice and shall be at
the same Rent specified herein and shall otherwise be on the terms and
conditions set forth herein, so far as applicable.
18.17 CERTIFICATE
If the Tenant is a corporation, each of the persons executing this
instrument on behalf of the Tenant, hereby covenants and warrants that the
Tenant is a duly existing and valid corporation and that the Tenant is qualified
to do business in Michigan. Further, if the Tenant is a corporation, the Tenant
shall deliver to the Landlord, at the time of execution of this Lease, a Clerk's
or Secretary's Certificate in the form attached hereto as Exhibit H (or other
suitable form satisfactory to counsel for the Landlord), as to the due
authorization of the execution of this Lease and incumbency of the signing
officer.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, under seal, as of the Date set forth in Section 1.1.
LANDLORD: JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:____________________________
Its
hereunto duly authorized
TENANT: GTE CONTROL DEVICES INCORPORATED
By:____________________________
Its
hereunto duly authorized