EXHIBIT 10.61
===============================================
LEASE
BETWEEN
AMERICAN CENTER LLC,
AS LANDLORD
AND
SUN COMMUNITIES
OPERATING LIMITED
PARTNERSHIP,
AS TENANT
===============================================
LEASE
THIS LEASE is made and entered into as of November 1, 2002, by and
between AMERICAN CENTER LLC, a Michigan Limited Liability Company (the
"Landlord"), having its principal office at 20500 Civic Center Drive, Suite
3000, Southfield, Michigan 48076, and Tenant named below who agree as follows:
SECTION 1.
BASIC LEASE PROVISIONS
1.01 The following basic lease provisions are an integral part of this
Lease and are referred to in other Sections of this Lease.
(a) Tenant's name and jurisdiction of formation:
Sun Communities Operating Limited Partnership, a Michigan
Limited Partnership
Tenant Social Security/Taxpayer Identification Number:
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Tenant Standard Industrial Classification (SIC) Code Number: 6531, 6798
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(b) Tenant's Address: 27777 Franklin Road
Suite 200
Southfield, MI 48034
(c) Manager's Name REDICO Management, Inc.
and Address: 20500 Civic Center Drive
Suite 3000
Southfield, Michigan 48076
(d) Project Name: American Center
Building Name: American Center
Building Address: 27777 Franklin Road
Southfield, MI 48034
(e) Premises: Floor: 2nd
Suite Number: 200
Square Feet: 31,346 rentable / 29,024 usable
(f) Term:
Scheduled Occupancy Date: February 1, 2003
Scheduled Expiration Date of Initial Term: January 31, 2008
Initial Term: Five (5) years
(g) Base Rent:
Total Monthly Annual Base
Date Base Rent Rent
--------------------- ------------------- ----------------
2/1/03 - 1/31/04 $50,284.21 $603,410.52
--------------------- ------------------- ----------------
2/1/04 - 1/30/05 $51,590.29 $619,083.48
--------------------- ------------------- ----------------
1/31/05 - 1/31/06 $52,896.38 $634,756.56
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2/1/06 - 1/31/07 $54,202.46 $650,429.52
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2/1/07 - 1/31/08 $55,508.54 $666,102.48
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AGGREGATE $3,173,782.56
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(h) INTENTIONALLY DELETED
(i) Number of Tenant's Designated Parking Spaces: six (6) at no
additional cost and two (2) additional designated parking
spaces at an initial increase of additional rent of $100.00
per month per space.
(j) Security Deposit: None
(k) Tenant Improvement Allowance: $784,000.00
(l)
(m) Permitted Use: Office Use
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SECTION 2.
THE PREMISES
2.01 Landlord, in consideration of the rents to be paid and the
covenants and agreements to be performed by Tenant, hereby leases to Tenant the
premises set forth in Section 1.01(e) (the "Premises") in the building(s) (the
"Building") described in Section 1.01(d), together with the right to use the
parking and common areas and facilities which may be furnished from time to time
by Landlord (collectively the "Common Areas"), including, without limitation,
all common elevators, hallways and stairwells located within the Building, and
all common parking facilities, driveways and sidewalks, in common with Landlord
and with the tenants and occupants of the Project, their agents, employees,
customers, clients and invitees. Tenant agrees that the Premises and the
Building shall be deemed to include the number of rentable square feet set forth
in Section 1.01(h) and in no event shall Tenant have the right to challenge,
demand, request or receive any change in the base rent or other sums due
hereunder as a result of any claimed or actual error or omission in the rentable
or usable square footage of the Premises, the Building or the Project. Landlord
reserves the right at any time and from time to time to make alterations or
additions to the Building or the Common Areas, and to demolish improvements on
and to build additional improvements on the land surrounding the Building and to
add or change the name of the Building from time to time, in its sole discretion
without the consent of Tenant and the same shall not be construed as a breach of
this Lease provided same do not unreasonably interfere with Tenant's use or
occupancy of the Premises. The Building, the other buildings listed in Section
1.01(d), the Common Areas and the land surrounding the Building and the Common
Areas are hereinafter collectively referred to as the "Project".
2.02 Landlord agrees to construct the improvements to the Premises (the
"Tenant Improvements") in accordance with the space plan(s) (as it may be
amended by approved change orders, the "Plans"), attached as Exhibit "A". All
material changes from the Plans which Landlord determines are necessary during
construction shall be submitted to Tenant for Tenant's approval or rejection. If
Tenant fails to notify Landlord of Tenant's approval or rejection of such
changes within five (5) business days of receipt thereof, Tenant shall be
conclusively deemed to have approved such changes. Landlord's approval of the
Plans shall not constitute a representation, warranty or agreement (and Landlord
shall have no responsibility or liability for) the completeness or design
sufficiency of the Plans or the Tenant Improvements, or the compliance of the
Plans or Tenant Improvements with any laws, rules or regulations of any
governmental or other authority.
2.03 The provisions of Exhibit D, special provisions, shall govern the
cost of constructing Tenant Improvements.
2.04 Landlord intends to construct the Tenant Improvements and deliver
the Premises "ready for occupancy" (as defined below) to Tenant on the Scheduled
Occupancy Date set forth in Paragraph 1.01(f). The Premises will be conclusively
deemed "ready for occupancy" on the earlier to occur of when: (i) the work to be
done under this Paragraph has been substantially completed and after the
issuance of a conditional or temporary certificate of occupancy for the Premises
by the appropriate government agency within whose jurisdiction the Building is
located, or (ii) when Tenant takes possession of the Premises. The Premises will
not be considered unready or incomplete if only minor or insubstantial details
of construction, decoration or mechanical adjustments remain to be done within
the Premises or Common Areas of the Building, or if only landscaping or exterior
trim remains to be done outside the Premises, or if the delay in the
availability of the Premises for Tenant's occupancy is caused in whole or in
material part by Tenant. By occupying the Premises, Tenant will be deemed to
have accepted the Premises and to have acknowledged that they are in the
condition called for in this Lease, subject only to "punch list" items (as the
term "punch list" is customarily used in the construction industry in the area
where the Project is located) identified by Tenant by written notice delivered
to Landlord within thirty (30) days after the date Landlord tenders possession
of the Premises to Tenant. If in good faith Landlord is delayed or hindered in
construction by any labor dispute, strike, lockout, fire, unavailability of
material, severe weather, acts of God, restrictive governmental laws or
regulations, riots, insurrection, war or other casualty or events of a similar
nature beyond its reasonable control ("Force Majeure"), the date for the
delivery of the Premises to Tenant "ready for occupancy" shall be extended for
the period of delay caused by the Force Majeure. If Landlord is delayed or
hindered in construction as a result of change orders or other requests by, or
acts of, Tenant ("Tenant Delay") the date for the delivery of the Premises to
Tenant "ready for occupancy" shall be accelerated by the number of days of delay
caused by Tenant Delay. The Scheduled Occupancy Date as extended or accelerated
as a result of the occurrence of a Force Majeure or Tenant Delay or with the
consent of Tenant, is herein referred to as the Occupancy Date. In no event will
the Occupancy Date be deemed to have occurred prior to the date the Premises are
ready for occupancy unless there has been a Tenant Delay.
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SECTION 3.
THE TERM
3.01 The initial term of this Lease (the "Initial Term or "Term"") will
commence (the "Commencement Date") on the earlier of: (i) the date Tenant takes
possession of the Premises; or (ii) the Occupancy Date; or (iii) the date the
Occupancy Date would have occurred in the absence of Tenant Delay. Unless sooner
terminated or extended in accordance with the terms hereof, the Lease will
terminate the number of Lease Years and Months set forth in Paragraph 1.01(f)
after the Commencement Date. If the Commencement Date is other than the first
day of a calendar month, the first Lease Year shall begin on the first day of
the first full calendar month following the Commencement Date. Upon request by
Landlord, Tenant will execute a written instrument confirming the Commencement
Date and the expiration date of the Initial Term.
3.02 It is acknowledged that the Occupancy Date and the Commencement
Date are subject to Daimler Chrysler Financial Company agreeing to an early
termination of Suites M-170, M200, M202, M250 effective September 30, 2002; and
to the August 31, 2002 closing and early termination of Kosch Food Service in
Suite MZ-220, which will be relocated to the first floor. If the above
terminations are delayed beyond September 30, 2002, the Occupancy Date and
Commencement Date will be delayed one month for each month of delay beyond
September 30, 2002, but in no event will the delay cause the Occupancy Date and
Commencement Date to be later than May 1, 2003. IN THE EVENT THE OCCUPANCY DATE
DOES NOT OCCUR BY MAY 1, 2003, DUE TO A REASON OTHER THAN TENANT DELAY OR A
FORCE MAJEURE, THIS LEASE MAY BE TERMINATED BY TENANT BY THE DELIVERY OF WRITTEN
NOTICE(S) OF TERMINATION TO LANDLORD WITHIN FIVE (5) DAYS AFTER SUCH DATE, AND
BOTH PARTIES SHALL BE RELEASED FROM ALL OBLIGATIONS HEREUNDER, EXCEPT LANDLORD
SHALL PROMPTLY RETURN TO TENANT ANY AND ALL MONIES PAID BY TENANT TO LANDLORD.
SECTION 4.
THE BASE RENT
4.01 From and after the Commencement Date, Tenant agrees to pay to
Landlord, as minimum net rental for the Initial Term and Option Terms of this
Lease, the sum(s) set forth in Paragraph 1.01(g) (the "Base Rent"). The term
"Lease Year" as used herein shall be defined to mean a period of twelve (12)
consecutive calendar months. The first Lease Year shall begin on the date
determined in accordance with Section 3.01. Each succeeding Lease Year shall
commence on the anniversary date of the first Lease Year.
4.02 Base Rent and other sums due Landlord hereunder shall be paid by
Tenant to Landlord in equal monthly installments (except as otherwise provided
herein), in advance, without demand and without any setoffs or deductions
whatsoever, on the first day of each and every calendar month (the "Rent Day")
during the Initial Term and Option Terms, if any, at the office of Manager as
set forth in Section 1.01(c), or at such other place as Landlord from time to
time may designate in writing. In the event the Commencement Date is other than
the first day of a calendar month, the Base Rent for the partial first calendar
month of the Initial Term will be prorated on a daily basis based on the number
of days in the calendar month and will be paid in addition to the rent provided
in Paragraph 4.01 above. Base Rent for such partial calendar month and for the
first full calendar month of the first Lease Year shall be paid upon the
execution of this Lease by Tenant.
SECTION 5.
LATE CHARGES AND INTEREST
5.01 Any rent or other sums payable by Tenant to Landlord under this
Lease which are not paid within five (5) days after they are due and written
notice has been provided to Tenant (but if one notice has been given in any
twelve (12) month period, no further notice shall be required during such twelve
(12) month period), will be subject to a late charge of ten (10%) percent of the
amount due. Such late charges will be due and payable as additional rent on or
before the next Rent Day.
5.02 Any rent, late charges or other sums payable by Tenant to Landlord
under this Lease not paid within ten (10) days after the same are due will bear
interest at a per annum rate equal to the lower of: (i) Citibank
or its successor's Prime Rate plus two percent (2%) per annum, or (ii) the
highest rate permitted by law. Such interest will be due and payable as
additional rent on or before the next Rent Day, and will accrue from the date
that such rent, late charges or other sums are payable under the provisions of
this Lease until actually paid by Tenant.
5.03 Any default in the payment of rent, late charges or other sums
will not be considered cured unless and until the late charges and interest due
hereunder are paid by Tenant to Landlord. If Tenant defaults in paying such late
charges and/or interest, Landlord will have the same remedies as Landlord would
have if Tenant had defaulted in the payment of rent. The obligation hereunder to
pay late charges and interest will exist in addition to, and not in the place
of, the other default provisions of this Lease.
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SECTION 6.
OPERATING EXPENSES, UTILITIES, AND TAXES
6.06 Landlord agrees with Tenant that Landlord will furnish heat and
air conditioning during normal business hours (8:00 a.m. to 6:00 p.m. Monday
through Friday, excluding Building holidays), usual and customary janitorial
services, as set forth in Exhibit "C", and provide water and sewer service to
the Premises and hot and cold water for ordinary lavatory purposes in the common
area restrooms. However, if Tenant uses or consumes water for any other purpose
or in unusual quantities (of which fact Landlord shall be the sole judge)
Landlord may install a water meter at Tenant's expense which Tenant shall
thereafter maintain at Tenant's expense in good working order and repair, to
register such water consumption. Tenant shall pay for the quantity of water
shown on said meter, together with the sewer rents, debt service and other
charges made by the local utilities for water and sewer service, as additional
rent, at the secondary rate per gallon (general service rate) established by the
applicable governmental authority or the applicable utility company providing
the water. Whenever machines or equipment which generate heat are used in the
Premises which affect the temperature otherwise maintained by the
air-conditioning system, Landlord reserves the right to install supplementary
air-conditioning equipment in the Premises, and the cost thereof, and the
expense of operation and maintenance thereof, shall be paid by Tenant to
Landlord. Although Landlord will provide air-conditioning and/or heat upon the
prior request of Tenant in accordance with Building practices for hours other
than regular business hours, Tenant will pay Landlord's charges for providing
such service. Said charges shall include a cost equal to the cost to operate the
equipment for Tenant's expanded business hours and days, and Landlord's
maintenance, equipment amortization and other appropriate charges which Landlord
determines are attributable to operating the equipment for periods in excess of
the normal business hours described above.
6.07 Tenant shall pay all charges made against the Premises for
electricity used upon or furnished to the Premises as and when due during the
continuance of this Lease. To the extent electricity is not separately metered
for the Premises, Landlord shall make a determination of Tenant's usage of
electricity supplied to the Building, and Tenant agrees to pay for such
electricity within thirty (30) days after request therefor from Landlord.
Whether or not metered, Tenant shall pay for the electricity at the secondary
rate (general service rate) established by the applicable governmental authority
or the applicable utility company providing the electricity. Tenant shall also
pay for fluorescent or other electric light bulbs or tubes and electric
equipment used in the leased Premises.
SECTION 7.
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USE OF PREMISES
7.01 Tenant shall occupy and use the Premises during the Term for the
purposes set forth in Section 1.01(m) only, and for no other purpose without the
prior written consent of Landlord. Tenant agrees that it will not use or permit
any person to use the Premises or any part thereof for any use or purpose in
violation of the laws of the United States, the laws, ordinances or other
regulations of the State or municipality in which the Premises are located, or
of any other lawful authorities, or any building and use restrictions, now or
hereafter affecting the Premises or any part thereof.
7.02 Tenant will not do or permit any act or thing to be done in or to
the Premises or the Project which will invalidate or be in conflict with any
terms or conditions required to be contained in any property or casualty
insurance policy authorized to be issued in the State of Michigan or any term or
condition of the Insurance Services Office's (ISO) Commercial Property Insurance
and/or Commercial General Liability Insurance Conditions or any different or
additional terms and conditions of any insurance policy in effect on the
Premises or the Project from time to time (collectively the "Building
Insurance"), Nor shall Tenant do nor permit any other act or thing to be done in
or to the Premises or the Project which shall or might subject Landlord to any
liability or responsibility to any person or for property damage, nor shall
Tenant use the Premises or keep anything on or in the Project except as now or
hereafter permitted by the fire regulations, the fire department or zoning,
health, safety, land use or other regulations. Tenant, at Tenant's sole cost and
expense, shall comply with all requirements and recommendations set forth by any
property or casualty insurer or reinsurer providing coverage for the Premises or
the Project or by any person or entity engaged by Landlord or Manager to perform
any loss control, analysis or assessment for the Premises or the Project. Tenant
shall not do or permit anything to be done in or upon the Premises or the
Project or bring or keep anything therein or use the Premises or the Project in
a manner which increases the rate of premium for any Building Insurance or any
property or equipment located therein over the rate in effect at the
commencement of the Term of this Lease. In addition, Tenant agrees to pay
Landlord the amount of any increase in premiums for insurance which may be
charged during the term of this Lease resulting from the act or omissions of
Tenant or the character or nature of its occupancy or use of the Project or the
Premises, whether or not Landlord has consented to the same. Any scheduled or
"make-up" of any insurance rate for the Premises, the Building or the Project
issued by any insurance company establishing insurance premium rates for the
Premises, Building or the Project shall be prima facie evidence of the facts
therein stated and of the several items and charges in the insurance premium
rates then applicable to the Premises, the Building or the Project. Tenant shall
give Landlord notice promptly after Tenant learns of any accident, emergency, or
occurrence for which Landlord is or may be liable, or any fire or other casualty
or damage or defects to the Premises, the Building or the Project which Landlord
is or may be responsible or which constitutes the property of Landlord.
7.03 Tenant shall not perform acts or carry on any activities or engage
in any practices which may injure the Premises or any portion of the Project or
which may be a nuisance or menace to other persons on or in the Project. Tenant
shall pay all costs, expenses, fines, penalties, or damages which may be imposed
upon Landlord by reason of Tenant's failure to comply with the provisions of
this Section.
7.04 Tenant will not place any load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such items
shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance. If at any time any windows of the Premises are temporarily or
permanently closed, darkened or covered for any reason whatsoever, including
Landlord's own acts, Landlord shall not be liable for any damage Tenant may
sustain thereby, and the same shall not be considered a default under this Lease
and Tenant shall not be entitled to any compensation therefore nor abatement of
any Base Rent or any other sums due hereunder, nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction, construction, actual
or otherwise.
7.05 During the term hereof, and consistent with janitorial services
provided by Landlord, Tenant will keep the Premises in a clean and wholesome
condition, will use the same in a careful and proper manner, and generally will
comply with all laws, ordinances, orders and regulations affecting the Premises
and the cleanliness, safety, occupancy and use thereof. Tenant will not commit
waste in or on the Premises, and will use the Premises in accordance with the
Rules and Regulations of the Project, as set forth in Exhibit B, attached hereto
and made a part hereof.
7.06 As between Landlord and Tenant, Tenant shall be responsible for
any alterations, changes or improvements to the Premises which may be necessary
in order for the Premises and Tenant's use thereof to be in compliance with the
Americans with Disabilities Act of 1990 and its state and local counterparts or
equivalents (the "Disabilities Act") during the term of this Lease provided
Landlord shall be responsible for improvements to the Premises in accordance
with Section 2.04 and all improvements to the common areas necessary to comply
with the Disabilities Act.
7.07 For the purposes of this Lease, the term "Hazardous Materials"
shall mean, collectively, (i) any biological materials, chemicals, materials,
substances or wastes which are now or hereafter become defined as or included in
the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances",
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"toxic pollutants", or words of similar import, under any applicable
Environmental Law (as defined below) and (ii) any petroleum or petroleum
products and asbestos in any form that is or could become friable.
7.08 For the purposes of this Lease, the term "Environmental Laws"
shall mean all federal, state, and local laws, statutes, ordinances,
regulations, criteria, guidelines and rules of common law now or hereafter in
effect, and in each case as amended, and any judicial or administrative
interpretation thereof, including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases or Hazardous
Materials or otherwise related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
Environmental Laws include but are not limited to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended; the
Resource Conservation and Recovery Act, as amended; the Clean Air Act, as
amended; the Clean Water Act, as amended; and their state and local counterparts
or equivalents.
7.09 Tenant shall not (either with or without negligence) cause or
permit the escape, disposal or release of any Hazardous Materials. Tenant shall
not allow the storage or use of such Hazardous Materials on the Premises or the
Project in any manner prohibited by the Environmental Laws or by the highest
standards prevailing in the industry for the storage and use of such Hazardous
Materials, nor allow to be brought into the Premises or the Project any such
Hazardous Materials except to use in the ordinary course of Tenant's business,
and then only after written notice is given to Landlord of the identity of such
Hazardous Materials and Landlord consents in writing to the use of such
materials. Landlord shall have the right at any times during the term of this
Lease to perform assessments of the environmental condition of the Premises and
of Tenant's compliance with this Section 7.09. In connection with any such
assessment, Landlord shall have the right to enter and inspect the Premises and
perform tests (including physically invasive tests), provided such tests are
performed in a manner that minimizes disruption to Tenant. Tenant will cooperate
with Landlord in connection with any such assessment by, among other things,
responding to inquires and providing relevant documentation and records. Tenant
will accept custody and arrange for the disposal of any Hazardous Materials that
are required to be disposed of as a result of those tests. Landlord shall have
no liability or responsibility to Tenant with respect to any such assessment or
test or with respect to results of any such assessment or test. If any lender or
governmental agency shall ever require testing to ascertain whether or not there
has been any release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Premises or Tenant's activities on the Project.
If any inspection indicates any (i) non-compliance with any Environmental Law or
the highest standards prevailing in the industry for the storage and use of
Hazardous Materials; (ii) damage; or (iii) contamination, Tenant shall, at its
cost and expense, remedy such non-compliance, damage or contamination. In
addition, Tenant shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Tenant's best knowledge and belief
regarding the presence of Hazardous Materials on the Premises. Irrespective of
whether Landlord elects to inspect the Premises, if Hazardous Materials are
found on or about the Premises, Landlord shall have no responsibility, liability
or obligation whatsoever with respect to the existence, removal or
transportation of the Hazardous Material or the restoration and remediation of
the Premises. Tenant's obligations under this paragraph with respect to any
environmental condition shall not be applicable to the extent that such
environmental condition (a) exists prior to the commencement of the initial term
of this Lease or (b) results from (i) the actions or omissions of Landlord
either before the commencement of this Lease, during the term hereof or after
the termination of this Lease or (ii) the actions or omissions of any preceding
or succeeding tenant or owner of the Premises or (iii) the actions or omissions
of any person or entity who or which is not a subtenant, employee, agent,
invitee, customer, visitor, licensee, contractor or designee of Tenant. Further,
Landlord shall have the right to require Tenant to immediately terminate the
conduct of any activity in violation of the Environmental Law, the highest
standards prevailing in the industry for the storage and use of Hazardous
Materials or, if none exist, the standards determined by Landlord. Prior to any
inspection, Landlord shall provide Tenant reasonable prior notice except in an
emergency.
7.10 Tenant further agrees that it will not, by either action or
inaction, invite or otherwise cause agents or representatives of any federal,
state or local governmental agency to enter onto the Premises or the Project
and/or investigate the Premises or the Project. This agreement does not allow
Tenant to obstruct any such entry or investigation and the mere fact of a
regulatory agency entry or investigation without Tenant's involvement either by
action or inaction shall not be deemed a breach of this lease. Nothing set forth
in this paragraph shall prohibit Tenant from reporting any fact or condition
which Tenant has been advised it has a legal obligation to report provided
Tenant first notifies Landlord of such fact or condition and Tenant's intention
to report the fact or condition.
7.11 Tenant shall indemnify, hold harmless and defend Landlord, its
licensees, servants, agents, employees and contractors from any loss, damage,
claim, liability or expense (including reasonable attorney's fees) arising out
of the failure of the Premises or Tenant's use thereof to be in compliance with
Disabilities Act. Tenant shall not be required to indemnify, hold harmless or
defend Landlord for the failure, if any, of the common areas (including the
parking areas, ramps and walkways) to comply with the Disabilities Act. Tenant
shall indemnify, hold harmless and defend Landlord, its licensees, servants,
agents, employees and contractors for any loss, damage, claim, liability or
expense (including reasonable attorney's fees) arising out of any violation of
any Environmental Law(s) by Tenant or its responsible parties (as described in
Section 7.09 above) on the Premises or the Project which occurs after the date
hereof. Tenant shall notify Landlord as soon as possible after Tenant learns of
the existence of or potential for any such loss, damage, claim, liability or
expense arising out of any violation or suspected
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violation of any Environmental Law(s) or the Disabilities Act. In the event
Tenant refuses to address such violation or suspected violation within five (5)
days of such notice from Landlord, and, thereafter, to investigate such
violation or suspected violation, and promptly commence and diligently pursue
any action required to address such violation or suspected violation, Landlord
shall have the right, in addition to every other right and remedy it may have
hereunder, to terminate this Lease by giving ten (10) days prior written notice
thereof to Tenant, and upon the expiration of such ten (10) days, this Lease
shall terminate. The covenants set forth herein shall survive the expiration or
earlier termination of this Lease.
SECTION 8.
INSURANCE
8.01 Commencing on the Commencement Date, Tenant shall, during the Term
of this Lease, maintain in full force and effect policies of commercial general
liability insurance (including premises, operation, bodily injury, personal
injury, death, independent contractors, products and completed operations, broad
form contractual liability and broad form property damage coverage), in a
combined single limit amount of not less than Five Million Dollars ($5,000,000),
per occurrence (exclusive of defense costs), against all claims, demands or
actions with respect to damage, injury or death made by or on behalf of any
person or entity, arising from or relating to the conduct and operation of
Tenant's business in, on or about the Premises (which shall include Tenant's
signs, if any), or arising from or related to any act or omission of Tenant or
of Tenant's principals, officers, agents, contractors, servants, employees,
licensees and invitees. Whenever, in Landlord's reasonable judgment, good
business practice and changing conditions indicate a need for additional amounts
or different types of insurance coverage, Tenant shall, within ten (10) days
after Landlord's request, obtain such insurance coverage, at Tenant's sole cost
and expense. Landlord shall enforce such insurance coverage requirement in a
consistent non-discriminatory manner for all Tenants unless the changing
conditions relate only to the operation of Tenant's business.
8.02 Commencing on the Commencement Date, Tenant shall obtain and
maintain policies of workers' compensation and employers' liability insurance
which shall provide for statutory workers' compensation benefits and employers'
liability limits of not less than that required by law.
8.03 Commencing on the Commencement Date, Tenant shall obtain and
maintain insurance protecting and indemnifying Tenant against any and all damage
to or loss of any personal property, fixtures, leasehold improvements,
alterations, decorations, installations, repairs, additions, replacements or
other physical changes in or about the Premises, including but not limited to
the Tenant Improvements, and all claims and liabilities relating thereto, for
their full replacement value without deduction or depreciation. In addition, if
Tenant shall install or maintain one or more pressure vessels to serve Tenant's
operations on the Premises, Tenant shall, at Tenant's sole cost and expense,
obtain, maintain and keep in full force and effect appropriate boiler or other
insurance coverage therefore in an amount not less than One Million and No/100
Dollars ($1,000,000.00) (it being understood and agreed, however, that the
foregoing shall not be deemed a consent by Landlord to the installation and/or
maintenance of any such pressure vessels in the Premises, which installation
and/or maintenance shall at all times be subject to the prior written consent of
Landlord). All insurance policies required pursuant to this Paragraph 8.03 shall
be written on a so-called "all risk" form and shall be carried in sufficient
amount so as to avoid the imposition of any co-insurance penalty in the event of
a loss. Such insurance shall provide the broadest coverage then available,
including coverage for loss of profits or business income or reimbursement for
extra expense incurred as the result of damage or destruction to all or a part
of the Premises.
8.04 All insurance policies which Tenant shall be required to maintain
pursuant to this Section 8 shall, in addition to any of the foregoing: be
written by insurers which have an A.M. Best & Company rating of "A-", Class "X",
or better and who are authorized to write such business in the State of Michigan
and are otherwise satisfactory to Landlord; be written as "occurrence" policy;
be written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord or any ground or building lessor may carry; name
Landlord, the Manager, and Landlord's mortgagee and ground or building lessor,
if any, as additional insureds; be endorsed to provide that they shall not be
cancelled, failed to be renewed, diminished or materially altered for any reason
except on thirty (30) days prior written notice to Landlord and the other
additional insureds; and provide coverage to Landlord, Landlord's property
management company, and Landlord's mortgagee whether or not the event or
occurrence giving rise to the claim is alleged to have been caused in whole or
in part by the acts or negligence of Landlord, Landlord's property management
company, or Landlord's mortgagee. Certificates of Insurance evidencing such
coverage will be delivered by Tenant to Landlord at least ten (10) days prior to
their effective date thereof, together with receipts evidencing payment of the
premiums therefor. Tenant will deliver certificates of renewal for such policies
to Landlord not less than thirty (30) days prior to the expiration dates
thereof. No such policy shall contain a deductible or self insured retention
greater than $5,000.00 per claim, nor shall any such policy be the subject of an
indemnification or other arrangement by which any insured is obligated to repay
any insurer with respect to loss occurring on the Premises.
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8.05 If Tenant fails to provide all or any of the insurance required by
this Section 8 or subsequently fails to maintain such insurance in accordance
with the requirements hereof, then after giving one (1) business days written
notice to Tenant, Landlord may (but will not be required to) procure or renew
such insurance to protect its own interests only, and any amounts paid by
Landlord for such insurance will be additional rental due and payable on or
before the next Rent Day, together with late charges and interest as provided in
Section 5 hereof. Landlord and Tenant agree that no insurance acquired by
Landlord pursuant hereto shall cover any interest or liability of Tenant and any
procurement by Landlord of any such insurance or the payment of any such
premiums shall not be deemed to waive or release the default of Tenant with
respect thereto.
SECTION 9.
DAMAGE BY FIRE OR OTHER CASUALTY
9.01 It is understood and agreed that if, during the Term hereof, the
Project and/or the Premises shall be damaged or destroyed in whole or in part by
fire or other casualty, without the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors, invitees or licensees, which damage is
covered by insurance carried pursuant to Section 8 above, unless Landlord elects
to terminate this Lease as provided in Paragraph 9.02 below, Landlord shall
cause the Project and/or the Premises to be repaired and restored to good,
tenantable condition with reasonable dispatch at its expense; provided, however,
Landlord shall not be obligated to expend for such repair or restoration an
amount in excess of insurance proceeds made available to Landlord for such
purpose, if any. Landlord's obligation hereunder shall be limited to repairing
or restoring the Project and/or the Premises to substantially the same condition
that existed prior to such damage or destruction.
9.02 If (i) more than fifty (50%) percent of the floor area of the
Premises shall be damaged or destroyed, (ii) more than twenty-five (25%) percent
of the Project shall be damaged or destroyed, or (iii) any material damage or
destruction occurs to the Premises or the Project during the last twelve (12)
months of the Initial Term or Option Term, as the case may be, then Landlord may
elect to either terminate this Lease or repair and rebuild the Premises. In
order to terminate this lease pursuant to this Paragraph, Landlord must give
written notice to Tenant of its election to so terminate, such notice to be
given within ninety (90) days after the occurrence of damage or destruction
fitting the above description, and thereupon the term of this Lease shall expire
by lapse of time ten (10) days after such notice is given and Tenant shall
vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant. Tenant
acknowledges that Landlord will not carry insurance on Tenant's furniture and/or
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Landlord will not be obligated to repair any
damage thereto or replace the same.
9.03 Tenant shall give immediate notice to Landlord in case of fire or
accident at the Premises. If Landlord repairs or restores the Premises as
provided in Paragraph 9.01 above, Tenant shall promptly repair or replace its
trade fixtures, furnishings, equipment, personal property and leasehold
improvements in a manner and to a condition equal to that existing prior to the
occurrence of such damage or destruction.
9.04 If the casualty, or the repairing or rebuilding of the Premises
pursuant to Paragraphs 9.01 and 9.02 above shall render the Premises
untenantable, in whole or in part, a proportionate abatement of the rent due
hereunder shall be allowed from the date when the damage occurred until the date
Landlord completes the repairs on the Premises or, in the event Landlord elects
to terminate this Lease, until the date of termination. Such abatement shall be
computed on the basis of the ratio of the floor area of the Premises rendered
untenantable to the entire floor area of the Premises.
9.05 Tenant shall not entrust any property to any employee, contractor,
licensee, or invitee of Landlord. Any person to whom any property is entrusted
by or on behalf of Tenant in violation of foregoing prohibition shall be deemed
to be acting as Tenant's agent with respect to such property and neither
Landlord nor its agents shall be liable for any damage to property of Tenant or
of others entrusted to employees of the Project, nor shall Landlord or its
agents be liable for any such damage caused by other tenants or persons in, upon
or about the Project or caused by operations or construction of any private,
public or quasi-public work.
SECTION 10.
REPAIRS, RENOVATIONS AND ALTERATIONS
10.01 Tenant shall, at Tenant's sole expense, keep the interior of the
Premises and the fixtures therein in good condition, reasonable wear and tear
and damage from insured casualty excepted, and will also repair all damage or
injury to the Premises and fixtures resulting from the carelessness, omission,
neglect or other action or inaction of Tenant, its servants, employees, agents,
visitors, invitees or licensees. Such damage shall be promptly repaired or
damaged items replaced by Tenant, at its sole expense, to the satisfaction of
Landlord. If Tenant fails to make such repairs or replacements, Landlord
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after providing ten (10) days notice thereby allowing Tenant an opportunity for
Tenant to cure, except in an emergency, may do so and the cost thereof shall
become collectible as additional rent hereunder and shall be paid by Tenant
within thirty (30) days after presentation of statement therefor. Landlord shall
maintain, and shall make all necessary repairs and replacements to, the
Building, the heating, air conditioning and electrical systems located therein,
and the Common Areas, provided that at Landlord's option, (i) Tenant shall make
all repairs and replacements arising from its act, neglect or default and that
of its agents, servants, employees, invitees and licensees, or (ii) Landlord may
make such repairs and replacements and the costs thereof shall become
collectable as additional rent hereunder and shall be paid by Tenant within
thirty (30) days after presentation of a statement therefore. Tenant shall keep
and maintain the Premises in a clean, sanitary and safe condition, and shall
keep and maintain the interior of the Premises in full compliance with the laws
of the United States and State of Michigan, all directions, rules and
regulations of any health officer, fire marshal, building inspector, or other
proper official of any governmental agency having jurisdiction over the
Premises, and the requirements of Landlord's mortgagee, all at Tenant's full
cost and expense, and Tenant shall comply with all requirements of law,
ordinance and regulation affecting the Premises. Tenant shall make all
non-structural repairs to the Premises as and when needed to preserve them in
good order and condition. All the aforesaid repairs shall be of quality or class
equal to the original construction. Tenant shall give Landlord prompt written
notice of any defective condition in any plumbing, heating system or electrical
lines located in, servicing or passing through the Premises and following such
notice, Landlord shall remedy the condition with due diligence but at the
expense of Tenant if repairs are necessitated by damage or injury attributable
to Tenant, Tenant's servants, agents, employees, invitees or licensees. There
shall be no allowance to Tenant for diminutions of rental value and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord, Tenant, or others making or failing to make any
repairs, alterations, additions, or improvements in or to any portion of the
Building or the Premises or in and to the fixtures, appurtenances or equipment
thereof. The provisions of this Section 10 with respect to the making of repairs
shall not apply in the case of fire or other casualty which are dealt with in
Section 9 hereof.
10.02 Tenant shall not make any renovations, alterations, additions or
improvements to the Premises without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. All plans and
specifications for such renovations, alterations, additions or improvements
shall be approved by Landlord prior to commencement of any work. Landlord's
approval of the plans, specifications and working drawings for Tenant's
alterations shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with laws, rules and
regulations of governmental agencies or authorities, including but not limited
to the Americans with Disabilities Act, as amended. All renovations,
alterations, additions or improvements made by Tenant upon the Premises, except
for movable office furniture and movable trade fixtures installed at the expense
of Tenant, shall be and shall remain the property of Landlord, and shall be
surrendered with the Premises at the termination of this Lease, without
molestation or injury. In addition, Landlord may designate by written notice to
Tenant the alterations, additions, improvements and fixtures made by or for
Tenant, which shall be removed by Tenant at the expiration or termination of the
Lease and Tenant shall promptly remove the same and repair any damage to the
Premises caused by such removal.
10.03 Tenant agrees that all renovations, alterations, additions and
improvements made by it pursuant to Paragraph 10.02, notwithstanding Landlord's
approval thereof, shall be done in a good and workmanlike manner and in
conformity with all guidelines provided by Landlord and all laws, ordinances and
regulations of all public authorities having jurisdiction, that materials of
good quality shall be employed therein, that the structure of the Premises shall
not be impaired thereby, that the work shall be carried out and completed in an
orderly, clean and safe manner, and that, while the work is being performed,
Tenant shall maintain builder's risk insurance coverage with Landlord as a named
insured, which insurance coverage shall meet the criteria set forth in Section
8.
SECTION 11.
LIENS
11.01 Tenant will keep the Premises free of liens of any sort and will
hold Landlord harmless from any liens which may be placed on the Premises except
those attributable to debts incurred by Landlord. In the event a construction or
other lien shall be filed against the Building, the Premises or Tenant's
interest therein as a result of any work undertaken by Tenant or its employees,
agents, contractors or subcontractors, or as a result of any repairs or
alterations made by or any other act of Tenant or its employees, agents,
contractors or subcontractors, Tenant shall, within five (5) business days after
receiving notice of such lien, discharge such lien either by payment of the
indebtedness due the lien claimant or by filing a bond (as provided by statute)
as security for the discharge of such lien. In the event Tenant shall fail to
discharge such lien, Landlord shall have the right to procure such discharge by
filing such bond, and Tenant shall pay the cost of such bond to Landlord as
additional rent upon the next Rent Day in accordance with Section 5 hereof.
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SECTION 12.
EMINENT DOMAIN
12.01 If all of the Premises are condemned or taken in any manner
(including without limitation any conveyance in lieu thereof) for any public or
quasi-public use, the term of this Lease shall cease and terminate as of the
date title is vested in the condemning authority. If (i) more than fifty (50%)
percent of the floor area of the Premises shall be condemned or taken in any
manner, or (ii) more than twenty-five (25%) percent of the Building shall be
condemned or taken, or (iii) any material condemnation or taking occurs during
the last twelve (12) months of the Initial Term or Option Term, as the case may
be, or (iv) such a portion of the parking area on the Land is so condemned or
taken that the number of parking spaces remaining are less than the number
required by applicable zoning laws or other building code for the Building, then
Landlord may elect to terminate this Lease. In order to terminate this Lease
pursuant to this Paragraph, Landlord must give Tenant written notice of its
election to so terminate, such notice to be given not later than ninety (90)
days after the completion of such condemnation or taking, and thereupon the term
of this Lease shall expire on the date set forth in such notice, and Tenant
shall vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant.
12.02 If this Lease is not terminated following such a condemnation or
taking, Landlord, as soon as reasonably practicable after such condemnation or
taking and the determination and payment of Landlord's award on account thereof,
shall expend as much as may be necessary of the net amount which is awarded to
Landlord and released by Landlord's mortgagee, if any, in restoring, to the
extent originally constructed by Landlord (consistent, however, with zoning laws
and building codes then in existence), so much of the Building as was originally
constructed by Landlord to an architectural unit as nearly like its condition
prior to such taking as shall be practicable; provided, however, Landlord shall
not be obligated to expend for such restoration an amount in excess of
condemnation proceeds made available to Landlord, if any. Landlord's obligation
hereunder shall be limited to restoring the Building and/or the Premises to
substantially the same condition that existed prior to such condemnation or
taking.
12.03 If this Lease is not terminated pursuant to Paragraph 12.01, the
Base Rent and other sums payable by Tenant hereunder, as adjusted as provided
herein, shall be reduced in proportion to the reduction in area of the Premises
by reason of the condemnation or taking. If this Lease is terminated pursuant to
Paragraph 12.01, the minimum net rental and other charges which are the
obligation of Tenant hereunder shall be apportioned and prorated accordingly as
of the date of termination.
12.04 The whole of any award or compensation for any portion of the
Premises taken, condemned or conveyed in lieu of taking or condemnation,
including the value of Tenant's leasehold interest under the Lease, shall be
solely the property of and payable to Landlord. Nothing herein contained shall
be deemed to preclude Tenant from seeking, at its own cost and expense, an award
from the condemning authority for loss of its business, the value of any trade
fixtures or other personal property of Tenant in the Premises or moving
expenses, provided that the award for such claim or claims shall not be in
diminution of the award made to Landlord.
SECTION 13.
ASSIGNMENT OR SUBLETTING
13.01 Tenant agrees not to assign or in any manner transfer this Lease
or any interest in this Lease without the prior written consent of Landlord, and
not to sublet the Premises or any part of the Premises or to allow anyone to use
or to come in, through or under the Premises without Landlord's consent. Any
attempted subletting or assignment without Landlord's consent shall be voidable
in Landlord's sole discretion and, at Landlord's option, shall grant Landlord
the right to terminate this Lease or to exercise any of the other rights or
remedies it may have hereunder. If consented to, no assignment or subletting
shall be binding upon Landlord unless the sublessee or assignee shall deliver to
Landlord an instrument (in recordable form, if Landlord so requests) containing
an agreement of assumption of all of Tenant's obligations under this Lease. In
no event may Tenant assign, sublet or otherwise transfer this Lease or any
interest in this Lease at any time while an Event of Default exists hereunder.
Landlord may, in its sole discretion, refuse to give its consent to any proposed
subletting or assignment or exercise its other rights hereunder for any reason,
including, but not limited to, the financial condition, creditworthiness or
business reputation of the proposed sublessee or assignee, the prevailing market
or quoted rental rates for space in the Building or other comparable buildings,
and the proposed use of the Premises by, or business of, the proposed sublessee
or assignee. One consent by Landlord to a subletting or assignment will not be
deemed a consent to any subsequent assignment, subletting, occupation or use by
any other person. Neither the consent to any assignment or subletting nor the
acceptance of rent from an assignee, subtenant or occupant will constitute a
release of Tenant from the further performance of the obligations of Tenant
contained in this Lease. A dissolution, merger, consolidation, or other
reorganization of Tenant and the issuance or transfer of twenty (20%) percent or
more of the voting capital of Tenant to persons other than shareholders as of
the beginning of such period within any twelve (12) month period, shall each be
deemed to be an assignment of this Lease, and as such, prohibited without
Landlord's prior written consent. Notwithstanding anything in this paragraph to
the contrary, Landlord shall allow the occupancy of
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the Premises by Tenant's parent company or a subsidiary or an affiliate which is
wholly owned by Tenant (the "Related Entity"), or the assignment of this Lease
or the subletting of all or a portion of the Premises to a Related Entity
provided that: (i) Tenant shall give written notice to Landlord at least sixty
(60) days prior to said proposed occupancy, assignment or subletting setting
forth the terms thereof together with such financial and other information
Landlord may request; and (ii) any such occupancy, assignment or subletting
shall not constitute a release of Tenant from the further performance of the
obligations of Tenant contained in this Lease; and (iii) any such occupancy,
assignment or subletting shall be subject to Sections 13.03 and 13.04.
13.02 In the event Tenant desires to sublet all or a portion of the
Premises or assign this Lease, Tenant shall give notice to Landlord setting
forth the terms of the proposed subletting or assignment together with such
financial and other information Landlord may request. Landlord shall have the
right, exercisable by written notice to Tenant within thirty (30) days after
receipt of Tenant's notice, (i) to consent or refuse to consent thereto in
accordance with Paragraph 13.01 above, or (ii) to terminate this Lease which
termination may, in Landlord's sole discretion, be conditioned upon Landlord and
the proposed subtenant/assignee entering into a new Lease. However, in the event
Landlord desires to elect to terminate this Lease, it shall first notify Tenant
of its desire whereupon Tenant may withdraw the request within ten (10) days
after Landlord's notice by the delivery of written withdrawal thereof to
Landlord whereupon Landlord shall withdraw its recapture option and Tenant shall
remain fully obligated under this Lease.
13.03 Upon the occurrence of an Event of Default, as defined under
Section 18, if all or any part of the Premises are then sublet or assigned,
Landlord, in addition to any other remedies provided by this Lease or by law,
may, at its option, collect directly from the sublessee or assignee all rent
becoming due to Landlord by reason of the subletting or assignment. Any
collection by Landlord from the sublessee or assignee shall not be construed to
constitute a waiver or release of Tenant from the further performance of its
obligations under this Lease or the making of a new Lease with such sublessee or
assignee.
13.04 In the event Tenant shall sublet all or a portion of the Premises
or assign this Lease, all of the sums of money or other economic consideration
received by Tenant or its affiliates, directly or indirectly, as a result of
such subletting or assignment, whether denominated as rent or otherwise, which
exceed in the aggregate the total sums which Tenant is obligated to pay Landlord
under this Lease (prorated to reflect obligations allocable to that portion of
the Premises subject to such sublease) shall be payable to Landlord as
additional rent under this Lease without effecting or reducing any other
obligation of Tenant hereunder.
SECTION 14.
INSPECTION OF PREMISES
14.01 Tenant agrees to permit Landlord to enter the Premises for the
purpose of inspecting the same and to show same to prospective purchasers,
tenants or mortgagees of the Project, and to make such repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable, and
Landlord shall be allowed to take all material into and upon the Premises that
may be required therefor without the same constituting an eviction of Tenant in
whole or in part and the rent reserved shall in no way abate while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. Landlord will give Tenant
reasonable notice prior to an entry by Landlord pursuant to this Section 14.01,
except in the case of emergencies in which event no notice need be given.
SECTION 15.
FIXTURES AND EQUIPMENT
15.01 All fixtures and equipment paid for by Landlord and all fixtures
and equipment which may be paid for and placed on the Premises by Tenant from
time to time but which are so incorporated and affixed to Premises that their
removal would involve damage or structural change to Premises will be and remain
the property of Landlord.
15.02 All tenant furnishings, office equipment and tenant fixtures
(other than those specified in Sections 10.02 and 15.01), which are paid for and
placed on the Premises by Tenant from time to time (other than those which are
replacements for fixtures originally paid for by Landlord) will remain the
property of Tenant.
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SECTION 16.
PARKING AREAS
16.01 Tenant and its agents, employees, customers, licensees and
invitees shall have the non-exclusive right to use in common with Landlord and
all other tenants and occupants of the Building and their respective agents,
employees, customers, licensees and invitees, the Common Area parking and
loading dock facilities, if any, on the Land, and all driveways, entrances and
exits located within the Project necessary to provide a means of ingress and
egress to and from the Premises. Such use of parking facilities shall be subject
to, and consistent with, the Rules and Regulations of the Project (as set forth
in Exhibit B), together with such reasonable modifications and additions as may
be made thereto during the term of this Lease. Landlord shall designate the
number of parking spaces set forth in Paragraph 1.01(i) in the parking lot of
the Project for the exclusive use of Tenant (the "Tenant's Designated Parking
Spaces"). Tenant shall pay Landlord, as additional rent on each Rent Day, an
amount set forth in Section 1.01(i). Such sums may be increased by Landlord from
time to time by the delivery of thirty (30) days prior written notice to Tenant.
Within thirty (30) days of receipt of such notification, Tenant may: (i) accept
such increase; or (ii) reject such increase for all or any of its exclusive
spaces, in which event Tenant's exclusive parking rights for such spaces shall
terminate. If Tenant accepts such increase or fails to reject such increase
within the thirty (30) day period, then commencing with the next Rent Day
following Landlord's notice, the amount of additional rent payable hereunder
shall be increased accordingly. Notwithstanding anything contained herein to the
contrary, Landlord shall have the right to relocate Tenant's Designated Parking
Spaces within the parking lot of the Project, and Landlord shall have the right
to designate other parking spaces in the parking lot for the exclusive use of
others. Tenant agrees to be bound by parking regulations in effect at the
Project, together with reasonable modifications or additions as may be necessary
during the term of this Lease, as more fully described in Exhibit "B", attached
hereto and made part hereof.
SECTION 17.
NOTICE OR DEMANDS
17.01 All bills, notices, requests, statements, communications, or
demands (collectively, "notices or demands") to or upon Landlord or Tenant
desired or required to be given under any of the provisions hereof must be in
writing. Any such notices or demands from Landlord to Tenant will be deemed to
have been duly and sufficiently given if a copy thereof has been personally
delivered, mailed by United States certified mail, return receipt requested,
postage prepaid, or sent via overnight courier service to Tenant at the address
of the Premises or at such other address as Tenant may have last furnished in
writing to Landlord for such purpose. Any such notices or demands from Tenant to
Landlord will be deemed to have been duly and sufficiently given if delivered to
Landlord in the same manner as provided above at the address set forth at the
heading of this Lease or at the address last furnished by written notice from
Landlord to Tenant. The effective date and the delivery date of such notice or
demand will be deemed to be the time when it is personally delivered, three (3)
days after it is mailed or the day after it is sent via overnight courier as
herein provided.
SECTION 18.
BREACH; INSOLVENCY; RE-ENTRY
18.01 Each of the following shall constitute an Event of Default under
this Lease: (i) Tenant's failure to pay rent or any other sum payable hereunder
for more than five (5) business days after written notice of such failure has
been delivered to Tenant (but if one notice has been given in any twelve (12)
month period, no further notice shall be required during such twelve (12) month
period); (ii) Tenant's failure to perform any of the non-monetary terms,
conditions or covenants of this Lease to be observed or performed by Tenant for
more than seven (7) business days after written notice of such failure shall
have been delivered to Tenant except in connection with a breach which cannot be
remedied or cured within said seven (7) business day period, in which event the
time of Tenant within which to cure such breach shall be extended for such time
as shall be necessary to cure the same, but only if Tenant, within such seven
(7) business day period, shall have commenced and diligently proceeded to remedy
or cure such breach; (iii) if Tenant is named as the debtor in any bankruptcy
proceeding, or similar debtor proceeding, and any such proceeding, if
involuntary, is not dismissed or set aside within sixty (60) days from the date
thereof; (iv) if Tenant makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement with creditors or if a receiver of
any property of Tenant in or upon the Premises is appointed in any action, suit
or proceeding by or against Tenant, or if Tenant shall admit to any creditor or
to Landlord that it is insolvent, or if the interest of Tenant in the Premises
shall be sold under execution or other legal process; or (v) if Tenant shall
suffer this Lease to be taken under any writ of execution. Upon the occurrence
of any Event of Default and after the delivery of written notice thereof to the
extent required under applicable Michigan law, Landlord, in addition to any
other rights and remedies it
13
may have hereunder or by law, shall have the immediate right of re-entry, and
may remove all persons and property from the Premises and it shall have the
right to abandon or otherwise dispose of such property in any way it may deem
fit which is not in contravention of applicable law. In addition, Landlord shall
have the right, but not the obligation, to store all or some of the property
which may have been removed 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 all without being deemed guilty of trespass or becoming liable for
any loss or damage which may be occasioned thereby.
18.02 In the event Landlord shall elect to re-enter the Premises in
accordance with Paragraph 18.01, or should Landlord take possession of Premises
pursuant to legal proceedings or pursuant to any notice provided by law,
Landlord may either terminate this Lease or may from time to time without
terminating this Lease, make such alterations and repairs as Landlord may deem
necessary in order to relet the Premises, and relet the Premises or any part
thereof for any such term or terms (which may be for a term extended beyond the
term of this Lease) and at such rental or rentals, and upon such other terms and
conditions as Landlord may deem advisable.
18.03 Upon the reletting of the Premises in accordance with Paragraph
18.02, all rentals received by Landlord from such reletting shall be applied in
the following order of priority: (a) to the payment of any additional rent
payable as provided in Section 5 hereof, including interest and late charges;
(b) to the payment of any other indebtedness other than rent due hereunder from
Tenant to Landlord; (c) to the payment of the actual costs and expenses of
obtaining possession, restoring and repairing the Premises and the actual costs
and expenses of reletting, including brokerage and attorneys' fees; and (d) to
the payment of any rent and other sums due and unpaid under this Lease. The
remainder, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If the rental received
from such reletting during any month is less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord
monthly. No such re-entry or taking possession of the Premises or any part
thereof by Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
18.04 Notwithstanding any reletting of the Premises without termination
in accordance with Paragraph 18.02, Landlord may at any time after the
occurrence of any Event of Default, terminate this Lease and, in addition to any
other remedies Landlord may have, Landlord may recover from Tenant all damages
it may incur by reason of Tenant's breach, including, without limitation, the
reasonable cost of recovering and reletting the Premises and reasonable
attorneys' fees incidental thereto and the worth at the time of the termination
of the amount of rent and other charges payable hereunder for the remainder of
the Term, all of which amounts shall be immediately due and payable by Tenant to
Landlord.
18.05 In case suit shall be brought or an attorney otherwise consulted,
for recovery of possession of the leased premises, for the recovery of rent or
any other amount due under the provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of Tenant to be kept
and performed, or any other action against Tenant by Landlord, or because of any
claimed breach of this Lease by Landlord or any other action against Landlord by
Tenant, (and Landlord shall be the prevailing party), Tenant shall pay to
Landlord all expenses incurred therefor, including a reasonable attorneys' fee.
In addition, Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Landlord or Tenant against the other on
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord to Tenant, the use or occupancy of the Premises by
Tenant or any person claiming through or under Tenant, any claim of injury or
damage, and any emergency or other statutory remedies; provided, however, the
foregoing waiver shall not apply to any action for personal injury or property
damage.
18.06 Landlord and Tenant shall each use reasonable efforts to mitigate
any damages resulting from a default of the other party under this Lease.
Landlord's obligation to mitigate damages after a default by Tenant under this
Lease shall be satisfied in full if Landlord undertakes to lease the Premises to
another tenant (the "Substitute Tenant") in accordance with the following
criteria:
(i) Landlord shall have no obligation to solicit or entertain
negotiations with any other prospective Substitute Tenant for the Premises until
Landlord obtains full and complete possession of the Premises, including,
without limitation, the absolute right to relet the Premises free of any claim
of Tenant.
(ii) Landlord may give priority to lease any or all available
space(s) in the Project before offering the Premises to a Substitute Tenant.
(iii) Landlord shall not be obligated to lease the Premises to
a Substitute Tenant for a rental less than the current fair market rental then
prevailing for similar space in comparable properties in the same sub-market as
the Building, nor shall Landlord be obligated to enter into a lease under other
terms and conditions that are unacceptable to Landlord under Landlord's then
current leasing policies for comparable space in the Building.
(iv) Landlord shall not be obligated to enter into a lease
with any proposed Substitute Tenant whose use would:
A. Disrupt the tenant mix of the Building;
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B. Violate any restriction, covenant, or
requirement contained in the lease of
another tenant of the Building or Project;
C. Adversely affect the reputation of the
Building or the Project; or
D. Be incompatible with the tenancy or use of
the Building as a first class office
building.
(v) Landlord shall not be obligated to enter into a lease with
any proposed Substitute Tenant which does not have, in Landlord's reasonable
opinion, sufficient financial resources to lease the Premises.
(vi) Landlord shall not be required to expend any amount of
money to alter, remodel, or otherwise make the Premises suitable for use by a
proposed Substitute Tenant unless:
A. Tenant pays any such sum to Landlord in
advance of Landlord's execution of a
lease with a Substitute Tenant (which
payment shall not be in lieu of any
damages or other sums to which Landlord
may be entitled as a result of Tenant's
default under this Lease); or
B. Landlord, in Landlord's reasonable
discretion, determines that any such
expenditure is financially justified
in connection with entering into a lease
with such Substitute Tenant.
Upon compliance with the above criteria regarding releasing of the Premises
after a default by Tenant, Landlord shall be deemed to have fully satisfied
Landlord's obligation to mitigate damages under this Lease and under any law or
judicial ruling in effect on the date of this Lease or at the time of Tenant's
default, and Tenant waives and releases, to the fullest extent legally
permissible, any right to assert in any action by Landlord to enforce the terms
of this Lease, any defense, counterclaim, or rights of setoff or recoupment
respecting the mitigation of damages by Landlord, unless and to the extent
Landlord fails to act in accordance the requirements of this section.
SECTION 19.
SURRENDER OF PREMISES ON TERMINATION
19.01 At the expiration (or earlier termination) of the Term hereof,
Tenant will surrender the Premises broom clean and in as good condition and
repair as they were at the time Tenant took possession, reasonable wear and tear
and damages for insured casualty excepted, and promptly upon surrender will
deliver all keys and building security cards for the Premises to Landlord at the
place then fixed for the payment of rent. At the expiration of the Lease term,
Tenant will, at its own cost and expense, repair or pay the cost of restoration
with respect to any damage to the Premises arising from the removal of any trade
fixtures or similar items. Tenant shall have no rights of removal as to property
affixed or otherwise placed on or in the Premises by or at the expense of
Landlord, its predecessors, successors or assigns. All costs and expenses
incurred by Landlord in connection with repairing or restoring the Premises to
the condition called for herein, together with the costs, if any, of removing
any property of Tenant together with any property designated by Landlord
pursuant to Section 10.02, left on the Premises, shall be paid by Tenant on
demand. Tenant shall remove all property of Tenant and make all repairs
necessitated thereby at its own cost, as directed by Landlord. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the Term of this Lease.
SECTION 20.
PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT
20.01 If Tenant fails to pay any sum of money, other than Base Rent,
required to be paid hereunder or fails to perform any act on its part to be
performed hereunder, including, but not limited to, the performance of all
covenants pertaining to the condition and repair of the Premises pursuant to
Section 10 above, and if such failure shall not otherwise be cured within the
time, if any, provided herein, then upon five (5) business days notice Landlord
may (but shall not be required to), without waiving or releasing Tenant from any
of Tenant's obligations, make any such payment or perform any such other act.
All sums so paid or incurred by Landlord and all incidental costs, including,
but not limited to, the cost of repair, maintenance or restoration of the
Premises, shall be deemed additional rental and, together with interest thereon
computed at the rate set forth in Section 5 hereof from the date of payment by
Landlord until the date of repayment by Tenant to Landlord, shall be payable to
Landlord on demand. On default in such payment, Landlord shall have the same
remedies as on default in payment of rent. The rights and remedies granted to
Landlord under this Section 20 shall be in addition to, and not in lieu of, all
other remedies, if any, available to Landlord under this Lease or otherwise, and
nothing contained herein shall be construed to limit such other remedies of
Landlord with respect to any matters covered herein.
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SECTION 21.
SUBORDINATION; ESTOPPEL CERTIFICATES
21.01 This Lease is subject and subordinate to all ground leases,
underlying leases, and mortgages, if any, now or hereafter made, which may now
or hereafter affect the Project and to all renewals, modifications,
consolidations, replacements and extensions of any such ground leases,
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be necessary. Notwithstanding the
foregoing, Landlord reserves the right to declare this Lease prior to the lien
of any ground lease, underlying lease, or mortgage now or hereinafter placed
upon the real property of which the Premises are a part by recording a written
notice of such priority with the register of deeds. Tenant covenants and agrees
to execute and deliver, within ten (10) days after requested by Landlord, such
further instrument or instruments subordinating this Lease (or declaring the
Lease prior and superior) to any lease or proposed lease or to the lien of any
such mortgage or mortgages as shall reasonably be desired by Landlord, any
lessor or proposed lessor, and any mortgagees or proposed mortgagees.
21.02 In the event any proceedings are brought for foreclosure of, or
in the event of the conveyance by deed in lieu of foreclosure of, or in the
event of the exercise of the power of sale under, any mortgage made by Landlord
covering the Premises, Tenant hereby attorns to the new owner, and covenants and
agrees to execute any instrument in writing reasonably satisfactory to the new
owner, whereby Tenant attorns to such successor in interest and recognizes such
successor as Landlord under this Lease.
21.03 Tenant, within ten (10) days after request (at any time or times)
by Landlord, will execute and deliver to Landlord an estoppel certificate, in
form reasonably acceptable to Landlord, certifying: (i) to the Commencement Date
and expiration date of the Term; (ii) that this Lease is unmodified and in full
force and effect, or is in full force and effect as modified, stating the
modifications; (iii) that Tenant does not claim that Landlord is in default in
any way, or listing any such claimed defaults and that Tenant does not claim any
rights of setoff, or listing such rights of setoff; (iv) to the amount of
monthly rent and other sums due hereunder as of the date of the certificate, the
date to which the rent has been paid in advance, and the amount of any security
deposit or prepaid rent; (v) that Tenant agrees to provide any mortgagee of
Landlord with notice of any default by Landlord hereunder and give such
mortgagee the opportunity to cure such default within sixty (60) days of such
mortgagee's receipt of notice of such default; and (vi) such other matters as
may be reasonably requested by Landlord. Any such certificate may be relied upon
by any prospective purchaser, mortgagee or lessor of the Premises or any part
thereof.
SECTION 22.
QUIET ENJOYMENT
22.01 Landlord agrees that at all times when no Event of Default exists
under this Lease, Tenant's quiet and peaceable enjoyment of the Premises, in
accordance with and subject to the terms of this Lease, will not be disturbed or
interfered with by Landlord or any person claiming by, through, or under
Landlord.
SECTION 23.
HOLDING OVER
23.01 If Tenant remains in possession of the Premises after the
expiration of this Lease without executing a new lease, Landlord shall have the
right to deem Tenant to be occupying the Premises as a tenant from month to
month and the Base Rent for each month will be one hundred fifty percent (150%)
of the greater of: (a) the regular monthly installment of Base Rent payable for
the last month of the Term of this Lease; or (b) the then prevailing market
rates of rent for the Project determined by Landlord in its sole and absolute
discretion. This provision shall not preclude Landlord from terminating the
lease or recovering any and all damages Landlord may incur as a result of
Tenant's failure to timely deliver possession of the Premises to Landlord or
from exercising any other right or remedy it may have hereunder.
SECTION 24.
REMEDIES NOT EXCLUSIVE; WAIVER
24.01 Each and every of the rights, remedies and benefits of Landlord
provided by this Lease are cumulative, and are not exclusive of any other of
said rights, remedies and benefits, or of any other rights, remedies and
benefits allowed by law.
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24.02 The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or of any of the rules or regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord. One or more waivers of any
covenant or condition by either party shall not be construed as a waiver of a
further or subsequent breach of the same covenant or condition, and the consent
or approval by Landlord to or of any act by Tenant requiring Landlord's consent
or approval will not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar act by Tenant. No payment by Tenant
or receipt by Landlord of a lesser amount than the monthly rental herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord shall accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease.
SECTION 25.
WAIVER OF SUBROGATION
25.01 Landlord and Tenant hereby release each other and their
respective agents and employees from any and all liability to each other or
anyone claiming through or under them by way of subrogation or otherwise for any
loss or damage to property caused by or resulting from risks insured against
under the property insurance for loss, damage or destruction by fire or other
casualty carried by the parties hereto and which was in force at the time of any
such loss or damage or which would have been so covered had the insurance
required hereunder been maintained; provided, however, that this release shall
be applicable only with respect to loss or damage occurring during such time as
the releasor's policies of insurance contain a clause or endorsement to the
effect that any such release shall not adversely affect or impair such policies
or prejudice the right of the releasor to recover thereunder. Landlord and
Tenant each agrees that it will require its property insurance carriers to
include in its policy such a clause or endorsement. However, if such endorsement
cannot be obtained, or shall be obtainable only by the payment of an additional
premium charge above that which is charged by companies carrying such insurance
without such waiver of subrogation, then the party undertaking to obtain such
waiver shall notify the other party of such fact and such other party shall have
a period of ten (10) days after the giving of such notice to agree in writing to
pay such additional premium if such policy is obtainable at additional cost (in
the case of Tenant, pro rate in proportion of Tenant's rentable area to the
total rentable area covered by such insurance); and if such other party does not
so agree or the waiver shall not be obtainable, then the provisions of this
Section 25.01 shall be null and void as to the risks covered by such policy for
so long as either such waiver cannot be obtained or the party in whose favor a
waiver of subrogation is desired shall refuse to pay the additional premium. If
the release of either Landlord or Tenant, as set forth in the second sentence of
this Section 25.01, shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not released,
but no action or rights shall be sought or enforced against such party unless
and until all rights and remedies against the other's insurer are exhausted and
the other party shall be unable to collect such insurance proceeds. The waiver
of subrogation referred to above shall extend to the agents and employees of
each party (including, as to Landlord, the Manager), but only if and to the
extent that such waiver can be obtained without additional charge (unless such
party shall pay such charge). Nothing contained in this Section 25.01 shall be
deemed to relieve either party from any duty imposed elsewhere in this Lease to
repair, restore and rebuild.
SECTION 26.
RIGHT TO SHOW PREMISES
26.01 Landlord may upon reasonable advance notice except in an
emergency show the Premises to prospective tenants and brokers, and may display
signs about the Project and elsewhere advertising the availability of the
Premises. Landlord shall use reasonable efforts not to materially disrupt,
disturb or interfere with the conduct of Tenant's business during such entry.
SECTION 27.
INDEMNIFICATION
27.01 Tenant, its successors and assigns shall indemnify and hold
harmless Landlord and all superior lessors or superior mortgagees and its and
their respective partners, directors, officers, agents and employees from and
against any and all third-party claims arising from or in connection with: (i)
the
17
conduct or management of the Premises or of any business therein, or any work or
thing whatsoever done, or any condition created in or about the Premises, during
the term of this Lease; (ii) any act, omission or negligence of Tenant or any of
its subtenants or licensees or its or their partners, directors, officers,
agents, employees, invitees or contractors; (iii) any accident, injury or damage
whatever occurring in, at or upon the Premises; and (iv) any breach or default
by Tenant in the full and prompt payment and performance of Tenant's obligations
under this Lease; together with all costs, expenses and liabilities incurred or
in connection with each such claim or action or proceeding brought thereon,
including, without limitation, all attorneys' fees and expenses. If any case any
action or proceeding is brought against Landlord or any superior lessor or
superior mortgagee or its or their partners, directors, officers, agents or
employees and such claim is a claim for which Tenant is obligated to indemnify
Landlord pursuant to this Section 27, Tenant upon notice from Landlord or such
superior lessor or superior mortgagee, shall resist and defend such action or
proceeding (by counsel reasonably satisfactory to Landlord). The obligation of
Tenant under this Section 27 shall survive termination of this Lease.
27.02 Landlord, at its expense, will defend, indemnify, save and hold
harmless Tenant, its licensees, servants, agents, employees, affiliated entities
and contractors: from and against any loss, damage, claim of damage, liability
or expense (including attorneys' fees) to or for any person or property, whether
it is based on contract, tort, negligence or otherwise, or arising directly or
indirectly out of or in connection with the condition of the Common Areas or the
other parts of the Project not leased to or occupied by others, the use or
misuse thereof by Landlord, its licensees, servants, agents, employees, or
contractors, the failure of Landlord to comply with the terms of this Lease, or
any event on or relating to the Common Areas or the other parts of the Project
not leased to or occupied by others, whatever the cause, or any litigation or
other proceeding by or against Landlord to which Tenant is made a party, other
than the intentional, willful or malicious act of Tenant which causes injury
and/or damages. The provisions of this indemnification shall survive expiration
and termination of this Lease, which is either expected or intended by Tenant
when it performed the act in question.
SECTION 28.
DEFINITION OF LANDLORD; LANDLORD'S LIABILITY
28.01 The term "Landlord" as used in this Lease so far as covenants,
agreements, stipulations or obligations on the part of Landlord are concerned is
limited to mean and include only the owner or owners of the Premises at the time
in question, and in the event of any transfer or transfers of the title to such
fee Landlord herein named (and in case of any subsequent transfers or
conveyances the then grantor) will automatically be freed and relieved from and
after the date of such transfer or conveyance of all personal liability for the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
28.02 This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service expressly or implied to
be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reasons of shortages of materials, acts of God, governmental
restrictions, strike or labor troubles or any cause beyond Landlord's reasonable
control including, but not limited to, government preemption in connection with
a national emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
SECTION 29.
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INTENTIONALLY DELETED
SECTION 30.
RULES AND REGULATIONS
30.01 Tenant shall faithfully abide by and observe the rules and
regulations for the Building, a copy of which is attached hereto as Exhibit B
and made a part hereof, and, after notice thereof, all additions thereto and
modifications thereof of uniform applicability from time to time promulgated in
writing by Landlord.
SECTION 31.
SIGNS AND ADVERTISING
31.01 No signs, lighting, lettering, pictures, notices, advertisements,
shades, awnings or decorations will be displayed, used or installed by Tenant
except as approved in writing by Landlord. All such materials displayed in and
about the Premises will be such only as to advertise the business carried on
upon the Premises and Landlord will control the location, character and size
thereof. Tenant shall not cause or permit to be used any advertising materials
or methods which are reasonably objectionable to Landlord or to other tenants of
the Building, including without limiting the generality of the foregoing:
loudspeakers, mechanical or moving display devices, unusually bright or flashing
lights and similar devices the effect of which may be seen or heard from outside
the Premises. Tenant shall not solicit business, sell or display merchandise, or
distribute hand bills or other advertising matter in the parking area or other
Common Areas.
SECTION 32.
GENERAL
32.01 If, by reason of the occurrence of unavoidable delays due to acts
of God, governmental restrictions, strikes, labor disturbances, shortages of
materials or supplies or for any other cause or event beyond Landlord's
reasonable control, Landlord is unable to furnish or is delayed in furnishing
any service required by Landlord under the provisions of this Lease, or Landlord
is unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
required to be performed or made under this Lease, or is unable to fulfill or is
delayed in fulfilling any of Landlord's other obligations under this Lease, no
such inability or delay shall constitute an actual or constructive eviction in
whole or in part, or, except as otherwise expressly provided herein, entitle
Tenant to any abatement or diminution of rental or other charges due hereunder
or otherwise relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
32.02 This Lease is being entered into and executed in the State of
Michigan, and all questions with respect to the construction of this Agreement
and the rights and liabilities of the parties shall be determined in accordance
with the provisions of the laws of the State of Michigan.
32.03 Many references in this Lease to persons, entities and items have
been generalized for ease of reading. Therefore, references to a single person,
entity or item will also mean more than one person, entity or thing whenever
such usage is appropriate (for example, "Tenant" may include, if appropriate, a
group of persons acting as a single entity, or as tenants-in-common). Similarly,
pronouns of any gender should be considered interchangeable with pronouns of
other genders.
19
32.04 Section headings appearing in this Lease are for convenience
only. They do not define, limit or construe the contents of any paragraphs or
clauses contained herein.
32.05 Landlord reserves the right should it become necessary to comply
with required laws and regulations, or to assure the health, safety and welfare
of Tenant or other occupants of the building to relocate Tenant in other
comparable space in the Building upon not less than sixty (60) days prior
written notice to Tenant. Landlord shall pay the cost of moving Tenant to new
space. If Tenant does not wish to accept such relocation, Tenant may object
thereto by written notice to Landlord within ten (10) days after the notice from
Landlord. In the event Tenant fails to object within such ten (10) day period,
Tenant shall be deemed to have accepted the relocation. In the event Tenant so
objects, Landlord may rescind the notice of intention to relocate Tenant or may
reaffirm said intention, in which event Tenant may terminate this Lease by
written notice to Landlord within five (5) days after the affirmation notice
from Landlord. In the event Tenant fails to notify Landlord of its termination
within such five (5) day period, it shall be deemed to have accepted the
relocation. If Tenant terminates this Lease pursuant this paragraph, Tenant must
vacate the Premises within thirty (30) days following Tenant's notice to
Landlord of termination.
32.06 The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, successors, administrators and executors provided, however,
that no assignment by, from, through, or under Tenant in violation of any of the
provisions hereof shall vest in the assigns any right, title, or interest
whatsoever. All provisions of this Lease are and will be binding on the
successors and permitted assigns of Landlord and Tenant.
32.07 Time shall be and is of the essence in this Lease and with
respect to the performance of all obligations of Landlord and Tenant hereunder.
32.08 Any services which Landlord is required to furnish pursuant to
the provisions of this Lease may, at Landlord's option, be furnished from time
to time, in whole or in part, by employees of Landlord or by the managing agent
of the Project or by one or more third persons.
32.09 INTENTIONALLY DELETED.
32.10 Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the Land or the Premises, or with respect to the rents, leases,
expenses of operation or any other matter or thing affecting or related to the
Premises except as expressly set forth herein; 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.
32.11 Annually and at any other time, Tenant shall promptly furnish
Landlord their most recent audited financial statements or quarterly updates
reflecting Tenant's current financial condition. All such financial statements
shall be in such form and contain such detail as Landlord shall reasonably
request.
32.12 In case any provision of this Lease or any agreement or
instrument executed in connection herewith shall be invalid, illegal or
unenforceable, such provision shall be enforced to the fullest extent permitted
by applicable law, and the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby. This Lease shall not be construed more strictly against one
party than against the other, merely by virtue of the fact that it may have been
prepared by counsel for one of the parties, it being recognized that both
Landlord and Tenant have contributed substantially and materially to the
preparation of this Lease.
32.13 This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant. This Lease and the Exhibits attached hereto and
forming a part hereof set forth all of the covenants, agreements, stipulations,
promises, conditions and understandings between Landlord and Tenant concerning
the Premises, and there are no covenants, agreements, stipulations, promises,
conditions or understanding, either oral or written, between them other than set
forth herein or therein.
32.14 Tenant will not record this Lease or a memorandum hereof, and
will not otherwise disclose the terms of this Lease to anyone other than its
attorneys, accountants or employees who need to know of its contents in order to
perform their duties for Tenant. Any other disclosure will be an Event of
Default under the Lease. Tenant agrees that Landlord shall have the right to
publish a "tombstone" or other promotional description of this Lease.
20
32.15 Except as disclosed in writing to Landlord, Tenant represents and
warrants to Landlord that there are no claims for brokerage commissions or
finder's fees in connection with this Lease as a result of the contracts,
contacts or actions of Tenant, and Tenant agrees to indemnify Landlord and hold
it harmless from all liabilities arising from any such claim arising from an
alleged agreement or act by Tenant (including, without limitation, the cost of
counsel fees in connection therewith); such agreement to survive the termination
of this Lease.
32.16 The matters set forth on Exhibit D, Special Provisions, if any,
are hereby accepted and agreed to between Landlord and Tenant and incorporated
herein by reference.
IN WITNESS WHEREOF Landlord and Tenant have executed this Lease as of
the date and year first above written.
LANDLORD: TENANT:
AMERICAN CENTER LLC, a Michigan Limited SUN COMMUNITIES OPERATING LIMITED
Liability Company PARTNERSHIP, a Michigan Limited Partnership
BY: SOUTHFIELD OFFICE MANAGER, INC.
By: /s/ Paul A. Stodulski By: /s/ Jeffrey P. Jorissen
----------------------------------------- --------------------------------------------------
Printed:: Paul A. Stodulski Printed: Jeffrey P. Jorissen
----------------------------------- --------------------------------------------
Its: Secretary Its: Chief Financial Officer of its General Partner,
---------------------------------------- Sun Communities, Inc.
-----------------------------------------------
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