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Exhibit 10.5
AMENDED AND RESTATED
DETROIT REAL ESTATE BOARD FORM--
BUSINESS PROPERTY LEASE FORM 113-A
(1) This Lease Made as of this 25th day of June 1996 by and
between C. LANE MALLY the Lessor, hereinafter designated as the
Landlord, and MALLYCLAD CORPORATION, a Michigan corporation the
Lessee, hereinafter designated as the Tenant.
Description (2) WITNESSETH: The Landlord, in consideration of the rents
to be paid and the covenants and agreements to be performed by the
Tenant, does hereby lease unto the Tenant the following described
premises situated in the City of Madison Heights, County of
Oakland and State of Michigan,
to-wit:
A portion of the Building located at 31301 Mally Road
consisting of 34,306 square feet.
Terms (3) For the term of five (5) years from and after the first
day of January 1994.
Rent fully to be completed and ended, the Tenant yielding and paying
during the continuance of this lease unto the Landlord for rent of
said premises for said term, the sum of Eight Hundred Fifty-Seven
Thousand Six Hundred Fifty Dollars ($857,650.00) in lawful money
of the United States payable in monthly installments in advance,
upon the first day of each and every month as follows: $14,295.00.
Landlord acknowledges that all rent and other obligation has been
paid through June 25, 1996 and the next regular installment of
rent is due on July 1, 1996.
Rent (4) The Tenant hereby hires the said premises for the said
term as above mentioned and covenants well and truly to pay, or
cause to be paid unto the Landlord at the dates and times above
mentioned, the rent above reserved.
Insurance (5) See Addendum.
(6) If the Tenant shall default beyond any applicable cure
or grace period in any payment or expenditure other than rent
required to be paid or expended by the Tenant under the terms
hereof, the Landlord may at his option make such payment or
expenditure, in which event the amount thereof shall be payable as
rental to the Landlord by the Tenant on the next ensuing rent day
together with interest at 11% per annum from the date of such
payment or expenditure by the Landlord and on default in such
payment the Landlord shall have the same remedies as on default in
payment of rent.
(7) All payments of rent or other sums to be made to the
Landlord shall be made at such place as the Landlord shall
designate in writing from time to time.
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Assignment (8) The Tenant covenants not to assign or transfer this
lease or hypothecate or mortgage the same or sublet said premises
or any part thereof without the written consent of the Landlord.
Any assignment, transfer, hypothecation, mortgage or subletting
without said written consent shall give the Landlord the right to
terminate his lease and to re-enter and repossess the leased
premises. See Addendum.
Bankruptcy and
Insolvency (9) The Tenant agrees that if the estate created hereby
shall be taken in execution, or by other process of law, or if the
Tenant shall be declared bankruptcy or insolvent, according to
law, or any receiver be appointed for the business and property of
the Tenant, or if any assignment shall be made of the Tenant's
property for the benefit of creditors, then and in such event this
lease may be cancelled at the option of the Landlord.
Right to
Mortgage (10) The Landlord reserves the right to subject and
subordinate this lease at all times to the lien of any mortgage or
mortgages now or hereafter placed upon the Landlord's interest in
the said premises and on the land and buildings of which the said
premises are a part or upon any buildings hereafter placed upon
the land of which the leased premises form a part. And the Tenant
covenants and agrees to execute and deliver upon demand such
further instrument or instruments subordinating this lease to the
lien of any such mortgage or mortgages as shall be reasonably
required desired by the Landlord and any mortgagees or proposed
mortgagees. In no event shall Tenant's rights under this Lease be
disturbed by such mortgagee as long as Tenant is not in default
hereunder.
Use and
Occupancy (11) It is understood and agreed between the parties hereto
that said premises during the continuance of this lease shall be
used and occupied for industrial, office and warehouse use and for
no other purpose or purposes without the written consent of the
Landlord, and that the Tenant will not use the premises for any
purpose in violation of any law, municipal ordinance or
regulation.
Fire (12) It is understood and agreed that if the premises hereby
leased be damaged or destroyed in whole or in part by fire or
other casualty during the term hereof, the Landlord will repair
and restore the same to good tenantable condition with reasonable
dispatch, and that the rent herein provided for shall abate
entirely in case the entire premises are untenantable and pro rata
for the portion rendered untenantable, in case a part only is
untenantable, until the same shall be restored to a tenantable
condition; provided, however, that if the Tenant shall fail to
adjust his own insurance or to remove his damaged goods, wares,
equipment or property within a reasonable time, and as a result
thereof the repairing and restoration is delayed, there shall be
abatement of rental during the period of such resulting delay, and
provided further that if the Tenant shall use any part of the
leased premises for storage during the period of repair a
reasonable charge shall be made therefor against the Tenant, and
provided further that in case the leased premises, or the building
of which they are a part, shall be destroyed to the extent of more
than one-half of the value thereof, the Landlord or Tenant may at
his option terminate this lease forthwith by a written notice to
the Tenant.
Repairs See Addendum
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Insurance See Addendum
Tenant to
Indemnify See Addendum
Repairs and
Alterations (15) Except as provided in Paragraph 13 hereof, the Tenant
further covenants and agrees that he will, at his own expense,
during the continuation of this lease, keep the said premises and
every part thereof in as good repair and at the expiration of the
term yield and deliver up the same in like condition as when
taken, reasonable use and wear thereof and damage by the elements
and casualty excepted. The Tenant shall not make any alterations,
additions or improvements to said premises other than improvements
which are cosmetic in nature (e.g., carpeting, wallpaper,
painting, etc.) without the Landlord's written consent and all
alterations, additions or improvements made by either of the
parties hereto upon the premises, except movable office furniture
and trade fixtures put in at the expense of the Tenant, shall be
the property of the Landlord, and shall remain upon and be
surrendered with the premises at the termination of this lease,
without molestation or injury.
The Tenant covenants and agrees that if the demised premises
consists of only a part of a structure owned or controlled by the
Landlord, the Landlord may enter the demised premises at
reasonable times and install or repair pipes, wires and other
appliances or make any repairs deemed by the Landlord essential to
the use and occupancy of other parts of the Landlord's building.
Eminent Domain (16) If the whole or any part of the premises hereby leased
shall be taken by any public authority under the power of eminent
domain then the term of this lease shall cease on the part so
taken from the day the possession of that part shall be required
for any public purpose and the rent shall be paid up to that day
and from that day the Tenant shall have the right either to cancel
this lease and declare the same null and void or to continue in
the possession of the remainder of the same under the terms herein
provided, except that the rent shall be reduced in proportion to
the amount of the premises taken. All damages awarded for such
taking shall be awarded to the Landlord as compensation for
diminution in value to the leasehold or to the fee of the premises
herein leased; provided, however, that the Landlord shall not be
entitled to any portion of the award made to the tenant for loss
of business.
Reservation (17) The Tenant shall not erect any structure for storage or
any aerial, or use the roof for any purpose without the consent in
writing of the Landlord.
Care of
Premises (18) The Tenant shall not perform any acts or carry on any
practice which may injure the building and shall keep premises
under his control clean and free from rubbish, dirt, at all times,
and it is further agreed that in the event the Tenant shall not
comply with these provisions, the Landlord may enter upon said
premises and have rubbish, dirt and ashes removed, in which event
the Tenant agrees to pay all charges that the Landlord shall pay
for hauling rubbish, ashes and dirt. Said charges shall be paid to
the Landlord by the Tenant as soon as bill is presented to him.
See Addendum.
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Condition of
Premises at
Time of Lease (20) The Tenant further acknowledges that he has examined
the said leased premises prior to the making of this lease, and
knows the condition thereof, and that no representations as to the
condition or state of repairs thereof have been made by the
Landlord, or his agent, which are not herein expressed, and the
Tenant hereby accepts the leased premises in their present
condition at the date of the execution of this lease.
(21) The Landlord shall not be responsible or liable to the
Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying adjoining premises or
any part of the premises adjacent to or connected with the
premises hereby leased or any part of the building of which the
leased premises are a part or for any loss or damage resulting to
the Tenant or his property from bursting, stoppage or leaking of
water, gas, sewer or steam pipes, unless caused by the negligence
or willful misconduct of Landlord, its agents or contractors.
Re-Renting (22) The Tenant hereby agrees that for a period commencing
180 days prior to the termination of this lease, the Landlord may
show the premises to prospective Tenants, and 180 days prior to
the termination of this lease, may display in and about said
premises and in the windows thereof, the usual or ordinary "TO
RENT" signs.
Holding Over (23) It is hereby agreed that in the event of the Tenant
herein holding over after the termination of this lease,
thereafter the tenancy shall be from month to month in the absence
of a written agreement to the contrary.
Gas, Water,
Heat,
Electricity (24) The Tenant will pay all charges made against said
leased premises for gas, water, heat and electricity during the
continuance of this lease, as the same shall become due.
Advertising
Display (25) It is further agreed that all signs and advertising
displayed in and about the premises shall be such only as
advertise the business carried on upon said premises, and that the
Landlord shall control the character and size thereof, and that no
sign shall be displayed excepting such as shall be approved in
writing by the Landlord, and that no awning shall be installed or
used on the exterior of said building unless approved in writing
by the Landlord.
Access to
Premises (26) The Landlord shall have the right to enter upon the
leased premises at all reasonable hours for the purpose of
inspecting the same. If the Landlord reasonably deems any repairs
necessary and such repairs are Tenant's obligation under this
Lease, he may demand that the Tenant make the same and if the
Tenant refuses or neglects forthwith to commence such repairs and
complete the same with reasonable dispatch the Landlord may make
or cause to be made such repairs and shall not be responsible to
the Tenant for any loss or damage that may accrue to his stock or
business by reason thereof, and if the Landlord makes or causes to
be made such repairs the Tenant agrees that he will forthwith on
demand pay to the Landlord the cost thereof with interest at 11%
per annum, and if he shall make default in such payment the
Landlord shall have the remedies provided in Paragraph 6 hereof.
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Re-Entry (27) In case any rent shall be due and unpaid or if default
be made in any of the covenants herein contained, or if said
leased premises shall be deserted or vacated, then it shall be
lawful for the Landlord, his certain attorney, heirs,
representatives and assigns, to re-enter into, re-possess said
premises and the Tenant and each and every occupant to remove and
put out in any manner provided by law. If Tenant vacates the
premises, Tenant shall maintain reasonable levels of utility
service.
Quiet
Enjoyment (28) The Landlord covenants that the said Tenant, on payment
of all the aforesaid installments and performing all the covenants
aforesaid, shall and may peacefully and quietly have, hold and
enjoy the said demised premised for the term aforesaid.
Expenses--
Damages
Re-Entry (29) In the event that the Landlord shall, during the period
covered by this lease, obtain possession of said premises by
re-entry, summary proceedings, or otherwise, the Tenant hereby
agrees to pay the Landlord the reasonable expense incurred in
obtaining possession of said premises, and also all reasonable
expenses and commissions which may be paid in and about the
letting of the same, and all other damages.
Remedies and
Exclusive (30) It is agreed that each and every of the rights,
remedies and benefits provided by this lease shall be cumulative,
and shall not be exclusive of any other of said rights, remedies
and benefits, or of any other rights, remedies and benefits
allowed by law.
Waiver (31) One or more waivers of any covenant or condition by the
Landlords shall not be construed as a waiver of a further breach
of the same covenant or condition.
Delay of
Prosecution Text Deleted.
Notices (33) Whenever under this lease a provision is made for
notice of any kind it shall be deemed sufficient notice and
service thereof if such notice to the Tenant is in writing
addressed to the Tenant at his last known Post Office address or
at the leased premises and deposited in the mail with postage
prepaid and if such notice to the Landlord is in writing addressed
to the last known Post Office address of the Landlord and
deposited and deposited in the mail with postage prepaid. Notice
need be sent to only one Tenant or Landlord where the Tenant or
Landlord is more than one person.
(34) It is agreed that in this lease the word "he" shall be
used as synonymous with the words "she," "it" and "they," and the
word "his" synonymous with the words "her," "its" and "their."
(35) The covenants, conditions and agreements made and
entered into by the parties hereto are declared binding on their
respective heirs, successors, representatives and assigns.
(36) In the event security is given, Paragraph 37 of the
last page shall be deemed a part of this lease.
See Addendum attached hereto and incorporated herein by reference.
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IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the day and year first above written.
WITNESSED BY: LANDLORD:
/s/ C. Lane Mally (L.S.)
-------------------- -----------------------------------
C. LANE MALLY
(L.S.)
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TENANT:
(L.S.)
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MALLYCLAD CORPORATION
/s/George S. Hofmeister, Chairman (L.S.)
-------------------- -----------------------------------
Richard L. Pangrazzi
(L.S.)
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IN CONSIDERATION of the letting of the premises in the
foregoing instrument described, and for the sum of one dollar, to
_______________ paid _______________ do hereby become surety for
the punctual payment of the rent and performance of the covenants
in said instrument mentioned, to be paid and performed by the
second part _______________ therein named; and if any default
shall at any time be made therein do hereby promise and agree to
pay unto the part _____ of the first part named in said
instrument, the said rent and arrears thereof that may be due, and
fully satisfy the condition of said instrument, and all damages
that may occur by reason of the non-fulfillment thereof, without
requiring notice or proof of the demand being made. The Landlord
shall not be held to strict construction adopted in cases of
principal and surety. The surety shall not have the right to claim
discharge, or plead by way of defense any extension of time given
by the Landlord, failure of the Landlord to give notice of
default, receipt by the Landlord of securities from the Tenant,
failure of the Landlord to pursue the Tenant and his property with
due diligence or to apply other remedies and other securities
which may possibly be available to the Landlord and any direct
release, unless it be in writing duly authorized and executed.
WITNESS _______ hand ___________ and seal _________ this
_______________ day of 19__.
_______________ (L.S.)
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STATE OF MICHIGAN )
) ss.
COUNTY OF ______ )
On this _________ day of ____________, in the year of our
Lord One Thousand Nine Hundred and ________________ before me, a
___________________ in and for said County, appeared
_______________________ to me personally known, who, being by me
sworn, did (1) ___________________ say that (2)
___________________ the ___________________ of ___________________
the corporation named in and which executed the within instrument,
and that the seal affixed to said instrument is the corporate seal
of said corporation, and that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of
Directors; and said ___________________ acknowledges said
instrument to be the free act and deed of said corporation.
_______________________________
Notary Public County, Michigan
My Commission Expires
NOTE: If more than one officer acknowledges, insert at (1) "each
for himself" and (2) "they are respectively"
SECURITY PROVISION
Paragraph 37 (Refer to Paragraph 36 of Lease)
The Landlord herewith acknowledges the receipt of None
Dollars ($0.00), which he is to retain a security for the faithful
performance of all of the covenants, conditions, and agreements of
this lease, but in no event shall the Landlord be obligated to
apply the same upon rents or other charges in arrears or upon
damages for the Tenant's failure to perform the said covenants,
conditions, and agreements; the Landlord may so apply the security
at his option; and the Landlord's right to the possession of the
premises for non- payment of rent or for any other reason shall
not in any event be affected by reason of the fact that the
Landlord holds this security. The said sum if not applied toward
the payment of rent in arrears or toward the payment of damages
suffered by the Landlord by reason of the Tenant's breach of the
covenants, conditions, and agreements of this lease is to be
returned to the Tenant when this lease is terminated, according to
these terms, and in no event is the said security to be returned
until the Tenant has vacated the premises and delivered possession
to the Landlord.
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In the event that the Landlord repossesses himself of the
said premises because of the Tenant's default or because of the
Tenant's failure to carry out the covenants,conditions, and
agreements of this lease, the Landlord may apply the said security
upon all damages suffered to the date of said repossession and may
retain the said security to apply upon such damages as may be
suffered or shall accrue thereafter by reason of the Tenant's
defaults or breach. The Landlord shall not be obliged to keep the
said security as a separate fund, but may mix the said security
with his own funds.
LANDLORD:
/s/ C. Lane Mally (L.S.)
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C. LANE MALLY
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Detroit Real Estate Board
BUSINESS PROPERTY LEASE
Landlord
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Tenant
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Premises
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From
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To
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ADDENDUM TO AMENDED AND RESTATED LEASE DATED AS OF JUNE 25,
1996 BETWEEN C. LANE MALLY ("LANDLORD") AND MALLYCLAD
CORPORATION, A MICHIGAN CORPORATION ("TENANT")
1. CONFLICTS OR INCONSISTENCIES. In the event of any conflict or
inconsistency between the terms and conditions of this Addendum to Amended and
Restated Lease ("Addendum") and the terms and conditions of the Detroit Board of
Realtors Business Property Lease Form 113-A (the "Form Lease") to which this
Addendum is attached, the terms and conditions of this Addendum shall control
and prevail. The Form Lease and this Addendum are sometimes collectively
referred to as the "Lease."
2. INSURANCE.
(a) Landlord shall keep the building located on the premises
insured against damage and destruction by fire, vandalism and other
perils in the amount of the full replacement value of the building as
the value may exist from time to time. The insurance shall include an
extended coverage endorsement of the kind customarily required by
institutional lenders to repair and restore the building. Tenant shall
reimburse Landlord for Tenant's Pro-Rata Share (as hereinafter defined)
of the cost of such insurance within thirty (30) days of a written
request therefor by Landlord. Such payment request shall be accompanied
by a copy of the invoice for such insurance. The insurance for the
first and last year of the Lease term shall be equitably prorated by
the parties.
(b) Tenant, at Tenant's own cost and expense, will provide and
keep in full force and effect during the term of this Lease, public
liability insurance with limits of not less than One Million Dollars
($1,000,000) covering bodily injuries to persons, including death, and
loss of or damage to the property of others, in respect of any one
occurrence and in the aggregate. Landlord shall have the right to
require increases in the amount of such insurance, not more frequently
than annually, if reasonably required. Such insurance may be provided
under Tenant's blanket comprehensive liability insurance policy. A
certificate evidencing such insurance coverage shall be delivered to
Landlord prior to the commencement of the Term hereof. Such certificate
of insurance will provide for thirty (30) days advance notice in the
event of cancellation. Tenant's insurance shall be provided by a
company licensed to do business in Michigan and shall be otherwise
reasonably acceptable to Landlord.
(c) Landlord and Tenant do hereby each herewith and hereby release
and relieve the other, and waive the entire claim of recovery, for loss
of or damage to property arising out of or incident to fire, lightning,
and the other perils included in a standard fire insurance policy
containing a standard extended coverage and special extended coverage
endorsement or under a policy or policies insuring the same perils or
perils additional to those already described, when such property
constitutes the premises or the building or is in, on or about the
premises, building or land on which the building
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is situated, whether or not such loss or damage is due to the
negligence of Landlord or Tenant, their agents, employees, guests,
licensees, invitees or contractors. The release and waiver also applies
to each party's directors, officers, employees, shareholders, partners
and agents.
(d) Each of Landlord and Tenant shall cause its insurance carriers
to waive all rights of subrogation against the other party hereto to
the extent of Landlord's or Tenant's undertaking set forth in this
Paragraph 2.
3. REAL ESTATE TAXES.
(a) Tenant agrees to pay Tenant's Pro-Rata Share (as hereinafter
defined) of any and all real estate taxes and assessments, if any,
assessed upon the Building in which the leased premises are located and
common areas related thereto, which taxes and/or assessments shall have
been assessed and/or become due and payable during the term of this
Lease. Tenant shall pay such sums within thirty (30) days of a written
request therefor by Landlord, which request will be accompanied by a
copy of the tax bill. In no event, however, shall Tenant be obligated
to pay any such tax bill sooner than 14 days prior to the date a
penalty for nonpayment may be assessed by the taxing authority. Said
taxes shall be prorated and adjusted from the date of the Lease
commencement and the date of termination of this Lease based on the due
date method (i.e., on the basis that such taxes are paid in advance).
Tenant shall have the right to contest real estate taxes in any
reasonable manner and Landlord agrees to cooperate in connection with
any contest of the payment of real estate taxes by Tenant.
(b) Landlord represents and warrants to Tenant that the premises
do not consist of real property reserved for additional construction by
Landlord or which does not otherwise service the building located on
the premises.
(c) Landlord may take the benefit of the provisions of any statute
or ordinance permitting any assessment to be paid over a period of time
and the installments of such assessment, which become due and payable
during the term of the Lease, shall be included in the calculation of
real estate taxes; provided, however, that in the event that Landlord
elects to pay any special assessment in a lump sum, Landlord shall, for
purposes of calculating Tenant's Pro-Rata Share of real estate taxes
under this Lease, amortize such assessment over the longest period
allowed by law to pay such assessment and Landlord may include interest
at the rate that would be charged by the assessing authority had
Landlord elected to pay such assessment over such longest period.
(d) As used herein, "Tenant's Pro-Rata Share" shall mean a
fraction of the numerator of which is the rentable area of the leased
premises and the denomination of which is the rentable area of the
Building.
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4. ASSIGNMENT.
(a) Notwithstanding the provisions of Paragraph 8 of the Form
Lease, the Lease may be assigned, or the premises may be sublet, in
whole or in part, to (i) any corporation into or with which Tenant may
be merged or consolidated, (ii) any corporation which shall be an
affiliate, subsidiary, parent or successor of Tenant, (iii) a purchaser
of substantially all of Tenant's assets whose financial condition is
sufficient, in Landlord's reasonable judgment to permit such purchaser
to perform Tenant's executory obligations under this Lease, or (iv) a
partnership or limited liability company the majority interests in
which shall be owned by stockholders, officers or directors of Tenant.
Landlord's written consent shall be required with respect to the
transfers described in clauses (ii) and (iv) which consent shall be
given if such successor's financial condition is substantially equal to
or better than the financial condition of Tenant immediately prior to
such transfer.
(b) The consent by Landlord to any assignment of the Lease shall
not be construed as a release of Tenant from its obligations under this
Lease except for (i) an assignment made in connection with any of the
transactions described in sub clauses (i), (ii) and (iv) of
subparagraph (a) above, or (ii) an assignment to a party whose
financial condition is sufficient, in Landlord's reasonable judgment,
to permit such party to perform Tenant's executory obligations under
this Lease. In no event shall any such assignment release Tenant from
its obligations under paragraph 6(c)(ii) or for obligations owing to
the Landlord maturing prior to the assignment.
5. NONDISTURBANCE AGREEMENT. Tenant's obligation to subordinate this
Lease to the lien of any mortgagee or mortgage now or hereafter placed upon
Landlord's interest in the premises is hereby expressly conditioned on the
agreement of any such mortgagee to enter into a nondisturbance agreement in form
and substance reasonably satisfactory to Tenant. Such nondisturbance agreement
shall provide, among other things, that Tenant's quiet and peaceful possession
of the premises shall not be disturbed by any such mortgagee as long as Tenant
is not in default under this Lease. Landlord shall exercise its best efforts to
obtain such nondisturbance agreement within 30 days of the date hereof.
6. COMPLIANCE WITH LAWS.
(a) Landlord's Compliance. Landlord represents and warrants that
as of June 25, 1996 the premises and building comply with all
applicable laws, ordinances, rules, regulations, building or fire
protection codes (collectively, "Applicable Laws"). During the Lease
term, Landlord shall comply with all Applicable Laws regarding the
premises except to the extent Tenant must comply under subparagraph (b)
of this Paragraph 6.
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(b) TENANT'S COMPLIANCE. Tenant shall comply with all Applicable
Laws:
(i) regarding the physical condition of the premises, but
only to the extent that the Applicable Laws pertain to the
particular manner in which Tenant uses the premises; or
(ii) that do not relate to the physical condition of the
premises but relate to the lawful use of the premises.
(c) ENVIRONMENTAL COMPLIANCE.
(i) Landlord's Obligations. Landlord shall not cause or
permit any Hazardous Material (as defined herein) to be released,
brought upon, stored, produced, emitted, disposed of or used upon,
about or beneath the building by Landlord, its agents, employees,
contractors, invitees or other tenants (other than Vyn-L
Corporation) except as permitted under and in full compliance with
all environmental laws.
Landlord shall indemnify, defend and hold Tenant harmless
from and against any and all Tenant's Environmental Damages (as
defined herein) which arise from: (A) the presence upon, about or
beneath the building or premises of any "Hazardous Materials" (as
defined herein) or of any chemical substance requiring remediation
under any federal, state or local statute, regulation, ordinance
or policy; or; (B) the breach of any of the provisions of this
Lease. For the purpose of this Lease, "Tenant's Environmental
Damages" shall mean: (1) all claims, judgments, damages,
penalties, fines, costs, liabilities and losses (including,
without limitation, diminution in the value of the building or
premises, damages for the loss of or restriction on use of
rentable or usable space or of any amenity of the premises; (2)
all sums paid for settlement of claims, attorneys fees,
consultant's fees and expert's fees; and (3) all costs incurred by
Tenant in connection with investigation of Hazardous Material (as
defined herein) upon, about or beneath the building or premises,
the preparation of any feasibility studies or reports and the
performance of any cleanup, remediation, removal or restoration
work required by any federal, state or local governmental agency
or political subdivision necessary for Tenant to make full
economic use of the premises, or otherwise required under this
Lease. Landlord's obligation under this subparagraph shall survive
the expiration or termination of this Lease. In no event shall
Tenant's Environmental Damages include damages resulting from the
breach by Tenant or its subtenants or assigns of their obligations
under subparagraph 6(c)(ii) hereof or resulting from the breach by
Vyn-L Corporation ("Vyn-L") or its subtenants or assigns of the
same environmental covenants contained in an Amended and Restated
Lease between Vyn-L and Landlord of even date herewith.
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(ii) Tenant's Obligations. Neither Tenant nor its agents,
employees or contractors shall cause or permit Hazardous Materials
to be brought upon, kept, or stored in, on or about the premises,
the building except as permitted under and in full compliance with
all environmental laws. If Tenant obtains knowledge of the actual
or suspected release of Hazardous Material, then Tenant shall
promptly notify Landlord of such actual or suspected release.
Tenant shall immediately notify Landlord of any inquiry, test,
investigation or enforcement proceeding by or against Tenant
involving a release. If Tenant or its agents, employees or
contractors shall cause or permit a release, then Tenant shall
promptly notify Landlord of such release and immediately begin
investigation and remediation of such release, as required by all
environmental laws. Tenant shall indemnify, defend and hold
Landlord harmless from and against Landlord's Environmental Damage
(as hereinafter defined) arising out of or related to Tenant's
breach of the covenants contained in this subparagraph (ii) from
and after June 25, 1996. For the purpose of this Lease,
"Landlord's Environmental Damages" shall mean: (1) all claims,
judgments, damages, penalties, fines, costs, liabilities and
losses (including, without limitation, diminution in the value of
the building or premises, damages for the loss of or restriction
on use of rentable or usable space or of any amenity of the
premises; (2) all sums paid for settlement of claims, attorneys
fees, consultant's fees and expert's fees; and (3) all costs
incurred by Landlord in connection with investigation of Hazardous
Material (as defined herein) upon, about or beneath the building
or premises, the preparation of any feasibility studies or reports
and the performance of any cleanup, remediation, removal or
restoration work required by any federal, state or local
governmental agency or political subdivision necessary for
Landlord to make full economic use of the premises, or otherwise
required under this Lease. Tenant's obligation under this
subparagraph shall survive the expiration or termination of this
Lease.
(iii) Landlord's Breach of Environmental Covenant. If any
release of Hazardous Material or the clean up of such release,
materially interferes with Tenant's use or occupancy of the
premises (other than a release for which Tenant, Vyn-L or their
respective agents, employees, contractors or assigns are
responsible), then (A) all basic rent and all other charges
payable under the Lease shall immediately abate during the period
of such interference (based on and to the extent which Tenant's
use of the premises is no longer fit for ordinary business
purposes (as reasonably determined by Tenant)); and (B) if such
interference continues for a period in excess of sixty (60) days
or poses a health hazard to Tenant's employees for any period of
time, then Tenant, at its option, can terminate this Lease.
"Hazardous Material" means any material or substance: (i)
defined as a "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 9601 et seq. and amendments thereto and regulations
promulgated thereunder; (ii) containing gasoline, oil, diesel fuel
or other petroleum products; (iii) defined as a "hazardous waste"
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pursuant to the Federal Resource Conservation and Recovery Act
(42 U.S.C. Section 6901 et seq.) and amendments thereto and
regulations promulgated thereunder; (iv) containing
polychlorinated biphenyls (PCBs); (v) containing asbestos; (vi)
radioactive; (vii) biological or (viii) the presence of which
requires investigation or remediation under any federal, state or
local statute, regulation, ordinance or policy or which is or
becomes defined as a "hazardous waste" or "hazardous substance"
under any federal, state or local statute, regulation, ordinance
or policy and any toxic, explosive, corrosive or otherwise
hazardous substance, material or waste which is or becomes
regulated by any federal, state or local governmental authority,
or which causes a nuisance upon or waste to the premises.
6. LIABILITY, INSURANCE AND INDEMNITY.
(d) At and after the commencement date, Tenant agrees to defend,
indemnify and hold harmless Landlord from claims for bodily injury,
death or property damage arising from incidents which occur on the
premises caused by the negligence or willful misconduct of Tenant, its
agents, employees or invitees subject to the provisions of Paragraph 2
of this Addendum.
When the claim results from the joint negligence or willful misconduct
of Tenant and Landlord or Tenant and a third party unrelated to Tenant,
except Tenant's agents, employees or invitees, Tenant's duty to defend,
indemnify and hold Landlord harmless under this subparagraph shall be
in proportion to Tenant's allocable share of the joint negligence or
willful misconduct subject to the provisions of Paragraph 2 of this
Addendum.
(e) At and after the commencement date, Landlord agrees to
defend, indemnify and hold harmless Tenant from claims for bodily
injury, death or property damage arising from incidents which occur on
the premises caused by the negligence or willful misconduct of
Landlord, its agents, employees or invitees subject to the provisions
of Paragraph 2 of this Addendum.
When the claim results from the joint negligence or willful misconduct
of Landlord and Tenant or Landlord and a third party unrelated to
Landlord, except Landlord's agents, employees or invitees, Landlord's
duty to defend, indemnify and hold Tenant harmless under this
subparagraph shall be in proportion to Landlord's allocable share of
the joint negligence or willful misconduct subject to the provisions of
Paragraph 2 of this Addendum.
7. REPAIRS.
(f) Except as otherwise provided under this Lease, Tenant shall:
(i) keep the premises (including the cranes located
therein) and the north parking lot in the same condition and state
of repair which existed as
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of the commencement date, ordinary wear and tear, loss by fire,
the elements or other casualty and loss due to the negligent or
willful misconduct of Landlord or any other tenant of the Building
(other than Vyn-L) or their respective agents, contractors or
invitees excepted;
(ii) make repairs and replacements to the premises or
building needed because of Tenant's misuse or negligence, except
to the extent that the repairs or replacements are covered by
Landlord's insurance or the insurance Landlord is required to
carry under this Lease, whichever is greater; and
(iii) Tenant shall arrange to have the lobby cleaned
periodically.
(g) Except for the repairs that Tenant must make under Paragraph
8(a), Landlord shall pay for and make all other repairs and
replacements to the premises, common areas and Building. Landlord shall
make the repairs and replacements and perform such other maintenance
service in order to maintain the Building in a condition comparable to
other industrial buildings of comparable age and quality in the Troy
Madison Heights area. The maintenance shall include the roof,
foundation, exterior walls, all structural components and all Building
systems. Landlord shall keep the common areas and all other areas under
the control of Landlord (including all roads, yards and parking areas)
clean and free from rubbish, dirt snow and ice at all times. Tenant
agrees to reimburse Landlord for Tenant's Pro-Rata Share of the
reasonable cost of day-to-day maintenance of the building's heating,
ventilating, air conditioning, electrical and mechanical system as well
as minor repair to the private road servicing the Building (such as
repair of potholes), provided, however, that in no event shall Tenant
be responsible for reimbursing Landlord for maintenance or repair
expenditures of a capital nature as determined in accordance with
generally accepted accounting principles. Tenant shall also reimburse
Landlord for Tenant's Pro-Rata Share of the reasonable costs of snow
removal and lawn service.
8. CONSENT OF LANDLORD. Whenever Tenant is required to obtain the
consent or approval of Landlord as to any matter, decision or request described
in the Lease, Landlord agrees not to unreasonably withhold or delay its decision
beyond fifteen (15) days. In the event that Landlord fails to respond to any
such request within such fifteen-day period, then such consent or approval shall
be deemed approved. In the event that Landlord's discretion is required to be
exercised as to any matter other than a consent or approval described above,
then Landlord agrees to exercise such discretion in a reasonable manner.
9. ATTORNEYS FEES. In any litigation between the parties regarding
the Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs, including reasonable attorneys' fees incurred by the
prevailing party to the extent determined by the presiding judge. A party shall
be considered the prevailing party if:
(h) it initiated the litigation and substantially obtains the
relief it sought, either through a judgment or the losing party's
voluntary action before trial or judgment, unless otherwise expressly
agreed to in writing;
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(i) the other party withdraws its action without substantially
obtaining the relief it sought; or
(j) it did not initiate the litigation and judgment is entered
for either party, but without substantially granting the relief sought.
10. LANDLORD'S TITLE. Landlord represents, warrants and covenants that
it has lawful title to the premises in fee simple, that the premises are free
and clear of any and all liens, mortgages or other encumbrances (except a
mortgage held by First of America Bank) and that Landlord has the right and
power to make this Lease for the term aforesaid. Landlord further represents and
warrants to Tenant that the premises as of the commencement date will be fit for
the purpose intended.
11. EVENT OF DEFAULT. Tenant shall not be deemed to be in default
under this Lease unless (a) Tenant fails to pay any installment of rent when due
for a period of ten (10) days following written notice of nonpayment from
Landlord; or (b) Tenant fails to perform any other obligation required to be
performed by Tenant under this Lease for a period of thirty (30) days following
Tenant's receipt of written notice of such other default from Landlord. To the
extent such other default cannot reasonably be cured within a thirty (30) day
period, no default shall exist if Tenant begins to cure such default within such
thirty (30) day period and thereafter diligently proceeds to cure such default.
12. SIGNAGE. Tenant shall have the right to place a sign on the
building located on the premises subject to compliance with applicable sign
ordinances. Landlord may place signs in other parts of the Building after first
obtaining Tenant's prior written consent, which consent shall not be
unreasonably withheld.
13. DAMAGE TO PREMISES. Paragraph 12 of the Form Lease is hereby
restated in its entirety as follows:
"(12) It is understood and agreed that if the premises hereby
leased be damaged or destroyed in whole or in part by fire or
other casualty during the term hereof, that Landlord will repair
and restore the same to good tenantable condition with reasonable
dispatch and that the rent herein provided for shall abate
entirely in case the entire premises are untenantable. As used
herein, "untenantable" shall mean that the premises are not
reasonably fit for the conduct of Tenant's business operations. If
less than all of the premises are rendered untenantable by virtue
of the fire or other casualty, then Tenant shall be entitled to a
prorata abatement of rent unless the portion rendered untenantable
is so situated that Tenant's entire business operations are
materially adversely affected, in which event Tenant shall be
entitled to a full rental abatement. Tenant shall not be entitled
to an abatement of rent during any period of delay caused by
Tenant's failure to adjust its own insurance and/or Tenant's
failure to remove its damaged goods, wares, equipment or property
from the premises within a reasonable time. In the event that the
damage to the premises is so extensive that Landlord, using
reasonable efforts, will be unable to repair and restore the
premises within one hundred twenty (120)
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days (or, if Landlord is preceding with due diligence, such
reasonable additional time as may be reasonably required under the
circumstances not to exceed 180 days in total) of the date of the
casualty, then either party shall have the right to terminate this
Lease by delivering written notice to the other. Upon delivery of
such written notice, this Lease shall automatically terminate and
neither party shall have any further obligation to the other
except for those provisions which by their terms are intended to
survive termination and except for obligations maturing prior to
the loss."
14. OPTION TO EXTEND TERM.
(k) Grant of Option. Tenant shall have the option to extend the
term of this Lease for 2 additional periods of 3 years each (each a
"Renewal Term"), as follows:
(i) Upon the expiration date of the initial term, Tenant
may extend the term of this Lease for the first Renewal Term (the
"First Renewal Term") by delivering written notice to Landlord of
Tenant's exercise of such option not less than one hundred eighty
(180) days prior to the expiration date.
(ii) Upon the expiration of the First Renewal Term, Tenant
may extend the term of this Lease for an additional 3 year period
by delivering written notice to Landlord of Tenant's exercise of
such option not less than one hundred eighty (180) days prior to
the expiration of the First Renewal Term.
(iii) Tenant shall not be entitled to extend the term of this
Lease if Tenant is in default under this Lease at the time Tenant
exercises the applicable option.
(l) Adjusted Base Rent. Tenant's possession of the leased
premises during each Renewal Term, if any, shall be under and subject
to all of the terms, covenants and conditions set forth in this Lease,
with the exception that the annual base rent for each Renewal Term
shall be adjusted as follows:
(i) The annual base rent for each Renewal Term shall be
determined by multiplying (a) the annual base rent payable by
Tenant during the last year of initial term or the last year of
the First Renewal Term, as applicable, by (b) a fraction, the
numerator of which shall be the Base Index (as hereinafter
defined) for the second full calendar month which precedes the
commencement date of the applicable Renewal Term, and the
denominator of which shall be the Base Index for the thirty eighth
full calendar month which precedes such commencement date.
(ii) As used herein, the term "Base Index" shall mean and
refer to the United States Department of Labor, Bureau of Labor
Statistics Revised Consumer Price Index for all Urban Consumers
(CPI-U) (1982-1984 = 100) for Detroit - Ann Arbor, Michigan, or
the successor such index. If the Base Index ceases to
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use the 1982-1984 average equaling 100 as the basis of calculation
or if a change is made in the term or number of items contained in
the Base Index, or if the Base Index if altered, modified,
converted or revised in any other way, then the Base Index shall
be adjusted to the figure that would have been arrived at had the
change in the manner of computing the Base Index, in effect at the
date of this Lease, not been altered. If the Base Index is not
published by the Bureau of Labor Statistics or another
governmental agency at any time during the term of this Lease,
then any substitute or successor index published by the Bureau of
Labor Statistics or other governmental agency of the United
States, and similarly adjusted as aforesaid, shall be used. If the
Base Index (or successor or substitute index similarly adjusted)
is not available, a reliable governmental or other reputable
publication selected by Landlord and Tenant shall be used. If the
Base Index is not published for any month for which a computation
is required to be made under subparagraphs (b)(i) and (ii) above,
then the Base Index for the closest preceding month for which a
Base Index is available shall be used.
(iii) In the event Landlord lacks sufficient data to
determine the base rent for the Renewal Term, Tenant shall
continue to pay the monthly rent, and all other charges payable,
immediately prior to the commencement of the Renewal Term. As soon
as Landlord obtains the necessary data, it shall determine the
base rent for the Renewal Term and notify Tenant of such
adjustments in writing. If the amounts due following the
commencement of such Renewal Term exceed the amount previously
paid by Tenant for such period, Tenant shall forthwith pay the
difference to Landlord within thirty (30) days of a written demand
therefor.
(iv) The parties acknowledge that an adjacent suite is being
leased by Landlord to Vyn-L Corporation, which is an affiliate of
Tenant. The Vyn-L suite is not separated from the premises by
partitions. In the event either the premises or the Vyn-L suite is
leased or licensed, to a third party by Landlord, or a third party
occupies the Vyn-L suite through Landlord, then Landlord shall
cause a partition to be constructed separating the Vyn-L suite
from the premises. Such construction shall be performed with due
diligence during normal business hours and in a manner as to
minimize interference with Tenant's business.
15. LEASE STATUS. Landlord acknowledges and agrees that the Lease is
currently in full force and effect, that Tenant has performed all of its
obligations under the Lease through the date hereof and Landlord has no claim
against Tenant arising in connection with any breach of the Lease by Tenant or
otherwise relating to the landlord/tenant relationship or Tenant's occupancy of
the Leased Premises.
16. LATE PAYMENTS. Tenant shall pay Landlord a late payment fee equal
to four (4%) percent of any payment (not to exceed $200), which is not paid
within ten (10) days of the due date.
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17. SECOND FLOOR SPACE. The parties acknowledge that the premises
include space on the second floor of the Building which Tenant has been
occupying (the "Second Floor Space"). As rent for the Second Floor Space, Tenant
shall continue to pay Landlord the sum of $250 per month during the term of the
lease as the same may be extended. Tenant shall have the right to discontinue
its lease of the Second Floor Space upon 30 days prior written notice to
Landlord in which event Tenant shall be relieved of all obligations with respect
to the Second Floor Space including the obligation to pay rent for the Second
Floor Space. The Second Floor Space shall not be included in calculating
Tenant's Pro-Rata Share.
18. NORTH PARKING LOT. Tenant shall have exclusive use of the north
parking lot during the term of the Lease.
LANDLORD:
By: /s/ C. Lane Mally
-----------------------------------
C. Lane Mally
TENANT:
MALLYCLAD CORPORATION, a Michigan
corporation
By: /s/ George S. Hofmeister
-----------------------------------
Its:Chairman
----------------------------
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