UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington DC 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the period ended September 30, 1999
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OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ___________________ to ___________________
Commission File Number: O-1837
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FEDERAL SCREW WORKS
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(Exact name of registrant as specified in its charter)
Michigan 38-0533740
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
535 Griswold Street, Suite 2400, Detroit Michigan 48226
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, and area code (313) 963-2323
-----------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to
such filing requirements for the past 90 days. YES __X__ NO_____
At September 30, 1999, the Company had one class of common stock outstanding,
$1.00 par value common stock. There were 1,071,612 shares of such common
stock outstanding at that time.
(continued)
Part I FINANCIAL INFORMATION
FEDERAL SCREW WORKS
CONDENSED BALANCE SHEETS (UNAUDITED)
(Thousands of Dollars)
Sept. 30 June 30
1999 1999
-------- -------
ASSETS
Current Assets:
Cash ........................................... $ 162 $ 279
Accounts Receivable, Less Allowance of $50 ..... 15,325 15,727
Inventories:
Finished Products .............................. 6,323 4,815
In-Process Products ............................ 6,300 7,210
Raw Materials And Supplies ..................... 2,455 2,851
------- -------
15,078 14,876
Prepaid Expenses And Other Current Accounts .... 277 297
Deferred Income Taxes .......................... 982 958
------- -------
Total Current Assets ........................ 31,824 32,137
Other Assets:
Intangible Pension Asset ....................... 1,722 1,722
Cash Value Of Life Insurance ................... 5,338 5,312
Prepaid Pension Cost ........................... 3,550 3,622
Miscellaneous .................................. 991 992
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11,601 11,648
Property, Plant And Equipment .................... 95,823 94,527
Less Accumulated Depreciation .................. 54,782 53,607
------- -------
41,041 40,920
------- -------
Total Assets ..................................... $84,466 $84,705
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Part I FINANCIAL INFORMATION (Continued)
Sept. 30 June 30
1999 1999
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts Payable ............................... $ 5,908 $ 4,143
Payroll And Employee Benefits .................. 4,178 8,612
Dividends Payable .............................. 2,152 108
Federal Income Taxes ........................... 326 585
Taxes, Other Than Income Taxes ................. 1,531 1,802
Accrued Pension Contributions .................. 297 0
Other Accrued Liabilities ...................... 78 31
Current Maturities Of Long-Term Debt ........... 200 200
-------- --------
Total Current Liabilities ................... 14,670 15,481
Long Term Liabilities:
Long-Term Debt ................................. 3,505 2,100
Unfunded Pension Obligation .................... 1,321 1,321
Postretirement Benefits Other Than Pensions .... 10,285 9,865
Deferred Income Taxes .......................... 2,093 2,006
Employee Benefits .............................. 1,055 1,081
Other Liabilities .............................. 743 723
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Total Long-Term Liabilities ................. 19,002 17,096
Stockholders' Equity:
Common Stock, $1.00 Par Value, Authorized
2,000,000 Shares; 1,071,612 Shares Outstanding
at Sept. 30, 1999 and 1,076,162 at June 30, 1999 1,072 1,076
Additional Capital ............................. 3,269 3,269
Retained Earnings .............................. 47,082 48,412
Accumulated Other Comprehensive Income ......... (629) (629)
-------- --------
Total Stockholders' Equity .................. 50,794 52,128
-------- --------
Total Liabilities and Stockholders' Equity ....... $ 84,466 $ 84,705
======== ========
See Accompanying Notes.
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FEDERAL SCREW WORKS
CONDENSED STATEMENTS OF OPERATIONS (UNAUDITED)
(Thousands of Dollars, Except Per Share)
Three Months Ended Three Months Ended
September 30, 1999 September 30, 1998
------------------ ------------------
Net Sales ............................ $27,068 $25,468
Costs And Expenses:
Cost of Products Sold ............. 23,746 22,228
Selling And Administrative Expenses 1,690 1,633
Interest Expense .................. 34 42
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Total Costs and Expenses ....... 25,470 23,903
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Earnings Before Federal
Income Taxes ...................... 1,598 1,565
Federal Income Taxes ................. 544 532
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Net Earnings ......................... $ 1,054 $ 1,033
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Per Share Of Common Stock:
Basic and Diluted Earnings Per Share . $ .98 $ .95
======= =======
Cash Dividends Declared Per Share .... $ 2.00 $ 1.90
======= =======
See Accompanying Notes.
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FEDERAL SCREW WORKS
CONDENSED STATEMENTS OF CASH FLOWS (UNAUDITED)
(Thousands of Dollars)
Three Months
Ended
September 30
---------------
1999 1998
---- ----
Operating Activities
Net Earnings .................................... $ 1,054 $ 1,033
Adjustments to Reconcile Net Earnings to Net Cash
Provided By (Used In) Operating Activities:
Depreciation and Amortization ............... 1,199 1,090
Increase In Cash Value of Life Insurance .... (27) (27)
Change In Deferred Income Taxes ............. 63 (131)
Employee Benefits ........................... (26) (1)
Other ....................................... 515 499
Changes In Operating Assets And Liabilities:
Accounts Receivable ........................ 402 (1,457)
Inventories And Prepaid Expenses ........... (182) 85
Accounts Payable And Accrued Expenses ...... (2,855) (3,304)
------- -------
Net Cash Provided By Operating Activities ......... 143 (2,213)
Investing Activities
Purchases of Property, Plant And Equipment-Net .. (1,320) (664)
Financing Activities
Proceeds From Bank Borrowings ................... 1,405 2,070
Purchase of Common Stock ........................ (237) 0
Dividends Paid .................................. (108) (109)
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Net Cash Used In Financing Activities ............. 1,060 1,961
------- -------
Decrease In Cash .................................. (117) (916)
Cash At Beginning Of Period ....................... 279 975
------- -------
Cash At End Of Period ............................. $ 162 $ 59
======= =======
See Accompanying Notes.
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FEDERAL SCREW WORKS
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
Note A - Basis of Presentation
The accompanying unaudited condensed financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial reporting. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. The results of operations for the three
months ended September 30, 1999, are not necessarily indicative of the
results to be expected for the fiscal year ending June 30, 2000.
Note B - Debt
On October 13, 1999, Comerica Bank approved a one year extension of the
Company's $25,000,000 Revolving Credit and Term Loan Agreement. Under the
agreement the Company has the option to convert borrowings thereunder
(classified as long-term debt) to a term note through October 31, 2002, the
expiration date of the agreement. Payments under the term note, if the
conversion option is exercised, would be made quarterly and could extend to
October 31, 2004. As of September 30, 1999, there was $3,505,000 in
outstanding borrowings under the Revolving Credit and Term Loan Agreement.
Note C - Dividends
Cash dividends per share are based on the number of shares outstanding at the
respective dates of declaration.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS: Net sales for the Company's first quarter ended
September 30, 1999, increased $1,600,000, or 6.3%, compared with net sales
for the first quarter of the prior year. The increase is attributable mainly
to continued strong demand for the Company's products.
Gross profit for the three month period ended September 30, 1999, increased
$82,000, or 2.5%, as compared with gross profit for the first quarter of the
prior year. The increase is attributable mainly to additional volume and
improved product mix.
Selling and administrative expenses increased $57,000, or 3.5%, for the first
quarter ended September 30, 1999, as compared with the first quarter of the
prior year. The increase is mainly attributable to increases in compensation
and related expenses.
The Registrant's Shareholders are aware of the Registrant's dependence upon
sales to the two largest U.S. automobile manufacturers, a condition that has
existed for at least fifty years. Although the Registrant has purchase orders
from such customers, such purchase orders generally provide for supplying the
customer's requirements for a particular model or model year rather than for
manufacturing a specific quantity of products. The loss of any one of such
customers or significant purchase orders could have a material adverse effect
on the Registrant. These customers are also able to exert considerable
pressure on component suppliers to reduce costs, improve quality and provide
additional design and engineering capabilities. There can be no assurance
that the additional costs of increased quality standards, price reductions or
additional capabilities
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required by such customers will not have a material adverse effect on the
financial condition or results of operations of the Registrant.
YEAR 2000 MATTERS: The Company completed a comprehensive review of its
operations related to the "Year 2000" issue during fiscal 1998. This review
included an assessment of the Company's mainframe computer system, operating
and application systems, microcomputer and office systems, facilities, and
production equipment. This review also included correspondence with major
vendors and customers. Management believes it has identified those systems
that could be affected by the "Year 2000" issue. The Company has implemented
a plan to resolve these issues.
During the fiscal year ended June 30, 1998, the Company installed a new
mainframe computer system and operating system that are "Year 2000"
compliant. Implementation and testing of mainframe applications were
completed in fiscal 1999. The Company believes that, with modification of its
existing computer systems and updates by vendors in the ordinary course of
business, the "Year 2000" issue will not pose significant operational
problems of the Company's computer systems. However, if such modifications
are not made, or are not completed timely, the "Year 2000" issue could have a
material impact on the operations of the Company.
The Company has developed contingency plans for its significant operations
and is continuously monitoring the progress toward the established "Year
2000" plan. These plans include preliminary discussions with the Company's
primary software vendors to replace critical applications that may become
inoperable as a result of the "Year 2000" issue. The Company may increase
inventory levels to insure that supplies are not interrupted.
The total "Year 2000" project cost is estimated at approximately $400,000,
which includes estimated costs to be incurred to acquire upgraded software
that has been capitalized. These costs have been paid for with cash from
operations.
DIVIDENDS: The Board of Directors, in August 1999, declared a $.10 per share
quarterly dividend, and an extra $1.90 per share dividend, both payable
October 1, 1999, to shareholders of record September 3, 1999.
LIQUIDITY AND CAPITAL RESOURCES: Working capital increased by $498,000 from
$16,656,000 at June 30, 1999, to $17,154,000 at September 30, 1999.
At September 30, 1999, the Company had available $21,495,000 under its bank
credit agreement.
Capital expenditures for the three month period ended September 30, 1999,
were approximately $1.3 million, and, for the year, are expected to
approximate $7.1 million, of which approximately $3.0 million has been
committed as of September 30, 1999.
There have been no material changes concerning environmental matters since
those reported in the Registrant's Report on Form 10-K for the fiscal year
ended June 30, 1999.
FORWARD LOOKING STATEMENTS: The foregoing discussion and analysis contains a
number of "forward looking statements" within the meaning of the Securities
Act of 1933 and the Securities Exchange Act of 1934, both as amended, with
respect to expectations for future periods which are subject to various
uncertainties, including competition, Information Systems issues related to
the Year 2000, the
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loss of, or reduction in business with, the Company's principal customers,
work stoppages, strikes and slowdowns at the Company's facilities and those
of its customers; adverse changes in economic conditions generally and those
of the automotive industry, specifically.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The Company's market risk is limited to interest rate risk on its
revolving credit and term loan agreement and its lease-purchase obligation.
At September 30, 1999, the carrying amounts reported in the balance sheets
for cash, accounts receivable, accounts payable, debt and investments
approximate fair value. The aggregate fair value of the Company's
lease-purchase obligation approximates its recorded amount at September 30,
1999. Accordingly, management believes this risk is not material.
PART II OTHER INFORMATION
Item 1. Legal Proceedings
The information set forth at the conclusion of the Liquidity and
Capital Resources discussion in Item 2 of Part I concerning environmental
matters is incorporated by reference.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit 10.2 One Year Extension of Revolving Credit and
Term Loan Agreement By and Between Registrant and Comerica
Bank Dated October 13, 1999.
Exhibit 10.3 Lease Agreement For the Lease of New Corporate
Headquarters By and Between Registrant and Safran Development,
LLC, Dated October 26, 1999.
Exhibit 27 Financial Data Schedule.
(b) Reports on Form 8-K. There was no SEC Form 8-K filed this
quarter. There were no unusual charges or credits to income,
nor a change in independent accountants.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Federal Screw Works
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Date November 12, 1999 /s/ W.T. ZurSchmiede, Jr.
------------------- ---------------------------------
W. T. ZurSchmiede, Jr.
Chairman, Chief Executive Officer
and Chief Financial Officer
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Exhibit Index:
Exhibit 10.2 One Year Extension of Revolving Credit and
Term Loan Agreement By and Between Registrant
and Comerica Bank Dated October 13, 1999.
Exhibit 10.3 Lease Agreement for the Lease of New Corporate
Headquarters By and Between Registrant and Safran
Development, LLC Dated October 26, 1999.
Exhibit 27 Financial Data Schedule
[ LOGO ]
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Comerica Bank
One Detroit Center
P.O. Box 7500
Detroit, MI 48275-3265
Phone: (313) 222-5431
Robert M. Ramirez
Account Officer
U.S. Banking - Automotive
Facsimile: (313) 222-3776
October 13, 1999
Mr. W.T. ZurSchmiede, Jr.
Chairman
Federal Screw Works
2400 Buhl Building
Detroit, Michigan 48226
Dear Mr. ZurSchmiede,
Per your request dated September 3, 1999 and pursuant to Section 2.13 of the
Revolving Credit and Term Loan Agreement between Federal Screw Works and
Comerica Bank, the Bank has approved the one year extension for the Revolving
Credit Facility and Term Loan option. The new maturity dates for the
facilities are October 31, 2002 and October 31, 2004, respectively.
Additionally, Section 8.12 of the agreement has been amended to increase the
per annum capital expenditures limit to $14,000,000.
Please feel free to contact me if you have any questions.
Best Regards,
/s/ Robert M. Ramirez
Robert M. Ramirez
cc: Wade Plaskey
LEASE AGREEMENT
THIS LEASE is made October 26, 1999 between the following parties:
LANDLORD: SAFRAN DEVELOPMENT, L.L.C. whose address is
21611 E. Eleven Mile Road,
St. Clair Shores, Michigan 48081.
TENANT: FEDERAL SCREW WORKS, whose address is
20229 Nine Mile Road, St. Clair
Shores, Michigan 48080
=============================================================================
SUMMARY OF LEASE TERMS.
The following summary (the "Summary") is intended to summarize the pertinent
terms of this Lease and is not intended to be exhaustive. In the event
anything set forth in this Summary conflicts with the other specific
provisions of this Lease, the specific provisions of the Lease shall be
deemed to control in the absence of expressed contrary intent.
A. THE PREMISES.
Approximately 11,712 square feet of space located on the second
floor of the Building commonly known as 20229 Nine Mile Road, St.
Clair Shores, Michigan as outlined and depicted on the floor plan
attached hereto as Exhibit "A-1".
B. THE TERM.
Target Commencement Date: January 3, 2000, subject to the provisions
of Section 2 of the Standard Covenants, Terms and Conditions.
Expiration Date: December 31, 2009, subject to Tenant's option to
extend the Term (as hereinafter defined) and Tenant's option to
terminate this Lease, in each case, pursuant to Section 2.01 of this
Lease.
C. RENT. Base Rent: Tenant shall pay Base Rent in equal monthly
installments as set forth below:
Year(s) Annual Rent Monthly Installment
------- ----------- -------------------
1-5 $193,248.00 $16,104.00
6 $199,045.00 $16,587.08
7 $205,017.00 $17,084.75
8 $211,167.00 $17,597.25
9 $217,502.00 $18,125.17
10 $224,027.00 $18,668.92
11* $230,748.00 $19,229.00
12* $237,670.00 $19,805.83
13* $244,800.00 $20,400.00
14* $252,144.00 $21,102.00
15* $259,708.00 $21,642.33
16* $267,499.00 $22,291.58
17* $275,524.00 $22,960.33
18* $283,790.00 $23,649.17
19* $292,304.00 $24,358.67
20* $301,073.00 $25,089.42
* Assumes Term is extended pursuant to Section 2.01 of this Lease.
In connection with Tenant's preparation of space plan drawings,
Tenant shall receive a rent credit in the amount of $1,000 which may
be offset against the first full monthly installment of Base Rent
payable by Tenant hereunder.
Initial Monthly Installment for Additional Rent: $4,880.00 per month.
The first installment of Base Rent and additional rent (as
hereinafter defined) shall be made on the Commencement Date. All
other installments of Base and additional rent shall be paid in
advance, without offset or reduction (except as otherwise provided
herein), on the first day of each and every month (the "Rent Day")
during the term at the office of Landlord at the address shown on the
cover page of this Lease, without late payment charge or interest if
paid within five (5) days following the due date.
D. TENANT'S PROPORTIONATE SHARE...................... 50%
E. [INTENTIONALLY OMITTED]
2
F. LIMITS OF INSURANCE.
1. If dual limits: Bodily Injury: $1,000,000 per person
$2,000,000 per occurrence
Property Damage: $2,000,000 per occurrence
2. If single limit: $2,000,000
G. THE USE.
General office use and incidental and ordinary related uses.
3
STANDARD COVENANTS, TERMS AND CONDITIONS
SECTION 1: PREMISES AND TENANT IMPROVEMENTS
1.01 In consideration of the rent to be paid and the covenants and
agreements to be performed hereunder, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord the premises described
in paragraph A of the Summary (the "Premises"), located in the office
building, commonly known as 20229 Nine Mile Road, St. Clair Shores,
Macomb County, Michigan (the "Building"), together with (i) the
exclusive right to utilize twenty-five (25) reserved parking spaces
along the northerly border of the parking lot servicing the Building,
which spaces are more particularly depicted in attached Exhibit "A-2"
and for which Landlord, at its sole cost and expense, shall promptly
install appropriate signage designating such spaces as being reserved
for Tenant's exclusive use; and (ii) the nonexclusive use of the
other common areas in or appurtenant to the Building and located on
the Real Estate (as hereinafter defined).
1.02 Landlord, at its sole cost and expense, agrees to complete the work
described in attached Exhibit "B" (the "Tenant Improvements") by
December 24, 1999.
1.03 Landlord will complete all Tenant Improvements by such licensed and
qualified contractors and mechanics as may be reasonably selected by
Landlord. The Tenant Improvements shall be constructed in accordance
with working plans, drawings and specifications prepared by Landlord,
at Landlord's sole cost and expense, which shall be consistent with
Exhibit B attached hereto and shall be subject to Tenant's prior
written approval. Landlord shall perform Tenant's Improvements in a
good workmanlike manner with new and proper materials in conformity
with, and pursuant to, all applicable requirements of law and of duly
constituted governmental authority. Upon completion of the Tenant
Improvements the Premises shall be left in a safe, clean tenantable
condition and in good order and repair.
SECTION 2: TERM; OPTION(S) TO EXTEND AND TERMINATE
2.01 Term. Provided a certificate of occupancy for the Premises has been
issued by a duly constituted governmental authority having
jurisdiction thereover, the "Term" will commence (the "Commencement
Date") on the earlier of:
(i) the date Tenant commences its office operations in the
Premises, or
(ii) the date which is ten (10) days following the date on which
the Premises are "ready for occupancy" (as defined below).
The Term will expire on the Expiration Date shown in Paragraph B of
the Summary, subject to Tenant's option(s) to extend the Term and
Tenant's option to terminate the Term, in each case, pursuant to
this Section 2.01. If for any reason the Premises are not delivered
to Tenant ready for occupancy on or before December 24, 1999
("Possession Date"), then Tenant shall receive one (1) day's "free
rent" for each day that Tenant's actual possession of the Premises
is delayed beyond the Possession Date which "free rent" days shall
be deemed credits to Tenant's account beginning with the
Commencement Date of the Term and shall
4
be in addition to any other "free rent" period the Tenant is
entitled to under the terms of this Lease. Notwithstanding the
preceding sentence, if for any reason the Premises are not delivered
to Tenant ready for occupancy by March 1, 2000, Tenant may, at its
option, cancel and terminate this Lease upon ten (10) days written
notice to Landlord. In the event this Lease is terminated by Tenant
pursuant to the provisions of this paragraph, Tenant shall be
released from all of its obligations hereunder.
Option to Extend. Provided the Tenant is not then in default under
this Lease, the Tenant shall have the option to extend the Term of
this Lease for two (2) additional periods of five (5) years each.
Tenant shall exercise each said option by giving the Landlord
written notice of such election not less than one hundred and eighty
(180) days prior to the expiration of the then existing term.
Excepting the adjustment in the Base Rent provided for in Paragraph
C of the Summary, all of the other applicable terms and conditions
of this Lease shall apply during the renewal term(s).
Option to Terminate. Tenant shall have the option to terminate this
Lease, effective upon the expiration of the sixth (6th), seventh
(7th), eighth (8th) or ninth (9th) lease years (as hereinafter
defined), on the terms and subject to the conditions set forth
below:
(i) Tenant shall provide Landlord with not less than twelve (12)
months' prior written notice (the "Termination Notice") of
its election to terminate this Lease effective immediately
upon the expiration of the sixth (6th), seventh (7th),
eighth (8th) or ninth (9th) lease year, as applicable.
Tenant shall not have the right to terminate this Lease at
any time other than as specified in the immediately
preceding sentence.
(ii) The Termination Notice shall be accompanied by a termination
fee payable to Landlord in the amount set forth below:
Effective Date of Termination Termination Fee
----------------------------- ---------------
End of sixth (6th) lease year $59,740.00
End of seventh (7th) lease year $84,722.00
End of eighth (8th) lease year $84,722.00
End of ninth (9th) lease year $84,722.00
(iii) If Tenant exercises its option to terminate this Lease upon
the expiration of the sixth (6th) lease year in accordance
with the provisions set forth above, then notwithstanding
anything contained in this Lease to the contrary, the annual
Base Rent payable by Tenant for the sixth (6th) lease year
shall equal $224,027.00 (or $18,668.92 per month). If Tenant
exercises its option to terminate this Lease upon the
expiration of the seventh (7th), eighth (8th) or ninth (9th)
lease years in accordance with the provisions set forth
above, the annual Base Rent payable by Tenant for said lease
years shall remain as set forth in Paragraph C of the
Summary.
5
The term "lease year" as used herein shall mean a twelve (12) month
period commencing January 1 and ending December 31, provided,
however, regardless of when the Term of this Lease shall commence,
the first lease year shall be deemed to be the period from the
Commencement Date through December 31, 2000.
2.02 The Target Commencement Date shown in Paragraph B of the Summary
represents Landlord's estimate of the date on which the Commencement
Date will occur. Landlord agrees to use its best efforts to complete
all work to be performed by Landlord pursuant to Exhibit "B" and to
tender possession of the Premises to Tenant on or before the
Possession Date.
2.03 Taking of possession by Tenant shall constitute an acknowledgment
that the Premises has been satisfactorily completed except for any
patent defects of which Tenant gives Landlord written notice thereof
within thirty (30) days following the date Landlord delivers
possession of the Premises to Tenant ready for occupancy or any
latent defects of which Tenant notifies Landlord in writing within
twelve (12) months following such Possession Date, any and all of
which such defects shall be repaired by Landlord, at Landlord's sole
cost and expense, with reasonable dispatch following its receipt of
Tenant's notice therefor.
2.04 The Premises will be deemed "ready for occupancy" under paragraphs
2.01 and 2.02 as soon as the Tenant Improvements to be performed by
Landlord under Exhibit "B" have been substantially completed and may
be utilized for their intended purpose. If only minor or
insubstantial details of construction, decoration or mechanical
adjustments remain to be completed or if the delay in the completion
of Landlord's work is caused by Tenant, then the Premises
nevertheless will be deemed "ready for occupancy".
2.05 The Commencement and Expiration Dates shall be confirmed by the
parties by executing a memorandum of the actual Commencement and
Expiration Dates, but failure or refusal of Tenant to do so shall
not affect any obligation of Tenant hereunder or Landlord's
determination of the Commencement Date pursuant to this Section 2.
SECTION 3: BASE RENT
3.01 Tenant shall pay to Landlord as Base Rent during the Term the amount
shown in Paragraph C of the Summary, in the monthly installments
shown.
3.02 Each monthly installment of rent will be paid in advance in the
manner set forth in Section 5 hereof. The first installment shall be
due and payable on the Commencement Date and each succeeding
installment shall be due and payable on the first day of each and
every month thereafter (the "Rent Day") during the Term at the
office of the Landlord at the address shown on the cover page of
this Lease or at such other place as Landlord may designate from
time to time in writing. The Base Rent and Additional Rent for a
partial calendar month, if any, at the beginning of the Term shall
be prorated on a daily basis (based on the actual number of days in
the applicable calendar month) and shall be payable on the
Commencement Date.
6
SECTION 4: ADDITIONAL RENT
4.01 Definitions
(i) "Real Estate Taxes" means real estate taxes and assessments,
general and special, assessed and levied upon the Building and
the Real Estate. The "Building" means the Building of which
the Premises are a part and "Real Estate" means the land on
which the Building is situated and, as and to the extent
designated by Landlord, the parking areas, walks, drives,
plazas, landscaped areas and other common areas located on the
Real Estate and serving the Building. For purposes of
calculating Real Estate Taxes hereunder, 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 would become due and
payable by virtue of such provisions during the Term of this
Lease or any extension hereof, together with any interest
thereon, will be included in the calculation of Real Estate
Taxes. In the event that the United States or the city,
county, state or other political subdivision of any
governmental authority having jurisdiction imposes a tax,
assessment or surcharge of any kind or nature upon, against,
measured by or with respect to the rentals payable by the
tenants of the Building or on the income of Landlord derived
from the Building (expressly excluding any portion of
Landlord's Michigan Single Business Tax), or with respect to
Landlord's ownership of the Building and the Real Estate
either by way of substitution for all or any part of the taxes
and assessments levied or assessed against the Building and
the Real Estate, or, in addition thereto (but not including
federal, state or local income taxes unless levied by way of
substitution), such tax, assessment or surcharge will be
deemed a Real Estate Tax for purposes of this Section. In no
event shall the Real Estate Taxes include any penalty or
interest charge which may be due by virtue of Landlord's late
or non-payment thereof. In addition, the term "Real Estate
Taxes" shall not include any taxes measured by the net income
of Landlord, franchise, succession, inheritance or real estate
transfer taxes.
(ii) "Operating Expenses" means and includes all reasonable
operating costs and expenses and obligations of every kind,
foreseen and unforeseen, relating to the management,
operation, use, care and maintenance of the Building and
common areas of the Real Estate, including, without
limitation, the following:
(1) The cost of all common utilities and services
provided pursuant to Section 9 hereof and not
otherwise directly metered and separately billed
to the individual tenants of the Building.
(2) The allocable portion of wages and salaries of
any on-site employees and an allocable portion
of wages and salaries of off-site property
management personnel engaged in the operation,
maintenance or security of the Building,
including employer's social security taxes,
unemployment taxes or insurance, and any other
taxes charged to Landlord which may be levied on
such wages and salaries (provided, however, the
foregoing shall not impose any obligation to pay
such items directly to the personnel entitled
thereto but only to Landlord as a reimbursement
therefor); uniforms of Landlord's service and
7
maintenance personnel; automobile allowances;
the cost of disability and hospitalization
insurance and workmen's compensation and pension
or retirement and vacation and all other
benefits for such employees incurred by
Landlord.
(3) Payments made by Landlord for personal property
taxes (except those payable by Tenant or other
tenants), relating to equipment, tools and
expenses of the office of the Building, if any.
(4) The cost of all supplies and materials
exclusively used in the operation and
maintenance of the Building.
(5) The cost of all utilities and reasonably
necessary or advisable communications services
for the Building, including but not limited to
water and power, sewer, heating (steam or
other), lighting, air-conditioning and
ventilating, but only to the extent not directly
metered and separately billed to the individual
tenants of the Building.
(6) The cost of all repairs, management, maintenance
and service agreements and equipment rental
agreements for the Building or for equipment
therein, such as and including but not limited
to management, janitorial, security and
exterminating services, elevator maintenance and
repair services, alarm service, window cleaning,
rubbish and snow and ice removal, telephone and
landscape maintenance, bonds posted or amounts
incurred in connection with the management of
maintenance of the Building; provided, however,
the foregoing shall not include leasing
commissions, legal fees, advertising or
promotional costs or expenses, the cost of
tenant alterations, mortgage interest and
principal payments, and depreciation on the
Building or equipment.
(7) The cost of all insurance applicable to the
Building or the Real Estate (other than
insurance required to be carried by tenants),
including but not limited to fire, casualty,
extended coverage risks, vandalism and malicious
mischief, boiler and pressure apparatus
insurance, if applicable, war damage,
catastrophic excess, loss of rent or rent (or
business) interruption insurance and liability
insurance applicable to the Building, including
all insurance required to be carried by Landlord
under this Lease or by Landlord's mortgagee or
ground lessor, if any.
(8) [INTENTIONALLY OMITTED.]
(9) The cost of all repairs, replacements and
general maintenance, including, without
limitation, all costs of landscaping, parking
lot and roof repairs with respect to the
Building; provided, however, the foregoing shall
not include such items to the extent Landlord is
compensated through the proceeds of insurance or
condemnation nor such items if the incurring
9
thereof shall be solely for the benefit of a
tenant other than Tenant and not otherwise
benefiting the Premises or the Building.
(10) [INTENTIONALLY OMITTED.]
(11) All expenses and costs incurred by Landlord
after the Commencement Date (other than for
capital improvements or alterations as a result
of or in order to comply with laws (including,
without limitation, local ordinances, codes or
regulations)).
(iii) Exclusions from Operating Expenses. Notwithstanding anything
to the contrary contained in this Section 4, the following
shall not be included within the term "Operating Expenses":
(1) costs, including permit, license and inspection costs,
incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant tenant
space or space of other tenants in the Building or to
correct defects in the construction of the Building;
(2) principal payments, interest or other financing
charges relating to any financing of the Real Estate
or rents under a ground lease or any other underlying
lease wherein Landlord is the lessee;
(3) wages, salaries, fees and fringe benefits paid to
administrative or executive personnel or officers,
members or partners of Landlord;
(4) any charge relating to Landlord's income taxes, excess
profit taxes or franchise taxes;
(5) deductibles or self-insured retentions in excess of
Ten Thousand Dollars ($10,000.00) under liability or
property insurance policies;
(6) any costs relating to the solicitation, execution and
enforcement of leases of other tenant space in the
Building;
(7) the cost of any electrical current or other utility
service furnished to any other leasable area of the
Building;
(8) the cost of any repair or maintenance to the Building
or the common areas of the Building or the Real Estate
thereof caused or necessitated by the negligence of
Landlord, its agents, contractors or employees;
(9) except as otherwise set forth in this Section
4.01(iii), the cost of any alterations, additions,
changes, improvements and/or replacements which may
not properly be expensed for federal income tax
purposes;
9
(10) any costs for which Landlord is reimbursed by tenants
of the Building, it being expressly understood and
agreed that Tenant shall have no obligation to pay any
costs associated with the repair and/or replacement of
the HVAC system exclusively serving any other tenant
of the Building;
(11) any reserves for future expenses not yet incurred;
(12) the cost of (a) removal of any asbestos, asbestos
containing material or other toxic or hazardous
substances or material from the Building or the land
and improvements comprising the Real Estate or (b) any
environmental reports or studies relating thereto;
(13) amounts paid or incurred by Landlord to any of its
affiliates in excess of the prevailing market rate for
management or services or for supplies or materials;
and
(14) Landlord's general corporate overhead and general
administrative expenses other than those permitted in
Clause (ii) above.
There shall be no duplication of charges to Tenant pursuant to this
Section 4 and any other provisions of this Lease. Subject to the
provisions of the immediately following sentence, notwithstanding
anything to the contrary contained in this Lease, the term
"Operating Expenses" shall not include, and Tenant shall have
absolutely no responsibility for paying any portion of, the amount
of any expenses incurred in connection with (i) the resurfacing or
replacement of the parking area located on the Real Estate, (ii) the
replacement of the roof membrane or structure on the Building, (iii)
the replacement of the foundation, walls or other structural
portions of the Building, (iv) the replacement of any of the utility
systems serving the Building, whether located within or outside the
Building, and (v) the replacement of any of the heating, ventilating
and cooling ("HVAC") systems (including any compressor) serving
either individual tenants, including Tenant, or the Building. It is
understood and agreed that the repair or replacement of individual
components of any of the foregoing or of any other Building system
(whether or not the same may be properly expensed for federal income
tax purposes) shall be included in the Operating Expenses. For
example, the replacement of individual sprinkler heads, the patching
of the parking area, the patching of portions of the roof, the
replacement of a pump servicing the Building elevator or the
replacement of fan belts and filters for the HVAC system shall
constitute normal repair items which shall be includable in
Operating Expenses.
(iv) "Tenant's Proportionate Share" means the percentage set
forth in Paragraph D of the Summary.
(v) "Tax and Operating Expense Statements" means written
statements, certified by Landlord, showing, in reasonable
detail, the amounts of Real Estate Taxes and Operating
Expenses for each fiscal year of Landlord which includes any
portion of the Term or any renewal or extension thereof.
10
4.02 Payment of Proportionate Share of Real Estate Taxes. Landlord agrees
to pay, on or before the due date(s) thereof, all Real Estate Taxes
levied or assessed against the Real Estate. Tenant shall pay to
Landlord as additional rent Tenant's Proportionate Share of any Real
Estate Taxes which become due and payable in any fiscal year of
Landlord during the Term of this Lease. Any such payments will be
prorated for the first year and last year of the Term, as may be
extended, based on a 365-day year and the actual number of days of
the Term falling within such fiscal years, and using the prior
year's Real Estate Taxes for estimating taxes not yet billed by the
taxing authorities (adjustments necessary to reflect the actual
amount of any such taxes so estimated to be made on a retroactive
basis upon receipt of the actual tax bills relating thereto).
Payments due under this paragraph will be due at the time specified
in 4.04 of this Section. The term "additional rent" as used in this
Lease shall mean the sums of money required to be paid to Landlord
pursuant to this Section 4 and any other sums of money or other
charges required to be paid by Tenant under this Lease.
4.03 Payment of Proportionate Share of Operating Expenses. Tenant shall
pay to Landlord, as additional rent, Tenant's Proportionate Share of
any Operating Expenses which become due in any fiscal year of
Landlord during the Term of this Lease. Any such payments will be
prorated for the first fiscal year and last fiscal year of the Term.
Payments due pursuant to this paragraph will be due at the time
specified in 4.04 of this Section.
4.04 Payment. Additional rent due under this Section will be payable in
monthly installments, in advance, on each Rent Day during the Term
and any extensions or renewals thereof. The amount of the monthly
installments will reasonably be estimated by Landlord and may be
increased by Landlord at any time Landlord reasonably believes such
adjustment to be necessary or appropriate to fully cover current and
future Real Estate Taxes and Operating Expenses within ninety (90)
days following the end of each fiscal year of Landlord, Landlord
will compute the actual Real Estate Taxes and Operating Expenses
incurred during that year and will deliver to Tenant a tax and
operating expense statement (the "Statement") for such year. If the
installments paid by Tenant during that year are less than the
additional rent due under this Section for such year, the difference
will be paid to Landlord within thirty (30) days following delivery
of the Statement. If the installments paid by Tenant during that
year are more than the additional rent due for such year, at
Tenant's option, the difference either will be held by Landlord and
applied against the next installment(s) of additional rent falling
due or will be repaid within thirty (30) days following delivery of
the Statement. If Tenant desires to verify Landlord's determination
of additional rent as calculated on the Statement each year, Tenant
may request, and Landlord shall provide Tenant with, access (at
Landlord's office located in the Detroit, Michigan metropolitan
area) to Landlord's books and records pertaining to Operating
Expenses and Real Estate Taxes for the purpose of reviewing,
calculating and verifying Tenant's Proportionate Share of any Real
Estate Taxes and Operating Expenses. Tenant may review the pertinent
books and records during normal business hours. This information
shall be made available to Tenant by Landlord within fifteen (15)
days after Tenant's request. Notwithstanding the foregoing, in no
event may Tenant review pertinent books and records for any period
earlier than two (2) years prior to the year in which Landlord
delivers the most recent Statement. In addition, once having
conducted a review of Landlord's books and records with respect to a
given year, Tenant shall have no right to conduct another review for
said year. If Tenant's review of Landlord's books and records
pertaining to the Operating Expenses and Real Estate Taxes shall
disclose
11
that Tenant has paid more than required under the terms of this
Lease, Landlord shall, within thirty (30) days after Tenant's
request therefor, pay Tenant the amount of the overpayment, together
with the reasonable cost of such review incurred by Tenant, provided
Landlord shall not be obligated to pay the cost of such review
unless it shall disclose that Landlord over billed Tenant by four
percent (4%) or more.
4.05 Payment for Additional Services Rendered by Landlord and Expenses
Incurred by Landlord. In addition to payment by Tenant of Tenant's
Proportionate Share of increases in the Operating Expenses and Real
Estate Taxes, if Landlord at any time (i) does any work or performs
any service in connection with the Premises, or (ii) supplies any
materials to the Premises as distinguished from costs or expenses
for the Building as a whole, then the reasonable cost of these
services, work or materials is Tenant's responsibility under the
provisions of this Lease. Landlord will invoice Tenant for the
reasonable cost (plus an additional overhead charge of ten percent
(10%) of such costs if the services for which such costs are
incurred are not separately metered) as additional rent, payable
within five (5) days after delivery of the invoice. This paragraph
4.05 will only apply to any such work, services or materials
furnished at Tenant's request and furnished or caused to be
furnished by Landlord or its agents, employees or contractors. All
additional work, services or materials shall be performed or
furnished by Landlord's employees or agents, or by such contractors,
mechanics and suppliers as may be employed or utilized by Landlord.
Tenant will also pay as additional rent from time to time, when and
as incurred by Landlord and upon Landlord's invoice, all reasonable
costs or expenses which through any lawful and practicable separate
metering or otherwise are allocated to the Premises or identified as
relating to Tenant's use and occupancy of the Premises (including
but not limited to that portion of any real estate taxes,
assessments, fees or charges attributable, in the reasonable
judgment of Landlord, solely to property of Tenant), as
distinguished from costs or expenses allocable to the Building as a
whole or to other tenants.
Failure by Tenant to pay the above costs as additional rent when due
will be a default under this Lease and further will result in the
assessment of late charges and interest as specified under paragraph
6.01 of this Lease.
SECTION 5: MANNER OF PAYMENT
5.01 The Base Rent, additional rent and all other charges payable by
Tenant hereunder will be paid promptly when due, without relief from
valuation laws, notice or demand therefor, and without deduction,
abatement, counterclaim or setoff for any reason whatsoever, except
as otherwise provided herein. All amounts payable by Tenant to
Landlord under the provisions of this Lease will be paid by Tenant
in lawful money of the United States at the place herein provided
for notices to Landlord or at such other place or to such other
person as Landlord may from time to time designate by notice to
Tenant.
SECTION 6: DELINQUENT PAYMENTS
6.01 If Tenant neglects or fails to pay within ten (10) days after the
date it receives a written notice from Landlord that the same is due
and payable, any Base Rent, additional rent or any other amount
required to be paid to Landlord under this Lease, Tenant shall pay
to Landlord, in
12
addition to such unpaid amounts, a late payment charge and interest
upon such unpaid amounts from ten (10) days after the due date
thereof to the date of payment at the Applicable Rate as defined in
subparagraph (ii) of this paragraph 6.01; provided, however,
Landlord shall not be obligated to give Tenant the aforesaid notice
more often than twice during any twelve (12) month period during the
Term of this Lease.
(i) Late Payment Charges. Tenant acknowledges that late
payment by Tenant to Landlord of Base Rent or
additional rent or any other amount required to be
paid to Landlord under this Lease will cause Landlord
to incur costs not contemplated by this Lease, the
exact amount of which is extremely difficult and
impracticable to ascertain. Such administration costs
include, without limitation, processing and accounting
charges and late charges that may be imposed upon
Landlord by virtue of its debt obligations.
Accordingly, if Tenant fails to make any of such
payments within ten (10) days after Tenant's receipt
of written notice from Landlord that such payment is
due (provided, however, Landlord shall not be
obligated to furnish Tenant the foregoing notice more
often than twice during any twelve (12) month period
during the Term of this Lease), Tenant shall pay a
late charge (in addition to the interest payable under
subparagraph (ii) below) equal to Two Hundred Fifty
Dollars ($250.00). The parties acknowledge that such
late charge represents a fair and reasonable estimate
of the administrative costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such
late charge by Landlord shall in no event constitute a
waiver of Tenant's default with respect to such
overdue amount nor prevent Landlord from exercising
any of the other rights and remedies granted
hereunder.
(ii) Interest Charge; Applicable Rate. If Tenant neglects
or fails to pay, within five (5) days after the date
the same is due and payable, any Base Rent, additional
rent or any other amount required to be paid to
Landlord under this Lease, Tenant will pay an interest
charge on all such unpaid amounts (other than the late
payment charge) at an applicable rate per annum equal
to two percent (2%) over the prime interest rate
charged by Comerica Bank of Detroit ("Comerica Prime")
to its best commercial customers on the date when the
sum becomes due, but not in excess of the maximum
interest rate permitted by law. This obligation to pay
late charges and interest will exist in addition to
and not in lieu of the other default provisions in
this Lease.
(iii) Maximum Charge. Notwithstanding the foregoing
provisions of this Section, in no event shall the
amounts charged under this Section exceed the maximum
amount which may be lawfully charged by Landlord under
applicable law. In the event the amounts provided for
under this Section shall exceed such lawful charge,
then the amounts payable under this Section shall be
reduced to the maximum amount of such lawful charge.
SECTION 7:
7.01 [INTENTIONALLY OMITTED]
13
SECTION 8: BREACH; INSOLVENCY; REENTRY
8.01 If any rental payable by Tenant to Landlord remains unpaid for more
than ten (10) days after Tenant's receipt of written notice of
nonpayment or if Tenant violates or defaults in the performance of
any of its non-monetary obligations in this Lease (including the
Rules and Regulations) and the non-monetary violation or default
continues for a period of thirty (30) days after Tenant's receipt of
written notice, then Landlord may (but will not be required to)
declare this Lease forfeited and the Term ended, or reenter the
Premises, or may exercise all other remedies available under
Michigan law. If any non-monetary default is one that will
reasonably require more than thirty (30) days to correct, Tenant
shall not be deemed to be in default hereof if, after receiving
written notice of non-performance from Landlord, Tenant has promptly
commenced the curing of such default and is diligently pursuing the
same to completion. Except for the negligence or intentional act or
omission of Landlord, its agents, contractors or employees, Landlord
will not be liable for damages to person or property by reason of
any legitimate reentry or forfeiture. In the event of reentry by
Landlord without declaration of forfeiture, the liability of Tenant
for the rent provided herein will not be relinquished or
extinguished for the balance of the Term, and any rentals prepaid
may be retained by Landlord and applied against the costs of reentry
or as liquidated damages, or both. Tenant will pay, in addition to
the rental and other sums agreed to be paid hereunder, reasonable
attorneys' fees, costs and expenses in any suit or action instituted
by or involving Landlord to enforce the provisions of or the
collection of the rentals due Landlord under this Lease, including,
subject to applicable law, any proceeding under the Federal
Bankruptcy Code.
8.02 Subject to the provisions set forth in this Section 8.02, if Tenant
is adjudged bankrupt or insolvent, files or consents to the filing
of a petition in bankruptcy under Federal or State law, applies for
or consents to the appointment of a receiver for all or
substantially all of its assets, makes a general assignment for the
benefit of its creditors, fails generally to pay its debts as they
become due, or does anything which under the applicable provisions
of the Federal Bankruptcy Code would permit a petition to be filed
by or against Tenant, then Tenant shall be in default under this
Lease and, to the extent from time to time permitted by applicable
law, including but not limited to the Federal Bankruptcy Code,
Landlord shall be entitled to exercise all remedies set forth in the
preceding paragraph in this Section 8. If terminated under
applicable non-bankruptcy law prior to the order for relief, this
Lease may not be assumed or assigned by the debtor or trustee. In a
case under any chapter of the Federal Bankruptcy Code, the debtor or
trustee must assume this Lease or assign it within sixty (60) days
from the filing of the proceeding or he shall be deemed to have
rejected and terminated this Lease. Tenant acknowledges that its
selection to be a tenant of the Building was premised in material
part on Landlord's determination of Tenant's creditworthiness and
ability to perform the economic terms of this Lease and Landlord's
further determination that Tenant and the character of its occupancy
and use of the Premises would be compatible with the nature of the
Building and the other tenants thereof. Therefore, if Tenant as
debtor or its trustee elects to assume or assign this Lease, in
addition to complying with all other requirements for assumption or
assignment under the Federal Bankruptcy Code, then Tenant as debtor,
or its trustee or assignee, as the case may be, must also provide
adequate assurance of future performance, including but not limited
to a deposit, the amount of which shall be reasonably determined
based on the duration of time remaining in the Term, the physical
14
condition of the Premises at the time the proceeding was filed and
such damages as may be reasonably anticipated after reinstatement of
the Lease, taking into account rental market conditions at the time
of the reinstatement. In the event of an assignment, Landlord must
be assured that the financial condition of the assignee is sound and
that its use of the Premises will be compatible with the Building
and its other tenants. The provisions of this Section 8.02 shall be
enforced to the full extent permitted under the applicable
provisions of the Federal Bankruptcy Code.
8.03 In the event of declaration of forfeiture at or after the time of
reentry, Landlord may re-lease the Premises or any portion(s) of the
Premises for a term or terms and at a rent which may be less than or
exceed the balance of the Term and the rent reserved under this
Lease. In such event Tenant will pay to Landlord, as liquidated
damages for Tenant's default, any deficiency between the total rent
reserved and the net amount, if any, of the rents collected on
account of the lease or leases of the Premises which otherwise would
have constituted the balance of the Term of this Lease. In computing
such liquidated damages, there will be added to the deficiency any
reasonable expenses which Landlord may incur in connection with
re-leasing, such as legal expenses, attorneys' fees, brokerage fees
and expenses, advertising and for keeping the Premises in good order
or for preparing the Premises for re-leasing. Any such liquidated
damages will be paid in monthly installments by Tenant on the Rent
Day and any suit brought to collect the deficiency for any month
will not prejudice Landlord's right to collect the deficiency for
any subsequent month by a similar proceeding.
8.04 Notwithstanding anything to the contrary contained in this Lease,
Landlord and Tenant shall each have the duty and obligation to
mitigate, in every reasonable manner, any and all damages that may
or shall be caused or suffered by virtue of defaults under, or
violations of any of the terms and provisions of, this Lease
committed by the other party.
SECTION 9: FACILITIES; UTILITIES; SERVICES
9.01 The following specifically described utilities and services shall be
furnished by Landlord and shall be directly paid for by Tenant if
separately metered or billed, or otherwise as a part of the
Operating Expenses:
(i) Electrical current at all times for lighting and other uses
consistent with the use described in Paragraph G of the
Summary.
(ii) Heat and air conditioning seven (7) days a week without any
increase in cost for after hours or weekend use.
(iii) Hot and cold water at all times in reasonable quantities for
normal drinking, lavatory and restroom purposes.
(iv) Tenant shall not, without the prior written consent of
Landlord, use any apparatus or device in the Premises which
will in any way increase the amount of any utility service
used over the amount usually furnished, consumed or supplied
for uses consistent with the Permitted Use. If Tenant shall
require any excess utility service in excess of normal
office use, Tenant shall first obtain the written consent of
15
Landlord to the use and make separate arrangements for
payment of the additional services.
(v) To the extent that any utility services are separately
metered for the Premises, Tenant shall arrange for separate
billing of such services, Tenant shall directly pay the
provider therefor and the cost of such services shall not be
included in the Operating Expenses. Landlord represents and
warrants that all utility services serving the Premises are
separately metered. Landlord further represents and warrants
that the Premises are serviced by its own HVAC system and
that such system will be in good operating condition and
repair on the date that Landlord delivers possession of the
Premises to Tenant.
(vi) Janitorial services within the Premises as described in
attached Exhibit "D".
SECTION 10: INJURIES TO PERSONS AND PROPERTY
10.01 Except for the negligence or intentional acts or omissions of
Landlord, its agents, contractors or employees, Landlord will not be
liable for injury to person or property arising out of the acts,
omissions or neglect of any tenant, its servants, agents, employees,
invitees, visitors or licensees, or other occupants of or visitors
to the Building or the Premises, or of any person in or about the
Building or the Premises, or of owners or occupants of or persons on
or about surrounding properties; nor for injury to persons or
property arising out of patent or latent defects (other than any
such defects relating to the Tenant Improvements performed by
Landlord), structural or otherwise, in the Building or any
appurtenance thereof, or arising out of the condition or the
Building, or by or from the bursting, stoppage or leaking of or from
any pipes or drains, or from the malfunctioning of any utility,
facility or installation.
10.02 Except for the negligence or intentional acts or omissions of
Landlord, its agents, contractors or employees, Tenant, at its
expense, will defend, indemnify and save Landlord, its licensees,
servants, agents, employees and contractors harmless from any loss,
damage, claim of damage, liability or expense to or for any person
or property at law or in equity, whether based on contract, tort,
negligence or otherwise, arising directly or indirectly out of or in
connection with the condition of the Premises, the use or misuse
thereof by Tenant or any other person, the acts or omissions of
Tenant, its licensees, servants, agents, employees or contractors,
the failure of Tenant to comply with the Rules and Regulations or
with any other provision of this Lease on the part of Tenant to be
performed, or any event on the Premises whatever the cause.
10.03 Except for the negligence or intentional acts or omissions of
Landlord, its agents, contractors or employees, all property kept,
stored or maintained by Tenant in and about the Premises will be
kept, stored or maintained at the sole risk of Tenant and Landlord
will not be responsible for any property entrusted to employees of
Landlord. All individuals performing janitorial services within the
Building or the Premises shall be bonded.
10.04 Except for the negligence or intentional acts or omissions of
Tenant, its agents, contractors, guests, invitees or employees,
Landlord, at its expense, will defend, indemnify and save Tenant,
its licensees, servants, agents, employees, directors, officers and
contractors harmless
16
from any loss, damage, claim of damage, liability or expense to or
for any person or property, at law or in equity, and whether based
on contract, tort, negligence of otherwise (collectively, "Claims"),
arising out of or in connection with the (i) condition of the
Building or the Real Estate, (ii) the Tenant Improvements performed
by Landlord pursuant to the terms hereof, (iii) any repairs made by
Landlord or on behalf of Landlord in the Premises or the Building or
on the Real Estate, or (iv) Landlord's operation of the Building or
the Real Estate (provided, however, in each case that the Claims are
attributable to Landlord's negligent or intentional acts or
omissions) or arising out of any default by Landlord hereunder.
SECTION 11: INSURANCE
11.01 Tenant will not do anything which in any way will tend to increase
the insurance rates of the Building. Tenant agrees to pay, as
additional rent, any increase in premiums for insurance that may be
charged during the Term on the amount of insurance carried by
Landlord on the Building resulting from the use and occupancy of the
Premises by Tenant, whether or not Landlord has consented to such
use and occupancy, provided Tenant's use of the Premises for general
office purposes shall not be deemed a cause for the increase in
premiums under any of Landlord's insurance coverages.
11.02 Tenant, during the entire Term, will keep in full force and effect
comprehensive general liability insurance with respect to the
Premises, with contractual liability endorsement, in which the
limits of liability are not less than the amounts set forth in
Paragraph F of the Summary, and with a company or companies having
not less than an "A" rating by A.M. Best Company. Landlord will be
named as an additional insured under all such insurance policies
(which shall contain cross-liability endorsements) and a current
certificate evidencing such coverage and any renewals thereof will
be furnished to Landlord once a year. If Tenant fails to keep such
insurance in force, Landlord, at Tenant's reasonable expense, may
secure such insurance and the premium will be paid as additional
rent by Tenant within ten (10) days after receipt of an invoice
therefor.
11.03 Landlord shall provide and keep in force throughout the Term
commercial general liability insurance with respect to Landlord's
operation of the Building and the Real Estate, for bodily injury or
death and for damage to property of others, with policy limits of
not less than those required to be maintained by Tenant hereunder.
Landlord shall also during the Term provide and keep in force so
called "all risk" fire insurance (including the standard extended
coverage endorsement for perils and leakage from fire protective
devices) in respect of the Building and to the extent of its full
replacement value, as reasonably estimated by Landlord or required
by its mortgagee from time to time. Landlord may procure such other
insurance as it shall deem desirable or its mortgagee shall require.
Insurance effected by Landlord shall be subject to such deductibles
and exclusions as Landlord or its mortgagee shall determine to be
reasonable, but not to exceed Ten Thousand Dollars ($10,000.00).
Such insurance shall not cover Tenant's personal property nor
alteration to the Premises other than the Tenant Improvements.
Landlord shall maintain the foregoing insurance coverages with a
company or companies having not less than a "A" rating by A.M. Best
Company. Tenant shall be named as an additional insured on all of
Landlord's commercial general liability policies (which shall
contain cross-liability endorsements) and a current certificate
evidencing such
17
coverage and any renewals thereof shall be furnished to Tenant at
least once a year. Landlord's commercial liability insurance shall
contain a contractual liability endorsement.
SECTION 12: DAMAGE
12.01 If any part of the Premises or the Building is damaged by fire or
other casualty, Landlord, at its sole cost and expense, unless it
elects to terminate this Lease pursuant to this Section 12, will
proceed with reasonable speed to repair the Premises or the
Building, as the case may be (i) to a condition substantially equal
to the condition of the Premises or the Building existing
immediately prior to such damage or destruction, (ii) pursuant to
all applicable requirements of law and duly constituted governmental
authority, and (iii) in the case of the Premises, in accordance with
specifications, working plans and drawings prepared by Landlord, at
its sole cost and expense, and approved in advance by Tenant, which
appeal shall not be unreasonably withheld or delayed. If such damage
makes the Premises untenantable and was not caused by any act,
neglect or default of Tenant, its servants, agents, employees,
visitors or licensees, there will be an equitable abatement of rent
for the period during which and to the extent that the Premises are
untenantable and until Landlord fully repairs and restores the
Premises and the Building to a condition substantially equal to the
condition thereof which existed immediately prior to that fire or
other casualty (or to the condition otherwise approved by Tenant).
In the event the Building is damaged or destroyed to the extent of
more than fifty percent (50%) of the replacement value thereof,
Landlord will have the right to elect to demolish, rebuild or
reconstruct the Building if it is damaged by fire or other casualty
and, if Landlord so elects, whether or not the Premises have been
damaged, this Lease may be terminated by Landlord upon written
notice to Tenant and the rent will be adjusted to the date of the
fire or other casualty. If repair of the Premises is delayed by
Tenant's failure to adjust its own insurance claim, there will be no
abatement of rent for the period of such delay. Notwithstanding
anything to the contrary contained herein, in the event Landlord has
not completed the repairs and restoration of the Premises and/or the
Building within eight (8) months after the date of such damage or
destruction, then Tenant, at its option, may cancel and terminate
this Lease upon ten (10) days written notice to Landlord. Further,
if the Building shall be damaged or destroyed to the extent of more
than thirty-five percent (35%) of the replacement cost thereof
within twenty-four (24) months of the expiration of the Term of this
Lease, as the same may have been extended, either Landlord or Tenant
shall have the right to terminate this Lease as of the date of such
damage or destruction by giving written notice to the other party
within thirty (30) days following such damage or destruction, unless
Tenant, within thirty (30) days following the receipt of such notice
from Landlord shall exercise an option to extend the Term of this
Lease pursuant to Section 2 hereof. If this Lease is terminated
pursuant to this Section 12, Landlord and Tenant shall each be
released from its respective liability and obligations hereunder
accruing from and after the date of such damage or destruction.
18
SECTION 13: ALTERATIONS
13.01 Tenant will not alter, add to or improve the Premises without first
obtaining the written consent of Landlord, which consent shall not
be unreasonably withheld or delayed so long as the proposed
alteration, addition or improvement does not involve modifications
of any structural elements of the Premises. All alterations,
additions, improvements and related work performed by Tenant (or
pursuant to its authority) shall be performed in accordance with all
applicable laws, rules, regulations and ordinances and between such
hours and by such contractors and mechanics as may be approved by
Landlord. All alterations, additions, improvements and replacements
made or provided by either party on the Premises, except movable
furniture, trade fixtures and other personal property provided at
Tenant's expense, will be the property of Landlord and will remain
on and be surrendered with the Premises upon termination, without
damage. Tenant will keep the Premises free of liens of any sort in
connection with work done on the Premises by Tenant (or pursuant to
its authority). Notwithstanding anything to the contrary contained
in this Section 13, Tenant shall be permitted to make interior,
non-structural alterations, additions or improvements to the
Premises, other than those pertaining to the HVAC or plumbing
systems, without obtaining Landlord's consent therefor, provided the
cost of any such alterations, additions or improvements shall not
exceed Ten Thousand Dollars ($10,000.00) during any lease year
during the Term hereof.
SECTION 14: CARE OF PREMISES
14.01 Except as otherwise provided in this Lease, Landlord, during the
Term of this Lease, including any extension thereof, shall properly
maintain and make all necessary repairs and replacements to (i) the
entire Building and Premises, including the windows, doors, roof,
outer walls and structural portions thereof, (ii) the electrical,
plumbing, heating, ventilating and cooling and other mechanical
systems whether located inside or outside the Building, and whether
serving the Premises or the common areas of the Building and (iii)
the common areas on or about the Real Estate and/or Building,
including all of the parking areas on or about the Real Estate.
Landlord shall be responsible for all repairs and maintenance to the
Real Estate and Building whether as a result of ordinary wear and
tear or resulting from fire, casualty or acts of God. It is
understood and agreed that Tenant shall have no responsibility for
the repair of any of the electrical, plumbing, heating, ventilating
and cooling or other utility systems serving the Premises, the
obligations for such repairs being the sole responsibility of
Landlord. In addition to the foregoing, Landlord hereby warrants any
Tenant Improvements constructed by Landlord to be free from defects
in workmanship and materials for a period of twelve (12) months
after the Commencement Date. If any repairs to, or replacement of
any Tenant Improvements constructed by Landlord are needed within
twelve (12) months after the Commencement Date, all such repairs
shall be performed by Landlord and/or its contractors, at Landlord's
sole cost and expense without reimbursement from Tenant so long as
said repairs are not necessitated by Tenant's negligent acts or
omissions.
Landlord agrees, during the Term hereof, to operate, manage and
maintain in good operating condition and repair, clean and free from
rubbish, debris, dirt, snow and ice, adequately
19
drained in a safe sanitary condition, all of the common area
lighting facilities, landscaping, parking and other common areas on
or about the Real Estate. Landlord agrees to keep all of the parking
area lights on each night from dusk until at least 11:00 p.m to the
extent permitted by applicable law. In addition, such parking lights
shall be on from 6:00 a.m. until daylight.
14.02 Except as otherwise provided in this Lease, Tenant, at its sole
expense, will keep the Premises, including, without limitation, all
Tenant's personal property, fixtures and equipment, at all times in
good, sanitary and safe condition and repair in accordance with the
laws of the State of Michigan and in accordance with all directions,
rules and regulations of the health officer, fire marshal, building
inspector or other proper officers of the governmental agencies
having jurisdiction, and Tenant will comply with all requirements of
law, ordinance or otherwise affecting the Premises. Tenant, at its
expense, will repair (or replace as needed) all damage to the
Premises, the Building, the common areas of the Building or its
fixtures and equipment, caused by the act, neglect or default of
Tenant, its servants, agents, employees, visitors or licensees,
except to the extent such repairs would be covered by the insurance
Landlord is required to carry pursuant to the terms of this Lease.
If Tenant fails to make such repairs and/or replacements, if any,
and provided Landlord gives Tenant ten (10) days prior written
notice of any such repairs and provided further that Landlord in the
performance of any such repairs does not unreasonably interfere with
the conduct of Tenant's business, Landlord may do so at Tenant's
reasonable expense by such contractors and mechanics as may be
employed by Landlord and the sole cost will be paid by Tenant, as
additional rent, to Landlord within thirty (30) days after receipt
of Landlord's detailed invoice. Tenant will permit no waste or
nuisance upon or damage or injury to the Premises or utilities
supplied thereto.
SECTION 15: USE OF PREMISES; RULES AND REGULATIONS
15.01 The Premises will be used for the purpose described in Paragraph G
of the Summary and for no other or added purposes without the prior
written approval of Landlord. In no event may Tenant use or permit
the use of any part of the Premises or the common areas in violation
of the Rules and Regulations, described in paragraph 15.02, or any
laws, ordinances, rules or regulations of any municipal, county,
state or federal body, including, without limitation the Americans
with Disabilities Act.. Tenant will not conduct its business in any
manner prohibited by any code or principles of that business and in
no event in any manner prohibited by law. Tenant shall not place a
load upon any floor of the Premises exceeding the floor load per
square foot which such floor was designed to carry and which is
allowed by law. Landlord reserves the right to reasonably prescribe
the weight and position of all equipment, furniture, file cabinets
and other heavy objects, which must be placed and maintained by
Tenant at Tenant's expense, in settings sufficient in Landlord's
reasonable judgment to absorb and prevent vibration, noise and
annoyance. Notwithstanding anything contained in this Lease to the
contrary, Tenant may not use the Premises nor permit any other
person or entity to use the Premises for purposes of engaging in any
of the following activities: abortion, abortion rights advocacy, the
sale of sexually explicit materials, sterilization, euthanasia or
assisted suicide.
20
15.02 The Rules and Regulations applicable to the Building are contained
in Exhibit "C" which is an integral part of this Lease, provided
such Rules and Regulations shall apply uniformly to all tenants of
the Building. Landlord may change the Rules and Regulations if it
reasonably feels the changes are appropriate, and Tenant agrees to
comply with and abide by the Rules and Regulations as so amended,
provided such Rules and Regulations, as amended, shall apply
uniformly to all of the tenants in the Building.
SECTION 16: ACCESS TO PREMISES
16.01 Upon reasonable prior written notice to Tenant (except in the event
of an emergency, and then at any time), Tenant will permit Landlord
and its agents access to the Premises during all normal business
hours for the purpose of examining the Premises, maintaining
existing pipes and conduits in and through the Premises and making
any repairs, alterations or additions which Landlord may deem
necessary for the safety, preservation or improvement of the
Premises or the Building. Landlord will be allowed to take all
material into the Premises that may be reasonably required for such
work and to perform such acts without the same constituting an
eviction of Tenant in whole or in part, provided Landlord shall not
unreasonably interfere with the conduct of Tenant's business. The
rent will not abate while the repairs, alterations, improvements or
additions are being made unless any such repairs (i) extend over a
period of more than three (3) consecutive business days; and (ii)
preclude Tenant from conducting its business in a commercially
reasonable manner within the Premises for a period of more than
three (3) consecutive business days, in which case fifty percent
(50%) of the Base Rent shall be abated in proportion to the
percentage of the Premises that cannot be used for Tenant's business
in a comercially reasonable manner. Said rent abatement shall be for
that period beyond three (3) consecutive business days during which
Tenant is precluded from using the applicable portion of the
Premises for Tenant's business in a commercially reasonable manner
as a result of any repairs, alterations, improvements or additions
being made by Landlord. Notwithstanding anything contained herein to
the contrary, in no event shall rent abate if repairs or
replacements to the Premises or any other portion of the Building
are necessitated by Tenant's negligence or breach of this Lease.
SECTION 17: EMINENT DOMAIN
17.01 If any part of the Premises or more than fifteen percent (15%) of
the parking areas are taken by any public authority under power of
eminent domain or by private sale or conveyance in lieu of eminent
domain, this Lease will terminate as of the date of such taking or
sale and Tenant may receive a pro rata refund of any rent paid in
advance. Landlord reserves the right, however, to elect to demolish,
rebuild or reconstruct the Building if any portion of the Building
is so taken, or to cease operation of the Building if such material
part of the parking for the Building is taken that Landlord
determines, in its discretion, that it would be uneconomic to
continue operation of the Building; and, if Landlord so elects,
whether or not the Premises are involved in the taking, this Lease
may be terminated by Landlord on written notice to Tenant and the
rent will be adjusted to the date Tenant's possession of the
Premises is terminated. All damages awarded for the taking will
belong to and be the property of Landlord regardless of the basis on
which they are awarded, but Landlord will not be entitled
21
to any portion of the award made to Tenant for removal and
installation of fixtures or moving expenses and loss of business.
SECTION 18: ASSIGNMENT OR SUBLETTING
18.01 Tenant agrees not to assign or in any manner transfer this Lease or
any interest in this Lease without the previous written consent of
Landlord, and not to sublet the Premises or any part of the Premises
or allow anyone to use or to come in with, through or under it
without like consent. In no event may Tenant assign or otherwise
transfer this Lease or any interest in this Lease at any time while
in default thereunder. One such consent will not be deemed to be a
consent to any subsequent assignment, subletting, occupation or use
by any other person. Tenant may, however, assign this Lease to a
corporation with which it may merge or consolidate, to any parent or
subsidiary of Tenant or subsidiary of Tenant's parent, or to a
purchaser of substantially all of Tenant's assets if the assignee
executes an agreement required by Landlord assuming Tenant's
obligations. The acceptance of rent from an assignee, subtenant or
occupant will not constitute a release of Tenant from the further
performance of the obligations of Tenant contained in this Lease.
Tenant acknowledges that Landlord selected Tenant and other
occupants of the Building in part on the basis of compatibility of
use and occupation of the Building and agrees that Landlord may
withhold consent, if required, to any proposed sublease or
assignment if the subtenant's or assignee's business or proposed use
of the Premises would be inconsistent with the character of the
Building and its other tenants, including, without limitation, if
such business or use would involve excessive parking demands and/or
usage.
SECTION 19: SURRENDER
19.01 At the expiration (or earlier termination) of the Term, Tenant shall
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 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 payment of rent. Any
reasonable costs and expenses incurred by Landlord in connection
with repairing any damage to the Premises occasioned by the removal
of Tenant's personal property therefrom, together with the
reasonable costs, if any, of removing from the Premises any personal
property of Tenant left therein, shall be invoiced to Tenant and
shall be payable as additional rent within thirty (30) days after
receipt of Landlord's detailed invoice.
SECTION 20:
REMOVAL OF TENANT'S PROPERTY UPON EXPIRATION OR TERMINATION
20.01 If Tenant fails to remove all its personal property (or property of
others in its possession) from the Premises within three (3) days
following the expiration or termination of this Lease (for any
cause), Landlord, at its option, may remove the property in any
reasonable manner that it chooses and may store the property without
liability to Tenant. Tenant agrees to pay Landlord, in accordance
with Section 19 hereof, any and all reasonable expenses incurred in
such removal, including court costs, attorneys' fees and storage
charges on the property for
22
any length of time it is in Landlord's possession. Under no
circumstances will Landlord be obligated to retain any property left
on the Premises or in Landlord's possession for more than three (3)
days following the expiration or earlier termination of this Lease
and Landlord may dispose of the property in any manner it deems
necessary, including public or private sale or by destruction,
discard or abandonment, and the proceeds of any such sale will be
applied against any sums due Landlord under this Lease.
SECTION 21
21.01 [INTENTIONALLY OMITTED]
SECTION 22: HOLDING OVER
22.01 If Tenant remains in possession of the Premises after the expiration
of this Lease without executing a new lease, it will be deemed to be
occupying the Premises as a tenant from month to month, subject to
all the provisions of this Lease to the extent that they can be
applicable to a month-to-month tenancy, except that the Base Rent
for each month will be one hundred fifty percent (150%) of the
regular monthly installments of Base Rent last in effect as shown in
Paragraph C of the Summary. Nothing herein shall be construed or
deemed to constitute a consent by Landlord to Tenant holding over,
nor a waiver by Landlord of its rights to remove or evict Tenant by
reason of the expiration of the Term.
SECTION 23: SUBORDINATION; ESTOPPEL CERTIFICATES
23.01 Tenant agrees that Landlord may choose to make this Lease
subordinate or paramount to any construction loans, mortgages, trust
deeds and ground or underlying leases now or hereafter affecting the
Premises and to any and all advances to be made thereunder, and to
the interest and charges thereon, and all renewals, replacements and
extensions thereon, provided the mortgagee, lessor or trustee named
in any such mortgages, trust deeds or leases agrees to recognize
this Lease and Tenant's rights hereunder in the event of foreclosure
if Tenant is not in default. Tenant will execute promptly any
instrument or certificate that Landlord may request to confirm such
subordination, provided any such instrument or certificate is in a
form and substance reasonably acceptable to Tenant. Within thirty
(30) days following the date hereof, Landlord shall furnish Tenant
with a subordination and non-disturbance agreement, executed by the
mortgagee under any mortgage covering the Building and Real Estate,
which shall be in a form and substance reasonably acceptable to
Tenant.
23.02 Tenant, within fifteen (15) days after reasonable request by
Landlord, will execute and deliver to Landlord an estoppel
certificate identifying the Commencement Date and expiration date of
the Term and stating that this Lease is unmodified and in full force
and effect or is in full force and effect as modified, stating the
modifications and stating that Tenant does not claim that Landlord
is in default in any way or listing any such claimed defaults. The
certificate also will confirm the amount of monthly Base Rent and
additional rent 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.
23
SECTION 24: QUIET ENJOYMENT
24.01 Landlord agrees that Tenant may peaceably and quietly enjoy the
Premises, subject to the terms, provisions, covenants, agreements,
stipulations, rules and conditions of this Lease, without
disturbance or hindrance by any person holding under or through
Landlord, if Tenant pays the Base Rent and additional rent and
observes and performs all the provisions of this Lease and the Rules
and Regulations.
SECTION 25: NO REPRESENTATIONS BY LANDLORD
25.01 Except as expressly stated in this Lease, Landlord makes no
representations with respect to the Premises or the Building and, by
taking possession of the Premises, Tenant will be deemed to have
accepted the Premises and the Building in the condition then
existing.
25.02 Landlord represents and warrants, to the best of its current actual
knowledge, based on and except as set forth in the Phase I
Environmental Site Assessment, dated March 30, 1998, and prepared by
Atwell-Hicks, Inc., a copy of which has been delivered to Tenant, no
leak, spill, release, discharge, emission or disposal of hazardous
or toxic substances has occurred on the Real Estate or in the
Building prior to the date hereof and that the soil, ground water
and soil vapor on or under the Building and the Real Estate are free
of toxic or hazardous substances and further Landlord represents and
warrants that there are no asbestos containing materials located
within the Building. Landlord agrees to indemnify, defend and hold
Tenant and its directors, officers, employees and agents harmless
from any claims, judgments, damages, penalties, fines, liabilities
(including sums paid in settlement of claims) or reasonable costs,
including attorneys fees, which arise prior, during or after the
Term of this Lease from or in connection with the presence or
suspected presence of toxic or hazardous substances in the soil,
ground water or soil vapor on or under the Real Estate or within the
Building, unless such toxic or hazardous substances are present as a
result of the negligence or willful act or omission of Tenant, its
agents, contractors, guests, invitees or employees. Landlord agrees
that Tenant shall have absolutely no obligation to remediate or
otherwise clean up or remove any toxic or hazardous substances from
any portion of the Building or the Real Estate (unless the same is
present on or about the Building or the Real Estate as a result of
the negligence or intentional acts or omissions of Tenant, its
agents, contractors, guests, invitees or employees), or incur any
costs in connection therewith, it being understood and agreed that
such obligation is the sole responsibility of Landlord. Landlord's
obligation to indemnify Tenant under this Section 25 shall survive
the expiration or earlier termination of this Lease.
25.03 Tenant shall not keep any toxic or hazardous substances (as such
terms are defined under applicable law) in the Premises, provided
the terms "toxic" and "hazardous substances" shall not be deemed to
include items customarily kept in offices of the type and kind in
which Tenant operates, unless the maintenance of such items in the
Premises would be prohibited by applicable law. If, however, any
such items kept in the Premises result in the contamination thereof,
Tenant shall take all reasonable actions, at its sole cost and
expense, to return the Premises and the Building to the condition
existing prior to the introduction of those items therein. Tenant
agrees to indemnify, defend and hold Landlord and its agents and
employees harmless from any claims, judgments, damages, penalties,
fines, liabilities
24
(including sums paid in settlement of claims) or reasonable costs,
including attorneys fees, which arise prior to, during or after the
Term of this Lease, from or in connection with the presence or
suspected presence of toxic or hazardous substances in the soil,
ground water or soil vapor on or under the Real Estate or the
Building as a result of the acts of Tenant, its agents, contractors
or employees, unless such toxic or hazardous substances are present
as a result of the negligence, or willful act or omission of
Landlord, its agents, contractors, guests, invitees or employees.
Tenant's obligation to indemnify Landlord under this Section 25.03
shall survive the expiration or earlier termination of this Lease.
SECTION 26: LANDLORD'S RIGHT TO CURE DEFAULTS
26.01 Subject to, and except as otherwise provided under the other terms
and conditions of this Lease, if Tenant defaults in the performance
of any provision of this Lease or the Rules and Regulations,
Landlord will have the right to cure such default for the account of
Tenant upon ten (10) days prior written notice to Tenant, and
Tenant, within thirty (30) days after being billed, will reimburse
Landlord, as additional rent, for any reasonable expenditure made by
Landlord in order to cure such default, together with interest as
provided in Section 6 if the reimbursement is not made when due.
SECTION 27: WAIVER OF SUBROGATION
27.01 Landlord and Tenant hereby waive any and all right of recovery
against each other for any loss or damage caused by fire or any
other casualty covered by the fire and extended property insurance
coverage, vandalism and malicious mischief insurance policies
carried (pursuant to the terms hereof) by Landlord with respect to
the Building and carried by Tenant with respect to Tenant's fixtures
and the contents of the Premises.
SECTION 28: BILLS AND NOTICES
28.01 Bills, statements, notices or communications which Landlord may
desire or be required to give to Tenant will be deemed sufficiently
given or rendered only if in writing, sent by registered, certified
or first class mail (with respect to bills only), postage prepaid,
addressed to Tenant at the address set forth on the cover page of
this Lease or at such other address as Tenant designates by written
notice, and the time of the rendition of a bill or statement and of
the giving of a notice or communication will be deemed to be the
time when received by Tenant. Any notice by Tenant to Landlord must
be served by registered or certified, postage prepaid, addressed to
Landlord at the address set forth on the cover page of this Lease or
at such other address as Landlord designates by written notice.
Rejection or refusal to accept or the inability to deliver because
of a changed address of which no notice was given shall be deemed to
be receipt of the notice, demand, request or other instrument.
SECTION 29: MOVEMENT OF TENANT'S PROPERTY
29.01 All activities of Tenant in connection with (a) Tenant's move into
the Premises at the commencement of this Lease, (b) the movement of
equipment, furniture or other bulky items into, out of or within the
Premises during the Term, or (c) Tenant's move out of the Premises
at any time (whether or not on the expiration of this Lease) will be
subject to the following:
25
(i) all furniture, equipment and all other items of
personal property being moved or transferred will
enter and leave the Building solely through and by way
of such area or entrances as may be reasonably
designated from time to time by Landlord for such
purposes;
(ii) Tenant will be responsible for the active supervision
(on-site) of all workmen and others performing the
move, and will indemnify and hold harmless Landlord
against and from all liability for damage to property
(whether belonging to Landlord, other tenants or any
other person) and injuries to persons in connection
with the move and the actions or failure to act of or
by those performing the move;
(iii) Tenant will be responsible for any damage to the
Building, the common areas thereof, the Premises or
the premises and property of other tenants, caused by
or incurred in connection with the move or the
activities connected therewith. Landlord will perform
such inspection(s) as Landlord in its sole discretion
determines to be appropriate, and will invoice Tenant
for the repair of all such damage or the replacement,
if necessary, of damaged items. Any determinations of
the extent of damage and the costs of repair or
replacement will be made by Landlord in its sole
reasonable discretion. The invoiced sums, if any, will
constitute amounts included within and payable under
paragraph 4.05 of this Lease.
SECTION 30: NAME OF BUILDING
30.01 Upon sixty (60) days prior written notice to Tenant, Landlord may
name the Building and change the name of the Building and will not
be responsible for costs or damages, if any, claimed by Tenant as a
consequence thereof.
SECTION 31: PREVENTING REMOTE VESTING
31.01 Notwithstanding any other provisions of this Lease, if the Term of
this Lease does not commence within six (6) months from the date
hereof, this Lease will be deemed terminated six (6) months from the
date hereof without necessity of any notice or act by Landlord or
Tenant. It is the intention of this Section to prevent this Lease
from becoming unenforceable by reason of any claim that it might
violate the rule against perpetuities.
SECTION 32: DEFINITION OF LANDLORD; LANDLORD'S LIABILITY
32.01 The term "Landlord" as used in this Lease, so far as covenants,
agreements, stipulations or obligations on the part of the Landlord
are concerned, is limited to mean and include only the owner or
owners of fee title (or of a ground leasehold interest) to 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
26
all personal liability for the performance of any covenants or
obligations on the part of Landlord contained in this Lease
thereafter to be performed.
32.02 If Landlord fails to perform any provision of this Lease upon
Landlord's part to be performed and if as a consequence of such
default Tenant recovers a money judgment against Landlord, such
judgment may be satisfied only out of the proceeds of sale received
upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in the Premises and out of
rents or other income from such property receivable by Landlord and
Landlord shall not be personally liable for any deficiency.
SECTION 33
33.01 [INTENTIONALLY OMITTED]
SECTION 34
34.01 [INTENTIONALLY OMITTED]
SECTION 35: GENERAL
35.01 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.
35.02 All agreements and obligations of Tenant under this Lease are joint
and several in nature. Any waiver or waivers by either party of any
of the provisions of this Lease will not constitute a waiver of any
later breach of that provision, and any consent or approval given by
either party with respect to any act, neglect or default by the other
party will not waive or make unnecessary waiving party's consent or
approval with respect to any later similar act, neglect or default by
the other party.
35.03 Topical headings appearing in this Lease are for convenience only.
They do not define, limit or construe the contents of any paragraphs
or clauses.
35.04 This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant.
35.05 All provisions of this Lease are and will be binding on the heirs,
executors, administrators, personal representatives, successors and
assigns of Landlord and Tenant.
35.06 The laws of the State of Michigan will control in the construction
and enforcement of this Lease.
35.07 Whenever the approval or consent of either party is required
hereunder, such approval or consent shall not be unreasonably
delayed, withheld or conditioned.
27
35.08 In the event that either party shall be delayed or hindered in or
prevented from the performance of any act (other than the payment of
Base Rent or additional rent under the terms of this Lease) by reason
of riots, strikes, labor troubles, inability to produce materials or
other reason not the fault of the party delayed in performing the
work or performing the acts required under the terms of this Lease,
including delays caused by the acts of the other party, performance
of such acts shall be excused for the period of delay and the period
for the performance of any such acts shall be extended for a period
equivalent to the period of such delay, provided the foregoing shall
not be deemed to excuse the Landlord from completing Tenant's
Improvements by the Possession Date.
35.09 Except for the commissions due and payable to Pankhurst Properties,
Inc., and J.E. DeWald & Associates, Landlord and Tenant each
represents and warrants that there are no claims for brokerage
commissions or finders' fees in connection with the execution of this
Lease, and each of the parties agrees to indemnify the other party
against and hold it harmless from liabilities and reasonable costs
arising from any such claim, including attorneys' fees. Landlord
agrees to pay the commissions due to J.E. DeWald & Associates in
connection with the execution of this Lease, with the understanding
that any commissions due and payable to Pankhurst Properties, Inc.
will be paid by J.E. DeWald & Associates on a cooperative basis.
35.10 Landlord agrees that if it fails to make any repairs or do any work
required of Landlord by the provisions of this Lease (including
maintaining the common areas of the Building or the Real Estate),
then, in any such event or events Tenant, after the continuance of
any such failure or default for a period of thirty (30) days after
written notice thereof is given by Tenant to Landlord, may, at its
option and on behalf of and at the reasonable expense of Landlord,
cure such defaults and perform, or cause to be performed, all such
work or repairs and make all necessary payments in connection
therewith, including but not limiting the same, to the payment of any
reasonable fees, costs and charges of or in connection with any legal
action which may have been brought. However, Landlord shall not be
deemed in default hereunder if the default is one that will
reasonably require more than thirty (30) days to correct, if after
receiving Tenant's written notice thereof, Landlord has promptly
commenced the curing of such default and is diligently pursuing the
same to completion. The foregoing notwithstanding, if there arises a
situation endangering life and/or property which, in Tenant's
reasonable judgment, constitutes an emergency requiring immediate
action, then Tenant, on behalf of and at the expense of Landlord,
shall be entitled to take whatever immediate steps are deemed by
Tenant to be necessary to abate the emergency without first providing
Landlord with written notice thereof.
Landlord agrees to pay to Tenant any reasonable amount incurred or
paid by Tenant pursuant to this Section 35.10 within thirty (30) days
after Landlord's receipt of a written demand therefor by Tenant. Any
amount payable by Landlord to Tenant pursuant to this Section, which
is not paid within thirty (30) days after Landlord's receipt of
Tenant's written demand stating that the same is due, shall bear
interest at a rate of interest equal to the interest rate set forth
in Section 6.01(ii) of this Lease. In the event Landlord fails to pay
Tenant any amount due Tenant within the aforesaid thirty (30) day
period, then Tenant may, at its option, withhold up to twenty-five
percent (25%) of any and all rental payments and other charges
thereafter becoming due to Landlord pursuant to the provisions of
this Lease and may apply the same to
28
the payment of such indebtedness of Landlord to Tenant until such
indebtedness is paid in full with interest thereon as herein
provided.
35.11 Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right to utilize up to one-half (1/2) of the
existing monument sign located in the Real Estate for the
installation, at Tenant's cost, of installation of Tenant's
identification sign.
SECTION 36: ENTIRE AGREEMENT
36.01 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 the Building and there are no covenants, agreements,
stipulations, promises, conditions or understandings, either oral or
written, between them other than herein set forth.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
WITNESSES: LANDLORD:
SAFRAN DEVELOPMENT, L.L.C.
By: /s/Anthony J. Ferlito
- ------------------------------ -------------------------------
Anthony J. Ferlito
/s/ Claudia J. DeWald Its: Manager
- ------------------------------
Claudia J. DeWald
TENANT:
FEDERAL SCREW WORKS
/s/ Wade C. Plaskey By: /s/ W.T. Zurschmiede
- ------------------------------ -------------------------------
Wade C. Plaskey Name: W. T. ZurSchmiede, Jr.
/s/ Marlene P. Selby Its: Chairman, CEO, CFO
- ------------------------------ -------------------------------
Marlene P. Selby
29
A-1
EXHIBIT "A-1"
FLOOR PLAN OF PREMISES
A-1
EXHIBIT "A-2"
DEPICTION OF RESERVED PARKING AREA
A-2
EXHIBIT "B"
DESCRIPTION OF TENANT IMPROVEMENTS
TO BE COMPLETED BY LANDLORD
1. Installation of appropriate "Reserved Parking" signage for Tenant's 25
reserved spaces.
2. Installation of one-inch horizontal mini-blinds or other comparable
window treatment for all exterior windows.
3. In addition to the foregoing, Landlord, at its sole cost and expense,
shall construct the Premises in accordance with the plans and
specifications prepared by Stucky Vitale Architects and which are
identified as Project No. 99.083 and dated October 27, 1999. Tenant has
dated and initialled each page of said plans and specifications to
indicate its approval thereof.
B-1
EXHIBIT "C"
RULES AND REGULATIONS
(Any reference to a tenant in these Rules and Regulations will also include
(unless the context makes such reference inappropriate) the tenant's agents,
servants and employees.
1. No sign, picture, lettering, notice or advertisement of any
kind shall be painted or displayed on or from the windows, doors, roof or
outside walls of the Building. In the event of the violation of the foregoing
by Tenant, Landlord may remove same without any liability and may charge the
expense incurred for said removal to Tenant.
2. Tenant shall not use the name of the Building for any
purpose than that of the business address of Tenant. Tenant agrees that
Landlord may assign a name to the Building and/or change the name of the
Building at Landlord's option.
3. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any tenant or used for any purpose other than ingress and
egress to and from the Premises or Building.
4. No curtains, blinds, shades, screens, awnings, or other
projections shall be attached to or hung in, or used in connection with, any
window or door of the Premises or outside wall of the Building without the
prior written consent of the Landlord, nor shall Tenant place objects against
glass partitions, doors or windows which would be unsightly from the
Building's corridors, or from the exterior of the Building.
5. Any carpeting cemented down within the Premises shall be
installed with a releasable adhesive.
6. No animals, pets (other than seeing-eye dogs), bicycles or
other vehicles (other than wheel chairs or other similar devices for the
physically challenged) shall be brought or permitted to be in the Building or
the Premises.
7. The water and wash closets and other plumbing fixtures shall
not be used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, rags, or other substances shall be thrown therein.
Any damage resulting from any misuse of the fixtures by Tenant shall be borne
by Tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same. Tenant shall not waste electricity, water or air
conditioning, and shall cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air conditioning. Tenant
shall not adjust any controls other than room thermostats installed for
Tenant's use. Tenant shall not tie, wedge or otherwise fasten open any water
faucet or outlet. Tenant shall keep all corridor doors closed except when in
actual use.
8. Tenant shall not cause or permit unusual or objectionable
odor to be produced upon or permeate from the Premises. Tenant shall not
allow any cooking on the Premises. Tenant shall not disturb any occupant of
the Building by the use of any musical instruments, radio, television,
loudspeakers, or by any disturbing noise. Notwithstanding anything to the
contrary contained herein or elsewhere in this Lease, Tenant shall have the
right to have a microwave oven, refrigerator and coffee machines on the
Premises.
9. No tenant shall throw anything out of the door, windows, or
down any passageways of elevator shafts.
10. Tenant may not utilize portable space heaters within any
portion of the Building.
11. Vending machines will not be permitted to be installed by
anyone but the Landlord, except in Tenant's Premises for the use of Tenant's
employees.
12. Canvassing, soliciting, and peddling in the Building is
prohibited and each tenant shall cooperate to prevent the same
13. No additional locks or bolts of any kind shall be placed
upon any of the doors and windows by any tenant, nor shall any change be made
in existing locks or the mechanism thereof without Landlord's consent. Each
tenant must, upon the termination of his tenancy, return to the Landlord all
keys of offices and toilet rooms, whether furnished to or otherwise procured
by a tenant and in the event of the loss of any keys, so furnished, such
tenant shall pay to the Landlord the reasonable cost or duplicate thereof.
14. Tenant assumes full responsibility for protecting the
Premises from theft, robbery and pilferage. Except during Tenant's normal
business hours, Tenant shall keep all doors to the Premises locked and other
means of entry of the Premises closed and secured.
15. Tenant is not permitted to use any part of the Building or
the common areas for any manufacturing, storage, or sale of merchandise, or
property of any kind (except to the extent that said activity is confined to
the Premises and otherwise complies with the provisions of this Lease); or
for lodging or sleeping, or for any immoral or illegal purpose. Tenant shall
not install or operate any machinery or mechanical devices of a nature not
directly related to Tenant's ordinary use of the Premises for general office
purposes.
16. All loading, unloading, receiving or delivery of goods,
supplies or disposal of garbage or refuse shall be made only through
entryways reasonably provided for such purposes by Landlord.
17. All safes, freight, furniture, or other bulky matter of any
description shall be carried in or out of the Premises only at such times and
in such manner as shall be reasonably prescribed in writing by Landlord, and
Landlord shall in all cases have the right to specify the proper position of
any such safe, furniture, or other bulky article, which shall only be used by
Tenant in a manner which will not unreasonably interfere with or cause damage
to the Premises or the Building in which they are located, or to the other
tenants or other occupants of the Building. Tenant shall be responsible for
any damage to the Building or the property of its tenants or others and
injuries sustained by any person whomsoever resulting from the use or moving
B-2
of such articles in or out of the Premises, and shall make any repairs and
improvements required by Landlord or governmental authorities in connection
with the use or moving of such articles.
18. No smoking shall be permitted in the Premises or in the
Building except for in areas designated by Landlord.
19. Tenant shall not employ any person to perform any cleaning,
repairing, janitorial, decorating, painting, or other services or work in or
about the Premises, except with the approval of Landlord.
20. Tenant shall not overload any floor and shall not install
any heavy objects, safes, business machines, files or other equipment without
having received Landlord's prior written consent as to size, maximum weight,
routing and location thereof. Safes, furniture, equipment, machines and other
large or bulky articles shall be brought through the Building and in and out
of the Premises at such times and in such manner as the Landlord shall
reasonably direct and at Tenant's sole risk and responsibility.
21. Landlord shall not be responsible for any lost or stolen
property, equipment, money or jewelry from the Premises or the public area of
the Building regardless of whether such loss occurs when the Premises are
locked or not.
23. Landlord shall have the right to prohibit any advertising
by any tenant which, in Landlord's reasonable opinion, tends to impair the
reputation of the Building or its desirability for offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
24. Tenants may park only in strict compliance with all signs
posted and regulations issued by Landlord, within spaces designated for
parking, and not in such a manner as to block other parking spaces, drives,
loading areas or fire lanes. Tenants understand that they are fully
responsible for assuring that their employees, agents, licensees and visitors
comply with these parking rules, will reimburse Landlord for all reasonable
costs and expenses incurred in enforcing the rules. To facilitate security
arrangements and parking controls, a list of the names of each tenant's
employees working in the Building and of their vehicle license numbers will
be furnished to Landlord upon request.
25. Whenever the word "Tenant" occurs, it is understood and
agreed that is shall mean Tenant's employees, agents and servants. Wherever
the work "Landlord" occurs, it is understood that it shall mean Landlord's
assigns, agents, clerks, servants and visitors.
26. Tenant shall not be permitted access to the roof of the
Building.
B-3
EXHIBIT "D"
JANITORIAL SERVICES
SERVICES TO BE PERFORMED BY LANDLORD ON NORMAL BUSINESS DAYS (MONDAY THROUGH
FRIDAY) AS REASONABLY DETERMINED BY LANDLORD, BUT NOT EXCEEDING FIVE TIMES
PER WEEK:
DAILY SERVICES:
1. Empty all waste baskets.
2. Empty and clean ash trays.
3. Dust desk tops that are clear of working paper.
4. Vacuum carpeted areas and dust mop resilient floors.
5. Restrooms:
(a) Empty all waste receptacles.
(b) Dust mop and wet mop floors
(c) Clean and disinfect all fixtures.
(d) Clean mirrors and shelves.
(e) Refill towel and soap dispensers.
6. Clean and disinfect drinking fountains and water coolers.
7. Clean lobby floor and all lobby door glass.
WEEKLY SERVICES:
1. Dust top of the file cabinets, ledges and baseboards.
2. Clean and disinfect all ceramic tile, partitioning and waste
receptacles in restrooms.
3. Remove smudges and scuff marks from walls.
4. Remove spots from partition glass.
5. Damp mop stairways as required.
MISCELLANEOUS SERVICES:
1. Wash exterior windows as needed, however the number of
washings will not be less than two times per year, weather permitting.
SEASONAL SERVICES:
1. Snow or ice removal from concrete walks as necessary.
Tenant understands that Landlord may substitute for any of the methods or
devices set forth in this Exhibit "D", other methods or devices which will
achieve substantially the same results.
D-1
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<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL
INFORMATION EXTRACTED FROM THE COMPANY'S
AUDITED FINANCIAL STATEMENTS AS OF AND FOR THE
PERIOD ENDING SEPTEMBER 30, 1999, AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
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<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-END> SEP-30-1999
<CASH> $162
<SECURITIES> 0
<RECEIVABLES> 15,325
<ALLOWANCES> 0
<INVENTORY> 15,078
<CURRENT-ASSETS> 31,824
<PP&E> 95,823
<DEPRECIATION> 41,041
<TOTAL-ASSETS> 84,466
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<COMMON> 1,072
0
0
<OTHER-SE> 49,722
<TOTAL-LIABILITY-AND-EQUITY> 84,466
<SALES> 27,068
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<CGS> 23,746
<TOTAL-COSTS> 25,436
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<INCOME-PRETAX> 1,598
<INCOME-TAX> 544
<INCOME-CONTINUING> 1,054
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