1
EXHIBIT 10.17
LEASE
-----
THIS LEASE is made this 24th day of January, 1997, between VALLEY
INDUSTRIES
REALTY L.P., a Delaware limited partnership (hereinafter called the "Lessor")
and VALLEY INDUSTRIES, INC., a Delaware corporation (hereinafter called the
"Lessee").
WITNESSETH:
-----------
ARTICLE I - GRANT AND TERM
--------------------------
1.1 Premises. In consideration of the rents, covenants and agreements
herein contained, the Lessor hereby demises and leases unto the Lessee and the
Lessee rents from the Lessor those certain parcels of land known for street
location purposes as 32451 and 32501 DeQuindre Road, Madison Heights, Michigan
and more fully described on the attached Exhibit A incorporated herein by this
reference, along with all buildings, improvements and fixtures now or hereafter
placed in or on the property and all rights, easements and appurtenances
related thereto, which property is hereinafter referred to as the "Premises" or
"Leased Premises".
1.2 Purpose and Term. The Leased Premises shall be used by the Lessee for
office and manufacturing purposes. The term of this Lease shall commence on the
date hereof and ending on the 31st day of December, 2002. A "Lease Year" shall
mean a period of twelve (12) consecutive months commencing January 1st of each
year and ending December 31st of such year.
1.3 Replacement Lease. This Lease shall replace and supercede that certain
Lease between the Lessor and Lessee dated May 27, 1993 (the "Prior Lease")
which related solely to the property located at 32501 DeQuindre Road in Madison
Heights, Michigan. Notwithstanding the foregoing, the rights and obligations of
the Lessor and Lessee under the terms of the Prior Lease as related to events,
occurrences and conditions which occurred or otherwise arose during the term
thereof.
ARTICLE II
----------
RENT-TAXES-UTILITIES
--------------------
2.1 Minimum Rent. Lessee covenants and agrees with Lessor to pay as
minimum rent (the "Minimum Rent") the sum of Twenty-One Thousand and 00/100
Dollars ($21,000.00) per month, subject to adjustment as set forth in Sections
2.4 and 2.5 hereof, payable at such address as Lessor shall designate, in
advance, commencing on the date on which Lessor takes fee simple title to the
Premises (the "Rent Commencement Date") and thereafter on the 1st day of each
calendar month during the continuation of this Lease; provided, however, that
if the Rent Commencement Date occurs other
2
than the first day of a calendar month, then the Minimum Rent Payment for the
first month shall be prorated according to the number of days remaining in the
first month.
2.2 Rent Tax and Real Estate Taxes. Lessee covenants and agrees to pay all
real estate taxes and assessments due or to become due on the Leased Premises
during the continuation of this Lease as and when such taxes and assessments
become due and payable. Any sales, gross rental, net rental or other duly
imposed tax which is measured by or imposed upon the rent and other charges
herein provided to be paid to Lessor, shall be borne by Lessee, except that
Lessee shall not thereby be required to pay any inheritance, franchise, income,
personal property or similar taxes levied on the business or operation of
Lessor.
2.3 Utilities. Lessee covenants and agrees with Lessor to pay for, as and
when due, all electric current, all gas, all water charges, including sewer
taxes, rentals and surcharges, and all rubbish removal charges, incurred in or
related to the Leased Premises during the term of this Lease, at the rates of
the utility company, municipality or other entity supplying the services and
according to the rules, readings of the meters or submeters measuring the
quantity furnished to the Leased Premises. Any failure to pay such utility
charges within ten (10) days of the date they are due shall constitute a
default by Lessee under the terms of this Lease.
2.4 Monthly Adjustments. The Minimum Rent due hereunder in respect of each
month during the term of this Lease shall be subject to monthly adjustment (the
"Monthly Adjustment") by an amount equal to the "Excess Interest." For purposes
of this Lease, Excess Interest shall mean any interest payable by Lessor
during the continuation of this Lease on any mortgage indebtedness encumbering
the Leased Premises to the extent such interest payment exceeds an interest
payment computed on a base rate of interest of nine percent (9%) per annum.
Lessor shall notify Lessee in writing of any Monthly Adjustment and the Minimum
Rent shall be increased by such Monthly Adjustment commencing with the next
succeeding Minimum Rent payment and continuing thereafter.
2.5 Increased Annual Adjustment. The Minimum Rent due hereunder shall
be further adjusted annually each Lease Year during the continuation of this
Lease as follows:
(a) On or before November 1st of each Lease Year, Lessor and Lessee
shall use their best efforts to agree on the amount of increased
rent, if any, to be paid by Lessee to Lessor during the next
succeeding Lease Year.
(b) If pursuant to paragraph (a) above, Lessor and Lessee fail to agree on
an amount of increased rent, then the Minimum Rent due hereunder
shall be increased annually as of January 1st of each Lease Year
during the continuation of this Lease in proportion to the increase,
if any, in the Detroit All Items Consumer Price Index for Urban
Consumers ("CPIU - 1967 = 100") (the "Index") for the month of
December of each year over the Index for the month of December of the
immediately preceding year, In the event the Indexes for December are
not available by January 1st, earlier corresponding monthly Indexes
-2-
3
shall be used. In the event the Index is no longer available, the
Lessee agrees to accept any rent increase based upon comparable
statistics tending to fairly present such increases in the costs of
living in the Detroit area calculated by the Lessor acting in good
faith with respect thereto.
One twelfth (1/12) of the increased annual rent, if any, as determined
in this paragraph 2.5, shall be paid by Lessee to Lessor monthly
during the Lease Year for which such increased rent is so determined,
along with and in addition to the Minimum Rent, provided, however,
that in no event and at no time during the continuation of this
Lease, shall rent paid by Lessee to Lessor be less than the Minimum
Rent.
2.6 Security Deposit. Lessee shall deposit with Lessor the additional sum
of Ten Thousand Eight Hundred Seventy-Five and 00/100 Dollars ($10,875.00),
receipt of which is hereby acknowledged by Lessor, as security for the full and
faithful performance by Lessee of the terms, conditions, and covenants of this
Lease on Lessee's part to be performed and kept and for the cost of any repair
or correction of damage in excess of normal wear and tear. If at any time
during the term hereof Lessee shall be in default in the payment of rent or
other sums due hereunder, or any portion thereof, or of any other sums
expressly constituting rent hereunder, Lessor may appropriate and apply any
portion of the security deposit as may be necessary to the payment of the
overdue rent or other sums due hereunder. If at any time during the term hereof
Lessee should fail to repair any damage to the Premises that it is required to
repair pursuant to the terms hereof, Lessor may appropriate and apply any
portion of the security deposit as may be reasonably necessary to make such
repairs. The security deposit or any balance thereof shall be returned without
interest after the Lessee has surrendered the Premises in an acceptable
condition (following a personal inspection by Lessor). If Lessor determines
that any loss, damage, or injury chargeable to the Lessee hereunder exceeds the
security deposit, the Lessor, at its option, may retain the said sum as
liquidated damages or may apply the sum against any actual loss, damage, or
injury and the balance thereof will be the responsibility of Lessee. Lessor's
determination of the amount, if any, to be returned to the Lessee shall be
final. It is further understood and agreed that the said security deposit is
not to be considered as the last payment under the Lease.
-3-
4
ARTICLE III
-----------
POSSESSION, USE AND SURRENDER OF PREMISES
-----------------------------------------
3.1 Possession and Surrender. Lessee shall take possession of the Premises,
in the condition in which they are at the beginning of the term, shall not
permit the Premises to be vacant during the term, and at the end of the term
shall deliver all keys to Lessor and leave the Premises broom clean and in as
good condition as received and/or thereafter improved by Lessor, except for
reasonable wear and tear, or damage arising from causes covered under standard
policies of fire and extended coverage insurance. Lessee shall be obligated to
remove any alterations or improvements to the Leased Premises done by Lessee
upon the written request of the Lessor and Lessee shall repair any damage
caused by such renewal. Any merchandise, material or waste left in the Premises
or adjacent interior or exterior areas by Lessee after the end of the term may
be summarily removed by Lessor without notice to Lessee, and Lessee agrees to
reimburse Lessor for the cost of such removal.
3.2 Use of Premises. Lessee shall use and occupy the Premises in a safe
and careful manner, conforming to good housekeeping practices in Lessee's trade
or industry and to reasonable recommendations of the fire insurance
underwriters insuring the Leased Premises. Lessee shall make all alterations or
improvements to the Leased Premises, necessary and proper for the conduct of
its business, in a good and workmanlike manner free of liens of contractors,
materialmen or laborers. Any structural alterations or improvements shall be at
Lessee's sole cost and expense and with the consent of the Lessor first
obtained. Lessee shall conform to and obey all laws, ordinances, rules,
regulations, requirements and orders of all governmental bodies or authorities
respecting its use of the Premises. Lessee agrees not to use the Premises in
any manner deemed specially hazardous because of fire risk or otherwise, or
unless Lessor shall first consent in writing for any purpose other than
hereinbefore stated. If Lessee installs equipment which unbalances or overloads
electrical equipment or wiring in or about the Premises, Lessee shall correct
such unbalanced or overloaded condition and replace equipment or wiring damaged
at Lessee's own expense. If Lessee deposits grease, toxic materials or other
substances in sewers or drains serving the Premises, Lessee shall have such
sewers and drains cleaned at Lessee's expense as often as Lessor considers
necessary for the continuous and unrestricted operation of such sewers.
Lessee warrants that it shall not make any use of the Premises or any
other portion of the Premises which may cause contamination of the soil, the
subsoil, air, or ground water.
Lessee shall keep and maintain the Premises in compliance with, and shall
not cause or permit the Premises to be in violation of any federal, state or
local laws, ordinances, rules or regulations pertaining to health, industrial
hygiene or the environmental conditions on, under or about the Premises,
including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq. the Clean Air Act, 42 U.S.C. Section 7401 et seq., and such state
counterparts or supplements as may from time to time be enacted, and all
regulations pertaining thereto (herein collectively referred to as
"Environmental Laws").
-4-
5
Lessee shall indemnify and hold harmless Lessor, its partners and their
officers, employees, agents, successors and assigns from and against any and
all loss, cost, damage, expense, liability and claims arising from Lessee's use
of the Premises for the conduct of its business or from any activity, work or
other things done or suffered by the Lessee in or about the Premises,
specifically including any violation of any Environmental Laws.
3.3 Removal of Trade Fixtures. If Lessee be not in default hereunder, all
trade fixtures and/or equipment installed in the Premises by Lessee may, and if
Lessor so requests, shall, be removed at the end of the term; provided,
however, that Lessee shall repair, at its own expense, any injury to the
Premises resulting from such removal. If removed equipment includes lighting
fixtures, Lessee shall restore and leave in operating order and with operating
bulbs or tubes the equivalent of the lighting equipment in the Premises at the
beginning of the term.
ARTICLE IV
----------
MAINTENANCE OF THE PREMISES
---------------------------
4.1 Maintenance by Lessee. Lessee covenants and agrees to keep and
maintain the Premises in good order, condition and repair, and, except as
provided in Article 4.3, to promptly make all repairs or replacements becoming
necessary during the term hereof including, but without limitation, repairs or
replacements of windows, doors, glass (which shall be replaced with glass of
the same size and quality), electrical, plumbing and sewage lines and fixtures
within the Premises, and all heating, air conditioning and ventilating
equipment and ducts and vents attached thereto, including any of such equipment
which may, with Lessor's consent, be mounted on the roof of the Premises; all
walls, floor covering, ceilings and roof and all fire extinguishers and
building appliances of every kind. Lessee shall make no alterations in or to
the Premises nor shall Lessee cause or permit any equipment or apparatus to be
installed or put upon or through the roof, walls or floors of the Premises
without, in each case, Lessor's prior written consent, which consent shall not
be unreasonably withheld. Lessee shall at all times maintain sufficient heat in
the Premises to prevent freezing of water lines. If Lessee installs or moves
partitions or walls in the Premises, Lessee shall also make, at its own expense
but subject to Lessor's approval, all additions to or changes in location of
heating, plumbing, sprinkler or electrical equipment in the Premises made
necessary by those installations.
4.2 Lessor's Right to Access. Lessee covenants and agrees to permit Lessor
to enter the Premises at all reasonable or necessary times to examine their
condition or to make repairs and improvements as provided hereunder. During the
last six (6) months of the term of this Lease, Lessor shall have the right to
show the Premises to prospective tenants at all reasonable times and to
maintain a "for rent" sign on the exterior thereof.
4.3 Casualty Damage. Lessor and Lessee agree that if the Premises shall
be materially damaged or destroyed by fire or other casualty covered under the
policies of fire and extended coverage insurance on the Leased Premises, and
such damage or destruction could reasonably be repaired within one hundred
twenty (120) days from the happening thereof, then Lessee shall proceed with
all reasonable speed to repair such damage or destruction and to restore the
Premises as nearly as practicable to their condition immediately preceding such
damage or destruction to the extent of the
-5-
6
available net insurance proceeds and subject to the approval by Lessor of all
plans and specifications for such repair. If the Premises cannot reasonably be
restored within the number of days set forth above but can be restored within
one hundred eighty (180) days, then Lessee may, but shall not be required to,
restore the Premises in accordance with the foregoing. If Lessee does not elect
to restore the Premises pursuant to the preceding sentence, then Lessor may, by
prompt written notice to Lessee, elect to restore the Premises at its sole cost
and expense using the net insurance proceeds to apply to the cost and expense
necessary to restore the Premises. If neither party elects to restore the
Premises, then this Lease shall terminate as of the date of such damage or
destruction and both parties shall be released from further liability
hereunder, without prejudice, however, to any rights accruing to either party
prior to the date of such damage or destruction.
If in any case Lessee elects or is required to restore the Premises and
promptly commences and thereafter diligently pursues such restoration, this
Lease shall not terminate, notwithstanding that the actual time required for
such repairs or restoration may exceed that contemplated by the parties. The
rent for the Premises during the time Lessee is deprived of possession on
account of such damage or destruction or the repair or restoration thereof
shall be abated on a per diem basis.
4.4 Liens. The Lessee shall not have the power to do any act or make any
contract which may create or be the basis for any lien upon the interest,
reversion or other estate of the Lessor in the Leased Premises and, as relates
to construction, repairing, reconstruction, or the making of alterations or
additions to the Leased Premises, by Lessee, it is expressly understood and
agreed, and notice is hereby given, that no persons, firms, or corporations,
furnishing labor, material, or services for such construction, repair,
reconstruction, or the making of alternations or additions to the Leased
Premises at any time during the term hereof shall have any lien upon the
Lessor's interest in the Leased Premises or upon the appurtenances, equipment,
machinery and fixtures thereof. If, because of any act or omission of Lessee or
anyone claiming by, through, or under Lessee, any mechanic's or other lien or
order for the payment of money shall be filed against the Leased Premises, or
against Lessor (whether or not such lien or order is valid or enforceable as
such), Lessee shall, at its own cost and expense, cause the same to be
cancelled and discharged of record within thirty (30) days after the date of
filing thereof, excluding any delay due to cause(s) beyond the control of
Lessee, and shall also indemnify and save harmless Lessor from and against any
and all costs, expenses, claims, losses or damages, including reasonable
counsel fees, resulting therefrom or by reason thereof.
-6-
7
ARTICLE V
---------
INSURANCE AND LIABILITY
-----------------------
5.1 Indemnification and Insurance. Lessee covenants and agrees to
indemnify and save Lessor free and harmless from and against any damage, loss
or liability for injury to or death of persons and/or loss or damage to
property, not compensated for by Lessor's insurance, occasioned by, growing out
of, or arising or resulting from Lessee's default hereunder or from any act or
omission of Lessee, its agents or employees. Lessee shall during the term
hereof and at its own expense carry public liability insurance with at least
$1,000,00.00 bodily injury and $500,000.00 property damage limits, with Lessor
named as an additional insured, and a copy of such policy, or certificate
thereof, shall be kept on deposit with Lessor. Lessee further covenants and
agrees that during the term of this Lease it shall carry fire and extended
coverage insurance on the Leased Premises at Lessee's expense, with companies
qualified in the State of Michigan and approved by Lessor and any mortgagee of
the Leased Premises, for the full insurable value of the building(s) and other
improvements on the Leased Premises, naming the Lessor and any mortgagee of the
Leased Premises as additional insureds. Lessee further agrees to exhibit such
policies or certificates of such policies to Lessor and any mortgagee of the
Leased Premises upon its request and agrees that such policies shall not be
subject to cancellation unless sixty (60) days prior written notice of such
cancellation is first provided Lessor and any mortgagee of the Leased Premises.
5.2 Lessor's Nonliabilitv. Lessor shall have no responsibility for the
care or safety of merchandise or other property kept on the Premises by Lessee,
and shall not be liable for any damage caused directly or indirectly by acts or
omissions of others, or by water or steam leaking, escaping or bursting from
any sprinkler equipment, water, steam or other pipes, washstands, tanks, water
closets or sewers in, above, under, upon or about the Premises, or by water,
snow or ice being upon or coming through the roof, skylights, windows,
trapdoors or otherwise.
5.3 Mutual Waiver of Subrogation. To the extent they may do so without
invalidating their respective policies of insurance, Lessor and Lessee each
agree to and hereby do waive all rights of recovery and cause of action against
the other for damage to property caused by any of the perils covered by any of
their respective policies of insurance as now or thereafter in force,
notwithstanding that any such damage or destruction may be due to the
negligence of either party, or person claiming under or through them.
5.4 Limited Liability of Lessor. Lessee agrees to look solely to Lessor
and Lessor's assets for the satisfaction of any claim, liability, or judgment
obtained against Lessor and arising out of this Lease, and no partner of
Lessor, whether general or limited, or his heirs, successors, personal
representatives or assigns, shall have any personal liability or responsibility
hereunder whatsoever. In the event of a sale of the Premises, or of the
property in which they are contained, during the term, and an assumption by the
purchaser of the Lessor's obligations hereunder, Lessor shall be immediately
and automatically released from further liability under this Lease.
-7-
8
ARTICLE VI
EMINENT DOMAIN
6.1 Eminent Domain. Appropriation of all the Leased Premises shall
terminate this Lease as of the date thereof. If part, but not all, of the
Leased Premises be appropriated, and loss of the part appropriated would have a
significant detrimental effect on Lessee's use of the Premises, then Lessee
shall have the right to cancel this Lease by written notice to Lessor given
within fifteen (15) days after such appropriation. Cancellation shall be as of
the effective date of such appropriation. In the event Lessee elects to cancel
this Lease pursuant to this Article 6.1, Lessee shall vacate the Premises as of
the date the Premises are to be delivered to such appropriating agency or body
and upon such vacation this Lease shall terminate. If Lessee does not exercise
its cancellation right, Lessor shall, at the expiration of the fifteen (15) day
period, proceed with all reasonable dispatch to repair any damage to the
Premises caused by the appropriation, and Lessee shall be entitled to a
reasonable adjustment in the rent accruing hereunder from the date of
appropriation, proportionate to that part of the Premises so taken.
6.2 Allocation of Award. Lesee shall not be entitled to any part of an
award or settlement of damages representing the value of land and building
appropriated, or any estate therein, or damage to the residue of the Leased
Premises or other property of Lessor, it being agreed that as between Lessor
and Lessee any such award shall be the sole property of Lessor. However, in any
condemnation proceeding, Lessee may claim and receive compensation from the
condemning authority for damage to its fixtures, for the cost of removal and
damage by reason thereof, and for any other loss or damage it may suffer by
reason of the appropriation. No appropriation of part or all of the Leased
Premises, or cancellation of this Lease pursuant to this Article shall be
deemed an eviction of Lessee, or a breach of any covenant of Lessor hereunder.
6.3 Rent Reduction. For purposes of this Article, the terms
"appropriation" or appropriated" shall mean a taking in condemnation
proceedings by right of eminent domain, or a conveyance by Lessor to a public
or quasi-public authority under threat of condemnation, and the date of
appropriation shall be the date on which any such event occurs. Where a rent
adjustment is provided for in this Article, the amount of the reduction shall
be determined by agreement between Lessor and Lessee, or if they are unable to
agree within thirty (30) days after appropriation, shall be determined by an
arbitrator appointed under the rules of the American Arbitration Association,
as then in effect. Ihe decision of such arbitrator shall be final and binding
on the parties and the expense of arbitration shall be borne by them equally.
-8-
9
ARTICLE VII
DEFAULT BY LESSEE
7.1 Default by Lessee. If Lessee shall at any time be in default in the
payment of rent or other charges or in the performance of any of its agreements
hereunder, and if such default relates to the payment of money, shall fail to
remedy it within ten (10) days after written notice from Lessor, or if the
default relates to matters other than the payment of money, fails to commence to
remedy it within thirty (30) days after written notice from Lessor and
thereafter diligently to pursue correction thereof, or if a receiver of any
property of Lessee on the Premises be appointed, or Lessee's interest in the
Premises is levied upon by legal process, or Lessee be adjudged bankrupt, and
Lessee fails within thirty (30) days to commence, and thereafter diligently to
pursue proceedings for the vacation of such appointment, levy or adjudication,
or if Lessee shall dispose of all or substantially all of its assets in bulk,
or make an assignment for the benefit of its creditors, then, and in any such
instance, without further notice to Lessee, Lessor may enter upon the Premises
notwithstanding the provisions of this Lease, and in the event of such entry,
Lessor may either:
(a) Terminate this Lease, in which event the obligations of Lessee
hereunder shall cease, without prejudice however to the right of
Lessor to recover from Lessee for rent or otherwise to the date of
entry, and in addition, as liquidated damages, a sum equal to any
deficiency between the then rental value of the Premises for the
unexpired portion of the term and the rent provided for that period,
discounted at four per cent (4%) per annum to present net worth,
plus the reasonable estimated expenses of reletting. If Lessee be
adjudicated a bankrupt, Lessor shall in lieu of such liquidated
damages be allowed a claim in the bankruptcy proceeding for future
rent to the extent permitted by bankruptcy laws; or
(b) Enter upon the Premises without terminating this Lease and relet them
in its own name for the account of Lessee for the remainder of the
term (and thereafter for its own account) at the highest rent then
attainable, and make such alterations and repairs as may be necessary
to effect reletting, and immediately recover from Lessee any
deficiency for the balance of the term between the amount for which
the Premises were relet and the rent provided hereunder discounted at
four per cent (4%) per annum to present net worth plus any expense of
reletting or alteration.
Upon any such entry, Lessor may remove all persons and property from the
Premises, and such property may be removed and stored at a public warehouse or
elsewhere at the cost of and for the account of Lessee, all without service of
notice or resort to legal process (all of which Lessee expressly waives), and
without being deemed guilty of trespass, or becoming liable for any loss or
damage which may be occasioned thereby. Upon default by Lessee, Lessor shall
have a lien for the payment of all
-9-
10
sums agreed to be paid by Lessee hereunder upon all Lessee's property and
Lessee agrees to execute and deliver such financing statements as may be
required by law to confirm and perfect such lien.
ARTICLE VIII
MISCELLANEOUS
8.1 Quiet Enjoyment. Lessor covenants and agrees that if Lessee pays the
minimum and additional rent and other charges herein provided, and performs all
the covenants and agreements herein stipulated to be performed on Lessee's
part, Lessee shall, at all times during the term, have the peaceable and quiet
enjoyment and possession of the Premises without any manner of hindrance from
Lessor or from any other persons except as to any portion of the Premises that
may be taken by eminent domain.
8.2 Assignment and Subletting. Lessee shall not, in each instance, (i)
assign, convey, mortgage or hypothecate this Lease or any interest therein;
(ii) allow any transfer hereof or any lien upon Lessee's interest by operation
of law; (iii) sublet or license the Premises or any part thereof; or (iv)
permit the use or occupancy of the Premises or any part thereof by anyone other
than Lessee or for any purpose other than as provided herein. Any transfer of
this Lease by merger, consolidation or liquidation, or by any change in
ownership or power to vote a majority of its outstanding voting stock to a
surviving corporation or continuing corporation with a net worth of less then
Five Million Dollars ($5,000,000) shall constitute an assignment for purposes
of this Lease. Consent to any such assignment, conveyance or subletting by
Lessor shall not operate as a waiver of the necessity for a consent to any
subsequent assignment, conveyance or subletting and the terms of such consent
shall be binding upon any person holding by, under or through Lessee. Any such
consent shall not relieve Lessee from liability hereunder for the payment of
rental or performance or observance of any of the terms and conditions of this
Lease.
8.3 Short Form Lease. This Lease shall not be recorded, but upon the
request of Lessee, Lessor shall execute a short form or memorandum thereof for
recording purposes which shall contain sufficient information to protect the
leasehold estate of Lessee.
8.4 Subordination and Offset Certificate. Lessee covenants and agrees,
within ten (10) days after Lessor's written request, to execute and deliver to
Lessor:
(a) Any documents necessary to subordinate this Lease to the lien of any
mortgage Lessor desires to place on the Premises, provided the
mortgagee agrees to allow Lessee to remain in possession provided
Lessee is not in default under the terms of this Lease, and/or
(b) A certificate to any proposed mortgagee or purchaser of the Premises
certifying that this Lease is in full force and effect and that there
are no defenses or offsets thereto on Lessee's part, if such be the
case, or if not, stating those claimed by Lessee, and stating the
date to which rent has been paid.
-10-
11
8.5 Relationship of Parties. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent or of partnership, or of joint venture, or
of any association whatsoever between Lessor and Lessee, it being expressly
understood and agreed that neither the computation of rent nor any other
provisions contained in this Lease, nor any act or acts of the parties hereto,
shall be deemed to crete any relationship between Lessor and Lessee other than
the relationship of landlord and tenant.
8.6 Holding Over. If Lessee shall remain in possession of all or any part
of the Premises after the expiration of the term of this Lease or any extension
or renewal thereof, then Lessee shall be deemed a Lessee of the Premises from
year to year. Any holding over by Lessee shall be upon and subject to all of
the terms and conditions of this Lease except as to the term of this Lease and
rent for the period of such hold over tenancy shall be at the highest rate
payable for any portion of the term.
8.7 No Waiver. No receipt of money by Lessor from Lessee with knowledge of
the breach of any covenants of this Lease, or after the termination hereof, or
after the service of any notice, or after the commencement of any suit, or
after final judgment for possession of said Premises shall be deemed a waiver
of such breach, nor shall it reinstate, continue or extend the term of this
Lease or affect any such notice, demand or suit. No consent or waiver, express
or implied, by Lessor to or for any other breach of any covenant, condition, or
duty of Lessee shall be construed as a consent or waiver to or for any other
breach of the same or any other covenant, condition or duty to be observed by
Lessee.
8.8 Notices. Any notice required or permitted to be given to Lessee
hereunder shall be sufficiently given if in writing, addressed to Lessee, and
mailed certified mail, return receipt requested, to such address as Lessee may
from time to time designate for that purpose in writing to Lessor, or in the
absence of designation, left on the Premises. Any notice required or permitted
to be given to Lessor hereunder shall be deemed sufficiently given if in
writing, addressed to Lessor, and mailed certified mail, return receipt
requested, or delivered to Lessor c/o Charles J. O'Toole, Esq., 1100 Huntington
Building, Cleveland, Ohio 44115 or to such other address as Lessor may from
time to time designate in writing to Lessee for that purpose.
8.9 Lessor's Consent. With respect to any consent of Lessor required
under the terms of the Lease, Lessor agrees that its consent shall be in
writing and not be unreasonably withheld.
8.10 Force Majeure. Except with respect to payment of rent, taxes, charges
for utilities and insurance premiums, in the event that either party
hereto shall be delayed or hindered in or prevented from the performance of
any act required hereunder by reason of strikes, lockouts, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or any other reason of a like nature not the fault of
the party delayed in performing work or doing any act required under the terms
of this Lease, then performance of such act shall be excused from the period of
the delay and the period of the performance of any act shall be extended for a
period equivalent to the period of such delay.
-11-
12
ARTICLE IX
----------
SPECIAL PROVISIONS
------------------
9.1 Parties and General Definitions. This Lease and all the covenants,
provisions, and conditions herein contained shall inure to the benefit of and
be binding upon the heirs, successors, and assigns of the parties; provided,
however, that no assignment by, from, through or under Lessee in violation of
any of the provisions hereof, shall vest in the assignee any right, title, or
interest whatever. Neuter pronouns shall be read as masculine or feminine, and
words in the singular person as plural, if the nature or number of the parties
require. The word "term" when used to refer to the period for which the
Premises are let and leased, including any period of holding over. Paragraph
headings are for convenience only, and their presence or absence shall not be
considered in the interpretation of this Lease.
9.2 Attorney's Fees. In the event it becomes necessary, for purposes of
enforcing the terms of this Lease, for either Lessor or Lessee to institute an
action at law or otherwise commence legal proceedings against the other, then,
at all trial and appellate levels respecting such proceedings, the prevailing
party shall be entitled to costs and attorney's fees from the other.
9.3 Governing Law and Venue. This Lease shall be construed in accordance
with the laws of the State of Michigan and venue shall lie in Oakland County,
Michigan.
IN WITNESS WHEREOF, this instrument has been executed by Lessor and Lessee
as of the day and year first above written.
Signed and acknowledged VALLEY INDUSTRIES REALTY L.P.,
in the presence of: a Delaware limited partnership
By: FISHER FINANCIAL SERVICES CORP.
General Partner
[SIG] By [SIG]
- ---------------------------- -----------------------------
[SIG] Its Secretary
- ---------------------------- ----------------------------
Lessor
VALLEY INDUSTRIES, INC.
[SIG] By [SIG]
- ---------------------------- ----------------------------
[SIG] Its VP-Finance & Administration
- ---------------------------- ----------------------------
Lessee
-12-
13
STATE OF OHIO )
) SS.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared VALLEY INDUSTRIES REALTY L.P., a Delaware limited partnership, by
Charles J. O'Toole, the Secretary of FISHER FINANCIAL SERVICES CORP., the
general partner of said partnership, who acknowledged that he did sign the
foregoing instrument and that the same is his free act and deed and the free
act and deed of said partnership.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal at
Cleveland, Ohio this 23rd day of January, 1997.
[SIG]
--------------------------
Notary Public
STATE OF MICHIGAN )
) SS.
COUNTY OF OAKLAND )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared VALLEY INDUSTRIES, INC., a Delaware corporation, by Mark S. Moriary,
its VP-Finance & Admin, who acknowledged that he did sign the foregoing
instrument and that the same is his free act and deed and the free act and
deed of said corporation.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal at
Madison Heights, Michigan this 24th day of January, 1997.
Tracey M. Besola
---------------------
Notary Public
This instrument prepared by: TRACEY M. BESOLA
Michael E. Elliott (Ohio Bar 0018761) NOTARY PUBLIC - MACOMB COUNTY, MI
ARTER & HADDEN MY COMMISSION EXPIRES 09/27/99
1100 Huntington Building
Cleveland, Ohio 44115
(216) 696-1100
205524.la
-13-