|
Exhibit
10.2
ONE TARGETING CENTRE
LEASE AGREEMENT
THIS ONE TARGETING CENTRE
LEASE (the “One Targeting Lease”) made as of this 19
day of June, 2008, by and between 1 Targeting Centre LLC,
whose address is 750 Trade Centre Way, Suite 100, Portage, MI
49002, SMITH CT 3, LLC, whose address is 108 South
University, Mt. Pleasant, Michigan 48858, and SMITH CT 4,
LLC, whose address is 108 South University, Mt. Pleasant,
Michigan 48858, hereinafter collectively referred to as
“Landlord,” and VALASSIS DIRECT MAIL, INC., a
Delaware Corporation, whose address is 19925 Victor Parkway,
Livonia, MI 48152, referred to as “Tenant.”
WITNESSETH:
| |
1. |
DESCRIPTION AND USE OF PREMISES |
Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord that certain real
property located in the City of Windsor, State of Connecticut,
commonly known as One Targeting Centre, Windsor, CT 06050, and more
particularly described and shown on the survey and legal
description as “Parcel B” on Exhibit
“A” attached hereto and made a part hereof,
together with the portion of the Targeting Centre Drive f/k/a
Univac Road shown on Exhibit A as well as all appurtenances,
improvements, easements, and rights-of-way thereunto pertaining
(“Premises”). Tenant shall use and occupy the Premises
as a professional office building only and for no other uses. The
building located on the Premises is agreed to consist of
Ninety-Seven Thousand Two Hundred and Fifty-Six
(97,256) square feet (“Building”). As of the date
written above, Tenant hereby accepts the Premises in it’s
“as is, where is” condition without representation or
warranty as to their condition or fitness for any particular
purpose from Landlord. Tenant further acknowledges that Tenant
owned and occupied the Premises prior to the date of this One
Targeting Lease and sold the Premises to Landlord as of the date of
this One Targeting Lease.
| |
2. |
TENANT IMPROVEMENT ALLOWANCE |
In order for the Premises to
be useful to Tenant and marketable in the future for Landlord,
Landlord and Tenant agree that Landlord shall pay an improvement
allowance to Tenant in order for Tenant to construct a buildout at
the Premises pursuant to Exhibit B attached hereto. Thus, Landlord
and Tenant acknowledge and agree that Tenant shall be provided an
Improvement Allowance in the amount of approximately Three Hundred
and Twenty Thousand Dollars ($320,000.00) for the work described in
accordance with Exhibit B (the “Tenant Improvements”).
No material deviations from Exhibit B shall be made by Tenant
without Landlord’s prior written consent, which shall not be
unreasonably withheld. “Material deviations” shall be
defined as an increase or decrease of $100,000 or more at the
Premises, it being agreed that the total Tenant Improvement
Allowance for the Premises and 235 Great Pond Drive leased to
Tenant under a separate lease shall not exceed $2,000,000. Approval
of the plans and specifications by Landlord shall not constitute
the assumption of and responsibility by
Landlord for their accuracy
or sufficiency, and Tenant shall be solely responsible for such
items. Tenant shall be responsible for any and all costs and
expenses which exceed the Improvement Allowance. Any portion of the
total Improvement Allowance shall be paid to Tenant or to
Tenant’s general contractor, Barton Malow Company, within 30
days following receipt by Landlord of (1) invoices;
(2) an AIA sworn statement from the general contractor,
(3) an affidavit from the Tenant that the payments from the
prior disbursement request have been made in full;
(4) Landlord lender approval and submittal by Tenant of
lender-requested mechanics or materialmen lien waivers or their
functional equivalents under applicable Connecticut’s
materialmen lien laws; and (5) and the certification of Tenant
and its architect that the Tenant Improvements have been made in
accordance with applicable laws, codes and ordinances. The
Improvement Allowance shall be disbursed in the amount reflected on
the invoices meeting the requirements above. Notwithstanding
anything herein to the contrary, Landlord shall not be obligated to
disburse any portion of Improvement Allowance during the
continuance of an uncured default under the Lease, and
Landlord’s obligation to disburse shall only resume when and
if such default is cured. The final 7 1 / 2 % of the
Improvement Allowance shall be withheld by Landlord and disbursed
upon receipt of the final sworn statement. Immediately after the
final payment is made, Tenant shall provide Landlord with
confirmation of full payment from all contractors, subcontractors,
and vendors who performed work to the Premises desired by
Tenant.
Tenant shall pay Landlord
rent in accordance with the rent schedule attached and incorporated
hereto as Exhibit C. The rent shall be payable in advance in
semi-annual installments, with said installment payments being made
to Landlord’s management company, SIRO II Management, LLC,
whose address is 750 Trade Centre Way, Suite 100, Kalamazoo, MI
49002. The first payment of rent in accordance with Exhibit C shall
be due on the commencement date of Tenant’s right to
possession as set forth in Article 4 hereof. Future payments shall
be due in advance of the first day of every six (6) months
thereafter. If the commencement date of this One Targeting Lease
shall fall on a day other than the first day of a calendar month,
then additional rental of an amount calculated by prorating the
semi-annual payment set forth above shall be paid by Tenant to
Landlord for the month in which said commencement date shall
occur.
A. TERM OF RIGHT OF
POSSESSION . The commencement of Tenant’s right to
possess and use the Premises shall be the date first written above.
The term of Tenant’s right to possession shall be one-hundred
and eighty three (183) months. If the commencement date is the
first day of a calendar month, the 183-month term shall begin to
run from that date. If the commencement date is other than the
first day of a month, the 183-month term shall commence on the
first day of the following month.
B. TERM OF OBLIGATIONS
. Notwithstanding the term of Tenant’s right to possession,
all of the provisions of this One Targeting Lease Agreement are
binding on the parties from the date this One Targeting Lease is
executed.
Page 2
| |
5. |
MAINTENANCE, REPAIRS AND ALTERATIONS |
A. Tenant covenants and
agrees to be responsible for all maintenance repair and upkeep of
the Premises during the term of Tenant’s right to possession.
Tenant’s maintenance repair and upkeep of the Premises shall
be done consistent with and in accordance to industry standards for
a class A facility. The Premises includes, but is not limited to,
all portions of the Premises depicted on Exhibit A, all parking
areas, a portion of the Targeting Centre Drive shown on Exhibit A,
the landscaping, the buildings, improvements, foundations, exterior
and interior walls, windows, doors, floors, ceilings, downspouts,
gutters, roof, skylights, plumbing and sewerage facilities,
air-condition system, heating system, electrical facilities and
equipment, glazing, lighting fixtures and all other figures,
equipment and appliances of every kind and nature. Tenant agrees
that Landlord shall not be called upon or obligated to make any
repairs, replacements, rebuildings, restorations, improvements,
alterations, remodeling or additions whatsoever in or about the
Premises.
B. Tenant shall be
responsible for all janitorial service on the Premises during the
term hereof.
C. Tenant shall not, without
the prior written consent of Landlord, which shall not be
unreasonably withheld, make alterations, improvements or additions
to the Premises and to the building and improvements
thereon.
D. Tenant shall be
responsible for all costs of maintaining and repairing (including
but not limited to resurfacing, striping, snow removal, etc) that
portion of the Targeting Centre Drive located on the Premises and
shown on Exhibit A.
E. In a situation involving a
need to repair, replace, or restore any portion of the Premises,
and which is not covered by the provisions of “Eminent
Domain” or “Damage and Destruction,” Tenant may,
claim the benefit of any property damage insurance which may be
payable to Landlord by reason of the loss or casualty giving rise
to such need. However, the benefits of such property damage
insurance may be claimed only for the purpose of and to the extent
necessary to replace, repair or restore the damaged or condemned
portion of the Premises.
F. Prior to December 31,
2008, Tenant shall, at its sole cost and expense, cause the
exterior lighting and irrigation system servicing the Premises and
the adjacent 10 Targeting Centre Property shown on Exhibit A to be
separated into two different exterior lighting and irrigation
systems servicing each premises individually. All work performed by
Tenant in splitting the aforementioned systems shall be done in a
first-class, workman-like manner and in accordance with all
applicable laws, rules and ordinances.
| |
6. |
EFFECT OF BANKRUPTCY OR OTHER PROCEEDINGS |
If at any time any bankruptcy
or reorganization proceeding is instituted by or against Tenant
either in the State or Federal Courts, or if a receiver is
appointed under Chapters X or ZI of the Bankruptcy Act, for its
business or property on the Premises, Landlord shall have
the
Page 3
option, to be exercised by written
notice given to Tenant, to declare this One Targeting Lease
terminated at any time after the expiration of twenty
(20) days following the commencement of such proceeding unless
the proceeding is dismissed and unless all payments of rent and
other payments required by this One Targeting Lease to be made by
Tenant to Landlord are paid promptly during said period of twenty
(20) days. Landlord shall under no circumstances be required
to permit a receiver to retain possession of said Premises, and
Landlord need not lease said Premises to such receivers, but
Landlord shall be entitled to immediate possession of said
Premises. Any repossession or termination hereunder shall not
operate in any way to prejudice or affect the right of Landlord for
recovery of rent or other charges theretofore accrued, thereafter
accruing or to any other damages, nor shall any such termination or
repossession ever be construed as a waiver of or an election not to
claim future damages on account of such breach, but all such
damages, including all future rentals, shall be fully recoverable
by Landlord.
The Tenant, upon paying the
rent herein provided and performing all and singular the covenants
and conditions of this One Targeting Lease on its part to be
performed, shall and may peaceably and quietly have, hold and enjoy
the Premises during the term hereof, and Landlord warrants that
Landlord has full right and sufficient title to lease the Premises
for the term herein provided, and agrees to indemnify Tenant for
and against any and all loss and damage that may result to Tenant
on account of any failure of, or defect in, Landlord’s title
or right to make and execute this One Targeting Lease.
Should either party hereto
institute any action or proceeding in court to enforce any
provision hereof or for damages by reason of any alleged breach of
any provision of this One Targeting Lease or for a declaration of
such party’s rights or obligations hereunder, or for any
other judicial remedy, the prevailing party shall be entitled to
receive from the losing party such amount as the court may adjudge
to be reasonable attorney’s fees for the services rendered to
the party finally prevailing in such action or
proceeding.
Tenant shall keep the
Premises free of construction liens and other liens of like nature
other than liens created or claimed by reason of any work done by
or at the instance of Landlord. Tenant agrees to protect and
indemnify Landlord against all such liens, or claims which may
ripen into such liens, and against all attorney’s fees and
other costs and expenses arising from any such claim or lien. If
Tenant fails to fully discharge any such lien or claim, or provide
a bond for the same, the Landlord, at its option, may pay the same
or any part thereof, and shall be the sole judge of the legality of
such lien or claim. Tenant shall repay Landlord all amounts so paid
by Landlord, together with interest thereon at the maximum rate
allowable by law from the time of payment by Landlord until
repayment by Tenant.
Page 4
| |
10. |
TENANT TO COMPLY WITH LAW |
Tenant shall, from the date
of this One Targeting Lease, and at its own expense, insure that
the Premises conforms to and complies with all laws, ordinances,
and regulations (including the Americans with Disabilities Act) now
in force or that are enacted hereafter affecting the use or
occupancy of all or any part of the Premises. Tenant indemnifies
Landlord against and agrees to save Landlord harmless from all
expenses imposed or incurred for or because of any violation by
Tenant or anyone claiming under Tenant of any law, ordinance, or
regulation occasioned by the neglect or omission, or willful act of
Tenant or any person on the Premises by permission or holding under
Tenant unless such violation results solely from an act or omission
on the part of Landlord and/or agents, servants or employees of
Landlord.
Tenant acknowledges that
Tenant has had the opportunity to review the commitment for the
owner’s policy of title insurance provided to Landlord from
Pinnacle Title Agency. Tenant reviewed all of the matters of record
reflected in such commitment and agrees to insure that the Premises
shall at all times comply with those matters of record affecting
the Premises from the date of this Agreement until the expiration
of this Agreement. Tenant shall indemnify and hold Landlord
harmless from all expenses and costs incurred by Landlord as a
result of any of the matters of record affecting the
Premises.
Tenant acknowledges that
Tenant has reviewed a survey of the Premises prepared by
Landlord’s surveyor. Tenant has expressly approved such
survey and hereby accepts the Premises in accordance with and
subject to all matters set forth on the survey. Tenant understands
that Tenant shall not be released from any of its obligations under
this Agreement due to error(s) on the survey, or any matters shown
on the survey.
Tenant agrees to pay all
charges when due for water, gas, electricity, or other utilities
incurred by it in connection with the Premises.
From the date of this
Agreement until the expiration of the Term and any renewals
thereof, Tenant shall pay all real property taxes and assessments
which may be levied upon or assessed against those lands comprising
the Premises. Tenant shall also pay all taxes or assessments levied
upon or assessed against the improvements situated within the
Premises and all taxes levied upon or assessed against any personal
property situated within the Premises. Tenant understands that
Landlord shall not be required to pay any taxes or assessments
whatsoever which may be or become a lien upon the lands,
improvements and personal property. Any taxes or assessments which
may be levied or assessed for a period beginning before the
commencement of this One Targeting Lease or ending after the
termination hereof shall be paid by Tenant. Upon expiration of this
Lease, the Landlord shall rebate to the Tenant any prepaid taxes or
assessments covering any period of time after expiration. Tenant
shall not be obligated
Page 5
to pay any income tax or other tax,
assessment or charge which may be levied or become due by reason of
the rents and profits received by Landlord as a result of this One
Targeting Lease.
| |
15. |
ACKNOWLEDGEMENT OF RECIPROCAL EASEMENT RIGHTS. |
Tenant acknowledges and
agrees that it shall abide by all easement rights granted to
Landlord as part of it’s acquisition of the Premises and
agreed to be responsible for those easement costs applicable to the
owner of Parcel B pursuant to a Reciprocal Easement Agreement dated
, 2008 and attached hereto as Exhibit E, for the benefit of the
Premises and the Ten Targeting Parcel (as shown on Exhibit A),
including but not limited to, easement rights for access to the Ten
Targeting Parcel via Targeting Centre Drive, utility easements,
signage easement and cross access easement.
| |
16. |
OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION;
LANDLORD’S MORTGAGEE’S APPROVAL OF THIS
LEASE |
A. Tenant agrees within ten
(10) days after request therefor by Landlord to execute in
recordable form and deliver to Landlord a statement, in writing,
certifying (a) that this One Targeting Lease is in full force
and effect, (b) the date of commencement of the term of this
One Targeting Lease, (c) that rent is paid currently without
any off-set or defense thereto, (d) all Improvement Allowance
amounts have been received or waived; (e) the amount of rent,
if any, paid in advance, (f) that there are no uncured
defaults by Landlord or stating those claimed by Tenant, and
(g) such other information as Landlord may reasonably request;
provided that, in fact, such facts are accurate and
ascertainable.
B. Tenant shall, in the event
any proceedings are brought for the foreclosure of or in the event
of exercise of the power of sale under any mortgage made by
Landlord covering the Premises, attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the
Landlord under this One Targeting Lease.
C. Tenant agrees that this
One Targeting Lease shall be subordinate to any first mortgages or
deeds of trust that may hereafter be placed upon the Premises and
to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, replacements and extensions thereof,
provided the mortgagee or trustee named in said mortgages or trust
deeds shall agree to recognize the lease of Tenant in the event of
foreclosure if Tenant is not in default. Tenant also agrees that
any mortgagee or trustee may elect to have this One Targeting Lease
designated as a prior lien to its mortgage or deed of trust, and in
the event of such election and upon notification by such mortgagee
or trustee to Tenant to that effect, this One Targeting Lease shall
be deemed prior in lien to said mortgage or deed of trust, whether
this One Targeting Lease is dated prior to or subsequent to the
date of said mortgage or deed of trust. Tenant agrees, that upon
the request of Landlord, any mortgagee or any trustee, it shall
execute whatever instruments may be required to carry out the
intent of this Section.
D. Failure of Tenant to
execute any of the above instruments within fifteen (15) days
upon written request so to do by Landlord, shall constitute a
breach of this One Targeting Lease and Landlord may, at its option,
cancel this One Targeting Lease and terminate Tenant’s
interest
Page 6
herein. Further, Tenant hereby
irrevocably appoints Landlord as attorney-in-fact
|