EXHIBIT 10.1
SIXTH AMENDMENT attached to and made a part of that certain Lease dated
September 10, 1991, between FIRST INDUSTRIAL MORTGAGE PARTNERSHIP, L.P.,
successor in interest to WS Development Company, as Landlord, and SOMANETICS
CORPORATION, as Tenant, covering Premises at 0000 X. Xxxxx Xxxx, Xxxx, Xxxxxxxx.
NOTWITHSTANDING anything to the contrary contained in the Lease, Agreement,
Addenda to Lease, Termination of Agreement, and Extension of Lease to which this
Sixth Amendment is attached to and made a part thereof, the Landlord and Tenant
agree as follows:
1. The Term of the Lease shall be Five (5) years, Five (5) months, commencing
August 1, 2004 and terminating December 31, 2009.
2. The minimum net rent for said extended Five (5) year, Five (5) month Term
shall be Seven Hundred Seventy-Seven Thousand Three Hundred Seven and
96/100 Dollars ($777,307.96) payable in monthly installments in advance as
follows:
Months Monthly Base Rent
------ -----------------
August 1, 2004 - December 31, 2004 $ 11,696.00
January 1, 2005 - December 31, 2005 $ 11,696.00
January 1, 2006 - December 31, 2006 $ 11,696.00
January 1, 2007 - December 31, 2007 $ 11,929.92
January 1, 2008 - December 31, 2008 $ 12,168.52
January 1, 2009 - December 31, 2009 $ 12,411.89
3. TERMINATION RIGHT. Notwithstanding anything to the contrary contained
herein, if (a) Tenant enters into an agreement for the sale of all of the
assets of Tenant to an unrelated third party (i.e. an individual or entity
that is neither an individual or entity that is a direct or indirect
subsidiary of Tenant, an individual or entity of which Tenant is a direct
or indirect subsidiary, or any other subsidiaries of any of the foregoing
individuals or entities), or ( b) Tenant's shareholder(s) enters into an
agreement for the sale of all of Tenant's stock with an unrelated third
party (i.e. an individual or entity that is neither an individual or
entity that is a direct or indirect subsidiary of Tenant, an individual or
entity of which Tenant is a direct or indirect subsidiary, or any other
subsidiaries of any of the foregoing individuals or entities) and either
of the sales described in (a) or (b) is fully consummated on or before
September 1, 2007, Tenant shall have a one-time option to terminate this
Lease ("TERMINATION OPTION") in accordance with the following terms and
conditions:
TENANT GIVES NOTICE. If Tenant desires to exercise the Termination Option,
Tenant shall give Landlord irrevocable written notice ("TERMINATION
NOTICE") of Tenant's exercise of this Termination Option, which shall be
delivered by certified mail, which Termination Notice must be received by
Landlord no later than the date that is four (4) full months prior to the
Termination Date (defined below), that is, such Termination Notice must be
received by Landlord no later than September 1, 2007. Time is of the
essence with respect to Landlord's receipt of the Termination Notice and
all other deadlines in this Sixth Amendment, Paragraph 3.
TERMINATION DATE. If Tenant gives the Termination Notice and complies with
all the provisions in this Sixth Amendment, Paragraph 3, the Lease shall
terminate at 11:59 p.m. on December 31, 2007 (the "TERMINATION DATE").
TERMINATION FEE MUST ACCOMPANY NOTICE. In order for such Termination
Notice to be effective, it must be accompanied by the termination fee in
the amount of Thirty Thousand and 00/100 Dollars ($30,000.00), which shall
be payable only in cash or certified funds.
TENANT'S OBLIGATION SURVIVES TERMINATION. Tenant's obligations to pay
Rent, Additional Rent, and any other costs or charges under this Lease,
and to perform all other Lease obligations for the period up to and
including the Termination Date, shall survive the termination of this
Lease.
LANDLORD MAY CANCEL AND VOID TERMINATION IF TENANT IS IN DEFAULT.
Notwithstanding the foregoing, if at any time during the period on or
after the date on which Tenant shall exercise its Termination Option (in
accordance with this Sixth Amendment, Paragraph 3) up to and including the
Termination Date Tenant shall be in Default of this Lease, then Landlord
may elect, but is not obligated, to cancel and declare null and void
Tenant's exercise of the Termination Option and this Lease shall continue
in full force and effect for the full Lease Term hereof unaffected by
Tenant's exercise of the Termination Option. If Landlord does not cancel
Tenant's exercise of the Termination Option after Tenant's Default, Tenant
shall cure any Default within the period of time specified in this Lease
and this obligation shall survive the Termination Date.
TENANT SHALL SURRENDER SPACE BY TERMINATION DATE. In the event Tenant
exercises the Termination Option, Tenant covenants and agrees to surrender
full and complete possession of the Premises to Landlord on or before the
Termination Date vacant, broom-clean, in good order and condition, and, in
accordance with the provisions of this Lease, and thereafter the Premises
shall be free and clear of all leases, tenancies, and rights of occupancy
of any entity claiming by or through Tenant.
FAILURE TO SURRENDER MAKES TENANT A HOLDOVER. If Tenant shall fail to
deliver possession of the Premises on or before the Termination Date in
accordance with the terms hereof, Tenant shall be deemed to be a holdover
tenant from and after the Termination Date, and in such event, Tenant
shall be liable to Landlord for payments for the use and occupancy of the
Premises equal to the fair market value thereof, and shall also be liable
to Landlord for all costs and expenses incurred by Landlord in securing
possession of the Premises. Landlord may accept any such sums from Tenant
without prejudice to Landlord's right to evict Tenant from the Premises by
any lawful means.
LEASE CEASES AFTER TERMINATION. If Tenant properly and timely exercises
the Termination Option and properly and timely satisfies all other
monetary and non-monetary obligations under this Lease, the Lease shall
cease and expire on the Termination Date with the same force and effect as
if said Termination Date were the date originally provided in this Lease
as the expiration date of the Term hereof.
4. Section 10 - Repairs and any subsequent sections of the Lease referring to
repairs and maintenance shall remain the same except for the following:
Landlord shall be responsible during the Term for the repairs and
replacements, if and when necessary, of the roof and exterior roof
structure of the building the foundation, footings and exterior structural
components of the Building. The cost and expenses incurred by Landlord for
the repairs and replacement that Landlord must perform under this Sixth
Amendment, Paragraph 4 shall be allocated as follows: (i) all such repairs
and replacement shall be at Landlord's expense. Notwithstanding the
previous sentence to the contrary, in the event that any such repair or
replacement is required to be performed by Landlord under this Sixth
Amendment, Paragraph 4 and is necessitated by (w) the performance or
existence of any Alterations, (x) the installation, use or operation of
Tenant's Property in the Premises, (y) the moving of Tenant's Property in
or out of the Property, or (z) any negligent act or omission, misconduct,
or misuse by tenant, any of its subtenants, or others entering into the
Premises by act or omission of Tenant or any subtenant (collectively,
"Tenant Necessitated Repairs"), then Tenant shall be required to reimburse
Landlord for all cost and expense that Landlord incurs in order to perform
such Tenant Necessitated Repairs, and such reimbursement shall be paid in
full within 10 days after Landlord's delivery of demand therefore.
Landlord shall also be responsible during the Term for the replacement, if
and when necessary of the HVAC and the repair and replacement of the
parking lot at the Property. Landlord shall be responsible for all costs
and expenses incurred of all such repairs and replacements.
Notwithstanding the previous sentence to the contrary, in the event that
any such repair or replacement is required to be performed by Landlord
under this Sixth Amendment, Paragraph 4 and is necessitated by (w) the
performance or existence of any Alterations, (x) the installation, use or
operation of Tenant's Property in the Premises, (y) the moving of Tenant's
Property in or out of the Property, or (z) any negligent act or omission,
misconduct, or misuse by tenant, any of its subtenants, or others entering
into the Premises by act or omission of Tenant or any subtenant
(collectively, "Tenant Necessitated Repairs"), then Tenant shall be
required to reimburse Landlord for all cost and expense that Landlord
incurs in order to perform such Tenant Necessitated Repairs, and such
reimbursement shall be paid in full within 10 days after Landlord's
delivery of demand therefore
5. Subject to any changes required by local authorities, Landlord agrees to
construct at its cost the tenant improvements described in attached
Exhibit B-1 (the "Tenant Improvements"). Landlord will use commercially
reasonable efforts to complete the Tenant Improvements as soon as
reasonably possible after the Date of Commencement, such construction to
be completed in a good and workmanlike manner. All installations shall be
in a location acceptable to Landlord, consistent with the specifications
attached as Exhibit B-1. For purposes of Section 21 of this Lease, the
Tenant Improvements shall be treated as Alterations.
All other terms and conditions of said Lease, Agreement, Addenda to Lease,
Termination of Agreement and Extension of Lease to remain in full force and
effect unless in conflict with the terms and conditions of this Sixth Amendment
shall prevail and control.
LANDLORD:
FIRST INDUSTRIAL MORTGAGE
PARTNERSHIP, L.P., a Delaware limited
partnership, successor in interest to WS
Development Company
By: First Industrial Mortgage Corporation, a
Maryland corporation
Its: General Partner
/s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------------
By: Xxxxxxx X. Xxxxxxxxxx
National Regional Director
TENANT:
SOMANETICS CORPORATION, a Michigan
corporation
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Dated: April 21, 2004 Its: President and CEO
EXHIBIT B-1
Landlord shall provide the following:
- 28 oz. nylon carpet, paint and caulk the joints in the office area.
- Install VCT tile in the office area.
- Replace stained ceiling tiles.
- Caulk windows, where leaking.
