Exhibit 10.1
The Sublease between Autocon Technologies and Xxxxxx Xxxxx Corporation
dated April 30, 1999
SUBLEASE
This Sublease (the "Sublease") is entered into by AUTOCON
TECHNOLOGIES, INC., a Michigan corporation ("Sublessor"), and XXXXXX XXXXX
CORPORATION, a(n) _____________ corporation ("Sublessee"), as of the 30 day of
April, 1999.
1. Property Subleased. Sublessor hereby subleases to
Sublessee, and Sublessee hereby subleases from Sublessor, upon the terms and
conditions set forth herein, approximately twenty-three thousand two hundred
seventy-six (23,276) rentable square feet (the "Subleased Premises") in the
building located at 00000 Xxxxx Xxxx Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
(the "Building"). Said Subleased Premises are more particularly described in
Exhibit A, attached hereto and incorporated by this reference.
2. Master Lease and Master Lessor. The Subleased Premises are
a portion of the space in the Building presently being leased by Sublessor (the
"Premises"), assignee of Hurco Companies, Inc., from Hillmont Properties,
assignee of UNUM Life Insurance Company of America ("Master Lessor"), pursuant
to a Net Lease executed May 11, 1992 (the "Master Lease"). A copy of the Master
Lease is attached as Exhibit B and incorporated by this reference, except to the
extent the terms and provisions of the Master Lease conflict with the terms and
provisions of this Sublease, in which case the terms and provisions of this
Sublease shall control.
3. Use. The Subleased Premises shall be used only for general
office, warehouse purposes, small equipment/parts testing and administrative
activities and for no other purpose whatsoever without the prior written consent
of Sublessor and Master Lessor; provided, however, such use shall not be
inconsistent with or in contravention of the use provisions of the Master Lease.
Sublessee shall comply with all laws, ordinances, rules, and regulations,
whether the same are issued by a governmental or quasi-governmental authority or
by Master Lessor, relating to Sublessee's use or occupancy of the Subleased
Premises.
4. Provisions Regarding Main Lease. Except as otherwise
provided for herein, this Sublease and the rights of parties hereunder are
subject and subordinate to the Main Lease and the rights of Master Lessor
thereunder. Sublessee shall be bound with respect to the Subleased Premises by
all of the terms, covenants and conditions of the Master Lease governing use and
occupancy of the Subleased Premises and any common areas as if Sublessee were
the Lessee and Sublessor were the Lessor under the Master Lease. In particular,
Sublessee shall perform all affirmative covenants and shall refrain from
performing any act which is prohibited by the negative covenants of the Main
Lease, where the obligation to perform or refrain from performing is by its
nature imposed upon the party in possession of the Premises. Sublessor shall
have the right to enter the Subleased Premises to inspect the same and to cure
any default by Sublessee under this paragraph, provided Sublessor notifies
Sublessee of the default in writing, and Sublessee fails to cure the default
within thirty (30) days of receipt of the notice. Sublessor shall, as to the
Subleased Premises, perform or cause to be performed the obligations of Master
Lessor under the Main Lease. Sublessor shall have no responsibility for or be
liable to Sublessee for any default, failure or delay on the part of Master
Lessor in the performance or observance by Master Lessor of any of its other
obligations under the Main Lease or for any act or omission of Master Lessor,
its agents, employees or contractors, nor shall such default, act or omission by
Master Lessor affect this Sublease or waive or defer the performance of any of
Sublessee's obligations hereunder, except to the extent that the same excuses
performance by Sublessor under the Master Lease. Sublessor shall indemnify,
defend and hold Sublessee harmless from any claim, action, damage or expense
incurred by Sublessee as a result of Sublessor's default or breach of any term
or obligation of Sublessor under the Master Lease to the extent such default or
breach is caused by Sublessor. Sublessee shall indemnify, defend and hold
Sublessor harmless from any claim, action, damage or expense incurred by
Sublessor as a result of Sublessor's default or breach of any term or obligation
of Sublessor under the Master Lease caused by Sublessee. Sublessor shall use
reasonable efforts to require Master Lessor to comply with its obligations under
the Master Lease.
5. Term. The term of this Sublease (the "Sublease Term") shall
commence on June 15, 1999 and expire on July 31, 2001, unless earlier terminated
as provided for herein. Sublessee shall have the right to renew this Sublease
for an additional one (1) year term upon the terms and conditions, including the
rental provisions, then in effect; provided, however, that Sublessee must
provide Sublessor written notice of its intention to exercise its right to an
extension no fewer than sixty (60) days prior to the expiration of the Sublease
Term. The existence of this Sublease is dependent and conditioned upon the
continued existence of the Master Lease, and in the event of the expiration,
cancellation, or termination of the Master Lease, this Sublease automatically
shall be terminated, provided, however, that (a) this provision shall not be
deemed to release Sublessor of liability if the Master Lease is canceled or
terminated due to a default by Sublessor which default did not arise from acts
or omissions of Sublessee, (b) this provision shall not be deemed to release
Sublessee of liability if the Master Lease is cancelled due to a default by
Sublessor which default arises from acts or omissions of Sublessee, and (c) if
the Master Lease terminates as a result of a default or breach by the Sublessor
or Sublessee, the defaulting party will be liable to the non-defaulting party
for the damages suffered as a result of the termination.
6. Rent. In addition to the other obligations of Sublessee set
forth herein, Sublessee shall pay Sublessor as annual rent ("Basic Rent") for
the Sublease Term the sum of Two Hundred Twenty-One Thousand One Hundred
Twenty-Two and No/100 Dollars ($221,122.00) per annum. An amount equal to
one-twelfth (1/12) of such annual rent (Eighteen Thousand Four Hundred
Twenty-Six and 83/100 Dollars ($18,426.83)) shall be payable in advance on the
first day of each month of the Sublease Term, without deduction or offset and
without prior notice or demand; provided, however, that all such rentals shall
be prorated to account for partial months during the first and/or last months
during the Sublease Term. In addition, Sublessee shall pay sixty-two and one
tenth percent (62.1%) of all taxes, assessments, utilities, insurance, common
area costs and other expenses or costs which Sublessor is hereafter required to
pay as Lessee under the Master Lease ("Additional Rent"). Installments of
Additional Rent shall be payable to Sublessor at the same times Sublessor is
required to pay such expenses under the Main Lease. For non-monthly installments
of Additional Rent, Sublessor shall provide notice of such amounts due within
three (3) business days of Sublessor's receipt of notice thereof from Master
Landlord. Sublessor shall provide Sublessee with copies of all supporting
information for Additional Rent which Sublessor receives from Master Lessor.
Sublessee's obligation for installments of Additional Rent for any period prior
to expiration or termination of this Sublease shall survive such expiration or
termination. In the event any amount included in the Additional Rent is subject
to year-end adjustment under the Master Lease, Sublessee shall be entitled to or
responsible for sixty-two and one tenth percent (62.1%) of the amount it has
overpaid or underpaid as to that component of Additional Rent. Rents shall be
paid to Sublessor at the address set forth below. The terms and provisions of
Section 4.01 and Section 4.02 of the Master Lease shall apply to Sublessee in
the event of delinquent payment of Basic Rent or Additional Rent.
7. No Enlargement of Rights. To the extent Sublessor is
granted any rights to extend or renew the term of the Master Lease or to expand
the Premises to include additional space, Sublessee shall have no right to
exercise such rights.
8. Improvement. Prior to the commencement date of this
Sublease, and subject to the provisions of the Master Lease and to the Master
Lessor's consent, if required, Sublessor shall construct a wall separating the
Subleased Premises from the remainder of the Premises. This wall shall be
located as shown on Exhibit A. In addition to construction of the wall,
Sublessor shall remove, relocate, or make such adjustments as necessary to
separate Sublessor's electrical, mechanical, telecommunications and security
systems from Sublessee's systems. Sublessor shall also install a door within an
existing window opening on the north side of the Subleased Premises if required
by code following the construction of the new demising wall. Notwithstanding any
provision in the Master Lease to the contrary, Sublessor shall not be obligated
to provide, nor shall Sublessee be entitled to the benefit of, any additional
alterations or improvements to the Subleased Premises, except as provided in
this paragraph.
9. Condition of the Subleased Premises. Sublessee has
inspected the Subleased Premises prior to executing this Sublease. Sublessee
acknowledges and agrees that, as of the date hereof:
(a) Sublessor makes no warranties concerning the
Subleased Premises;
(b) The Subleased Premises are in good condition; and
(c) The Subleased Premises are accepted "as is."
10. Warranties by Sublessor. Sublessor warrants as follows:
(a) the Improvements set forth in Paragraph 8
above shall be completed on or before the
Commencement Date, and shall be constructed
in accordance with all applicable laws,
regulations and building codes.
(b) the Master Lease has not been amended or
modified except as set forth in this
Sublease, and that any amendments or
modifications thereto shall require the
prior written consent of the Sublessee to
the extent the same shall affect the terms
and conditions of this Sublease.
(c) Sublessor is not now, and as of the
Commencement Date will not be, in default or
breach of any provisions of the Master
lease, and Sublessor has no knowledge of any
claim (alleged or otherwise) by Master
Lessor that Sublessor is in default or
breach of the Master Lease.
11. Signage. Subject to the provisions of the Master Lease and
to the Master Lessor's consent, if required, the following changes and
alterations to signage at the Building shall be made:
(a) Sublessee may, at its sole cost and expense, erect
such signage on the Subleased Premises as it desires;
(b) Sublessor shall relocate the existing building sign
facing Hills Tech Drive Road to an area of the
Building exterior corresponding to the part of the
Premises not included in the Subleased Premises; and
(c) Sublessor shall place a directional sign in the lawn
of the Building next to the flagpole facing Highway
696.
The existing Autocon sign facing Highway 696 shall be retained.
12. Parking. Sublessor shall have exclusive use of the
twenty-seven (27) parking spaces directly adjacent to the entrance to that part
of the Premises retained by Sublessor hereunder as more particularly shown on
Exhibit C, attached hereto and incorporated by this reference. Sublessee shall
be entitled to use the remainder of the parking spaces available to Sublessor
under the Master Lease.
13. Office Furniture. Sublessee may, at its option, lease the
existing steelcase furniture in the Subleased Premises, excluding file cabinets
and stand-alone work tables, for Five Thousand and No/100 Dollars ($5,000.00)
per month, payable to Sublessor at the same time as the Basic Rent hereunder. In
the event Sublessee desires to exercise this option, it must provide written
notice to Sublessor no later than thirty (30) days after the date hereof, and
the parties agree to execute a mutually acceptable office furniture lease
agreement, which shall include a mutually agreeable inventory list of such
leased items. Furniture rental shall include the 120-volt power wiring, voice
and data lines and integrated lamp fixtures currently in the steelcase office
and workstation furniture.
14. Insurance. Sublessee shall procure and maintain all
insurance policies required of the Lessee under the provisions of the Master
Lease with respect to the Subleased Premises. All such policies shall name
Master Lessor and Sublessor as additional insureds. Certificates of insurance
evidencing such policies shall be delivered to Master Lessor and Sublessor at
the commencement of the Sublease Term and, if any policy requires renewal,
Sublessee shall notify Master Lessor and Sublessor not less than ten (10) days
prior to the expiration of such policy. Sublessee's personal property in the
Subleased Premises shall be kept at Sublessee's sole risk, and neither Sublessor
nor Master Lessor shall be liable to Sublessee for any loss or damage thereto.
Sublessee hereby waives all claims and rights of recovery which it might have
against Sublessor or Master Lessor for any loss or damage to Sublessee's
personal property in the Subleased Premises.
15. Personal Property. Sublessee waives any and all of its
rights against Sublessor and Master Lessor for any damage caused by Sublessor or
Master Lessor to Sublessee's property located on the Subleased Premises, except
to the extent, as to the Sublessor, that the same arises from the negligence or
willful misconduct of Sublessor and except to the extent, as to the Master
Lessor, the same arises from the negligence or willful misconduct of Master
Lessor.
16. Notices. Any notice given under this Sublease shall be in
writing and shall be hand-delivered or mailed (by certified or registered mail,
return receipt requested, postage prepaid), addressed as follows:
Sublessee: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxxxx Xxxxx
Sublessor: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Any notice shall be deemed to have been given when hand-delivered or, if mailed,
seventy-two (72) hours after the time that such notice is deposited in the
United States mail.
17. Remedies Upon Default. Sublessor shall, if Sublessee
breaches any provision of this Sublease, be entitled to the same remedies as
those granted to the Master Lessor for Lessee's default under the Master Lease,
in addition to any remedies at law or in equity which apply to subleases.
Sublessee shall, if Sublessor breaches any provision of this Sublease, be
entitled to the same remedies as those granted to Sublessor for Lessor's default
under the Master Lease, in addition to any remedies at law or in equity which
apply to subleases.
18. Non-Assignment. Notwithstanding any provision in the
Master Lease to the contrary, Sublessee's interest in this Sublease is not
assignable, whether by operation of law or otherwise. Sublessee shall have no
right to sublet the Subleased Premises or to transfer any interest of Sublessee
therein.
19. Surrender of the Subleased Premises. Upon the expiration
of the Sublease Term, the extended term, if applicable, or the earlier
termination of the Master Lease or this Sublease, Sublessee shall surrender the
Subleased Premises in the same condition as received on the date hereof,
reasonable and normal wear and tear and damages or destruction resulting from
causes which are covered by insurance obtained in accordance with Section 11 of
the Master Lease excepted.
20. Attorneys' Fees. Should either party commence any legal
action or proceeding against the other based on this Sublease or Sublessee's
occupancy of the Subleased Premises, the prevailing party shall be entitled to
an award of reasonable attorneys' fees, in addition to any other relief to which
such party would be entitled.
21. Brokers. Each party hereby agrees that it shall pay any
commission owed to any broker with which it has entered an agreement requiring
the same. Each party shall indemnify and defend the other from and against any
claim of any broker alleging a right to a broker's commission or other
compensation through the Indemnitor or by reason of such broker having dealt
with or alleging to have dealt with the Indemnitor.
22. Master Lessor's Consent. It shall be a condition precedent
to Sublessor's and Sublessee's obligations hereunder that Master Lessor shall
execute the attached consent to this Sublease. In the event Master Lessor fails
to execute such consent by the commencement date, this Sublease shall
automatically terminate.
23. Y2000. To the knowledge of Sublessor, the Building
structure, structural components and fire protection and HVAC systems are Year
2000 ready. In the event the Building structure or structural components shall
fail as a result of the century date change or leap year, Sublessee shall
provide Sublessor with written notice of such failure. Within thirty (30) days
of its receipt of such notice, Sublessor shall correct or require the Master
Lessor to correct such failure. Sublessee shall be responsible for century date
change or leap year compliance for any business system Sublessee installs or
uses, including, but not limited to, any security system, phone system, and
utilities. Sublessee shall be entitled to an abatement in rent in the event the
Y2000 failure related to building structure, structural components or fire
protection or HVAC systems prevent Sublessee from occupying the Subleased
Premises to conduct business. Except as specifically provided in this paragraph
or otherwise stated in this Sublease, all applicable terms and conditions of the
Master Lease are incorporated and made a part of this Sublease. Sublessor will
exercise due diligence in attempting to cause Master Lessor to perform its
obligations under the Master Lease for the benefit of Sublessee.
24. Entire Agreement and Definitions. This Sublease contains
the entire agreement of the parties with respect to the subject matter hereof.
No representations, inducements, promises or agreements, oral or otherwise, not
embodied herein shall be of any force or effect; provided that, notwithstanding
the foregoing, any capitalized term or phrase not expressly defined herein shall
have the meaning set forth in the Master Lease.
IN WITNESS WHEREOF, the parties have executed this Sublease as
of the date first written above.
SUBLESSOR:
AUTOCON TECHNOLOGIES, INC.,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxxx
Printed: Xxxxx X. Xxxxxx
Title: President
SUBLESSEE:
XXXXXX XXXXX CORPORATION, a(n)
___________________ corporation
By: /s/ Xxxx Xxxxxxx
Printed: Xxxx Xxxxxxx
Title: President
The undersigned, as Lessor under the Master Lease, hereby
consents to Sublessor's sublease of the Subleased Premises to Sublessee upon the
terms and conditions set forth above. Sublessor shall continue to remain
primarily liable to Master Lessor under the terms of the Master Lease; and no
provision of the Sublease shall have any effect upon any of Sublessor's
obligations to Master Lessor under the terms of the Master Lease.
HILLMONT PROPERTIES,
a Michigan co-partnership
By: XXXXXXX INVESTMENT ASSOCIATES
LIMITED PARTNERSHIP, its
partner
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx, Trustee of the
Xxxx Xxxxxxx Revocable Trust,
dated August 21, 1978,
Its General Partner
