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EXHIBIT 10.5
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LEASE
Between
WRC PROPERTIES, INC.,
AS Landlord
And
SYNTEL, INC.,
as Tenant
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TABLE OF CONTENTS
SECTION 1. BASIC LEASE PROVISIONS.......................................... 1
SECTION 2. THE PREMISES.................................................... 2
SECTION 3. THE TERM........................................................ 2
SECTION 4. THE BASE RENT................................................... 3
SECTION 5. LATE CHARGES AND INTEREST....................................... 3
SECTION 6. OPERATING EXPENSES, UTILITIES, AND TAXES........................ 3
SECTION 7. USE OF PREMISES................................................. 6
SECTION 8. INSURANCE....................................................... 8
SECTION 9. DAMAGE BY FIRE OR OTHER CASUALTY................................ 9
SECTION 10. REPAIRS, RENOVATIONS AND ALTERATIONS.......................... 10
SECTION 11. XXXXX......................................................... 11
SECTION 12. EMINENT DOMAIN................................................ 11
SECTION 13. ASSIGNMENT OR SUBLETTING...................................... 12
SECTION 14. INSPECTION OF PREMISES........................................ 13
SECTION 15. FIXTURES AND EQUIPMENT........................................ 13
SECTION 16. PARKING AREAS................................................. 13
SECTION 17. NOTICE OR DEMANDS............................................. 14
SECTION 18. BREACH; INSOLVENCY; RE-ENTRY.................................. 14
SECTION 19. SURRENDER OF PREMISES ON TERMINATION.......................... 16
SECTION 20. PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT............ 16
SECTION 21. SUBORDINATION; ESTOPPEL CERTIFICATES.......................... 16
SECTION 22. QUIET ENJOYMENT............................................... 17
SECTION 23. HOLDING OVER.................................................. 17
SECTION 24. REMEDIES NOT EXCLUSIVE; WAIVER................................ 17
SECTION 25. WAIVER OF SUBROGATION......................................... 18
SECTION 26. RIGHT TO SHOW PREMISES........................................ 18
SECTION 27. INDEMNIFICATION............................................... 18
SECTION 28. DEFINITION OF LANDLORD; LANDLORD'S LIABILITY.................. 19
SECTION 29. SECURITY DEPOSIT AND SECURITY INTEREST........................ 19
SECTION 30. RULES AND REGULATIONS......................................... 20
SECTION 31. SIGNS AND ADVERTISING......................................... 20
SECTION 32. GENERAL....................................................... 20
EXHIBIT A SPACE PLAN...................................................... 23
EXHIBIT B RULES AND REGULATIONS OF THE PROJECT............................ 24
EXHIBIT C DAILY JANITORIAL SERVICE........................................ 27
EXHIBIT D SPECIAL PROVISIONS.............................................. 28
D1 EXCESS TENANT IMPROVEMENT COST. ..................................... 28
D2 MOVING ALLOWANCE. ................................................... 28
D3 OPTION TERM.......................................................... 28
D4 TENANT AUDIT RIGHT. ................................................. 28
D5 TENANT'S RIGHT TO CURE. ............................................. 28
D6 NON-DISTURBANCE. .................................................... 29
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LEASE
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THIS LEASE is made entered into as of August 22, 1996, by and between
WRC Properties, Inc. (the "Landlord"), a Deleware Corporation having its
principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Tenant
named below who agree as follows:
SECTION 1.
BASIC LEASE PROVISIONS
1.01 The following basic lease provisions are an integral part of
this Lease and are referred to in other Sections of this Lease.
(a) Tenant's name and jurisdiction of formation:
SYNTEL, INC., a Michigan Corporation
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Tenant Social Security/Taxpayer Indentification Number: 00-0000000
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Tenant Standard Industrial Classification (SIC) Code Number: 7371
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(b) Tenant's Address: 0000 Xxxxxx Xxxx
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Suite 301
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Xxxx, Xxxxxxxx 00000
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Attn: Xxxxxx Xxxxx, Esq.
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(c) Manager's Name Apex Management, Inc.
and Address: 00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
(d) Project Name: Xxxx Officentre A - D
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Building Name: Xxxx Officentre D
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Building Address: 2800 Livernois
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Xxxx, Xxxxxxxx 00000
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(e) Premises: Floor: 4th Floor
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Suite Number: 400
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Square Feet: 23,328 usable / 24,900 rentable square feet
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(f) Term:
Scheduled Occupancy Date: December 1, 1996
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Scheduled Expiration Date of Initial Term: November 30, 2001
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Initial Term: Five (5) years
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(g) Base Rent:
Monthly $ 32,681.25
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Annual $ 392,175.00
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Aggregate $1,960,875.00
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(h) Tenant's Proportionate Share:
24,900 Rentable square feet in the Premises diveded by
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140,590 Rentable square feet in the Building = 17.711%
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(i) Number of Exclusive Parking Spaces: None at an initial increase of additional rent of $ -0-
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(j) Security Deposit: None
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(k) Tenant Improvement Allowance: See Exhibit D
(l) Base Year: 1997
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(m) Permitted Use: General Office and training of staff personnel
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SECTION 2.
THE PREMISES
2.01 Landlord, in consideration of the rents to be paid and the
covenants and agreements to be performed by Tenant, hereby leases to Tenant the
premises set forth in Section 1.01(e) (the "Premises") in the building(s) (the
"Building") described in Section 1.01 (d), together with the right to use the
parking and common areas and facilities which may be furnished from time to
time by Landlord (collectively the "Common Areas"), including, without
limitation, all common elevators, hallways and stairwells located within the
Building, and all common parking facilities, driveways and sidewalks, in common
with Landlord and with the tenants and occupants of the Project, their agents,
employees, customers, clients and invitees. Tenant agrees that the Premises
and the Building shall be deemed to include the number of rentable square feet
set forth in Section 1.01 (h) and in no event shall Tenant have the right to
challenge, demand, request or receive any change in the base rent or other sums
due hereunder as a result of any claimed or actual error or omission in the
rentable or usable square footage of the Premises, the Building or the Project.
Landlord reserves the right at any time and from time to time to make
alterations or additions to the Building or the Common Areas, and to demolish
improvements on and to build additional improvements on the land surrounding
the Building and to add or change the name of the Building from time to time,
in its sole discretion without the consent of Tenant and the same shall not be
construed as a breach of this Lease. The Building, the other buildings listed
in Section 1.01(d), the Common Areas and the land surrounding the Building and
the Common Areas are hereinafter collectively referred to as the "Project".
2.02 Landlord agrees to construct the improvements to the Premises
(the "Tenant Improvements") in accordance with the space plan(s) (as it may be
amended by approved change orders, the "Plans"), attached as Exhibit "A". All
material changes from the Plans which Landlord determines are necessary during
construction shall be submitted to Tenant for Tenant's approval or rejection.
If Tenant fails to notify Landlord of Tenant's approval or rejection of such
changes within five (5) days of receipt thereof, Tenant shall be conclusively
deemed to have approved such changes. Landlord's approval of the Plans shall
not constitute a representation, warranty or agreement (and Landlord shall have
no responsibility or liability for) the completeness or design sufficiency of
the Plans or the Tenant Improvements, or the compliance of the Plans or Tenant
Improvements with any laws, rules or regulations of any governmental or other
authority.
2.03 The provisions of Exhibit D, special provisions, shall govern
the cost of constructing Tenant Improvements.
2.04 Landlord intends to construct the Tenant Improvements and
deliver the Premises "ready for occupancy" (as defined below) to Tenant on the
Scheduled Occupancy Date set forth in Paragraph 1.01(f). The Premises will be
conclusively deemed "ready for occupancy" on the earlier to occur of when: (i)
the work to be done under this Paragraph has been substantially completed and
after the issuance of a conditional or temporary certificate of occupancy for
the Premises by the appropriate government agency within whose jurisdiction the
Building is located, or (ii) when Tenant takes possession of the Premises. The
Premises will not be considered unready or incomplete if only minor or
insubstantial details of construction, decoration or mechanical adjustments
remain to be done within the Premises or Common Areas of the Building, or if
only landscaping or exterior trim remains to be done outside the Premises, or
if the delay in the availability of the Premises for Tenant's occupancy is
caused in whole or in material part by Tenant. By occupying the premises,
Tenant will be deemed to have accepted the Premises and to have acknowledged
that they are in the condition called for in this Lease, subject only to "punch
list" items (as the term "punch list" is customarily used in the construction
industry in the area where the Project is located) identified by Tenant by
written notice delivered to Landlord within thirty (30) days after the
date Landlord tenders possession of the Premises to Tenant. If in good faith
Landlord is delayed or hindered in construction by any labor dispute, strike,
lockout, fire, unavailability of material, severe weather, acts of God,
restrictive governmental laws or regulations, riots, insurrection, war or other
casualty or events of a similar nature beyond its reasonable control ("Force
Majeure"), the date for the delivery of the Premises to Tenant "ready for
occupancy" shall be extended for the period of delay caused by the Force
Majeure. If Landlord is delayed or hindered in construction as a result of
change orders or other requests by, or acts of, Tenant ("Tenant Delay") the
date for the delivery of the Premises to Tenant "ready for occupancy" shall be
accelerated by the number of days of delay caused by Tenant Delay. The
Scheduled Occupancy Date as extended or accelerated as a result of the
occurrence of a Force Majeure or Tenant Delay or with the consent of Tenant, is
herein referred to as the Occupancy Date.
SECTION 3.
THE TERM
3.01 The initial term of this Lease (the "Initial Term or "Term")
will commence (the "Commencement Date") on the earlier of: (i) the date Tenant
takes possession of the Premises; or (II) the Occupancy Date; or (iii) the date
the Occupancy Date would have occurred in the absence of Tenant
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Delay. Unless sooner terminated or extended in accordance with the
terms hereof, the Lease will terminate the number of Lease Years and Months set
forth in Paragraph 1.01(f) after the Commencement Date. If the Commencement
Date is other than the first day of a calendar month, the first Lease Year
shall begin on the first day of the first full calendar month following the
Commencement Date. Upon request by Landlord, Tenant will execute a written
instrument confirming the Commencement Date and the expiration date of the
Initial Term.
SECTION 4.
THE BASE RENT
4.01 From and after the Commencement Date, Tenant agrees to pay to
Landlord, as minimum net rental for the Initial Term and Option Terms of this
Lease, the sum(s) set forth In Paragraph 1.01(g) (the "Base Rent"). The term
"Lease Year" as used herein shall be defined to mean a period of twelve (12)
consecutive calendar months. The first Lease Year shall begin on the date
determined in accordance with Section 3.01. Each succeeding Lease Year shall
commence on the anniversary date of the first Lease Year.
4.02 Base Rent and other sums due Landlord hereunder shall be paid
by Tenant to Landlord in equal monthly installments (except as otherwise
provided herein), in advance, without demand and without any setoffs or
deductions whatsoever, except as otherwise provided in this Lease, on the first
day of each and every calendar month (the "Rent Day") during the Initial Term
and Option Terms, if any, at the office of Manager as set forth in Section 1.01
(c), or at such other place as Landlord from time to time may designate in
writing. In the event the Commencement Date is other than the first day of a
calendar month, the Base Rent for the partial first calendar month of the
Initial Term will be prorated on a daily basis based on the number of days in
the calendar month and will be paid in addition to the rent provided in
Paragraph 4.01 above. Base Rent for such partial calendar month and for the
first full calendar month of the first Lease Year shall be paid upon the
execution of this Lease by Tenant.
SECTION 5.
LATE CHARGES AND INTEREST
5.01 Any rent or other sums payable by Tenant to Landlord under this
Lease which are not paid within five (5) days after they are due will be
subject to a late charge of ten (10%) percent of the amount due. Such late
charges will be due and payable as additional rent on or before the next Rent
Day.
5.02 Any rent, late charges or other sums payable by Tenant to
Landlord under this Lease not paid within ten (10) days after the same are due
will bear interest at a per annum rate equal to the lower of: (i) City Bank
Prime Rate plus five percent (5%) per annum, or (ii) the highest rate permitted
by law. Such interest will be due and payable as additional rent on or before
the next Rent Day, and will accrue from the date that such rent, late charges
or other sums are payable under the provisions of this Lease until actually
paid by Tenant.
5.03 Any default in the payment of rent, late charges or other sums
will not be considered cured unless and until the late charges and interest due
hereunder are paid by Tenant to Landlord. If Tenant defaults in paying such
late charges and/or interest, Landlord will have the same remedies as Landlord
would have if Tenant had defaulted in the payment of rent. The obligation
hereunder to pay late charges and interest will exist in addition to, and not
in the place of, the other default provisions of this Lease.
SECTION 6.
OPERATING EXPENSES, UTILITIES, AND TAXES
6.01 In the event that Operating Expenses for the Project, in any
calendar year, exceed the Operating Expenses for the Base Year (as defined in
Paragraph 1.01 (I)), Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share (as defined in Paragraph 1.01(h)) of any such excess.
Tenant's obligations hereunder shall be pro-rated for any calendar year in
which Tenant is obligated to pay rent for only a portion thereof. For the
purposes of this Section, the term "Operating Expenses" shall mean and include
those expenses paid or incurred by Landlord for: maintaining, operating,
owning, and repairing the Project, providing electricity, steam, water, sewer,
fuel, heating, lighting, air conditioning, window cleaning, janitorial service,
personal property taxes, insurance (including, but not limited to, fire,
extended coverage, liability, workers compensation, elevator, boiler and
machinery, war risk, or any other insurance carried in good faith by Landlord
and applicable to the Project); painting, uniforms, management fees, supplies,
sundries, sales, or use taxes on supplies or services; wages and salaries of
all persons engaged in the operation, maintenance and repair of the Project,
and so-called fringe benefits, including social security taxes, unemployment
insurance taxes, providing coverage for disability benefits, pension,
hospitalization, welfare or retirement plans, or any other similar or like
expenses
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incurred under the provisions of any collective bargaining agreement, or any
other similar or like expenses which Landlord pays or incurs to provide
benefits for employees so engaged in the operation, maintenance and repair of
the Project; the charges of any independent contractor who, under contract with
Landlord or its representatives, does any of the work of operating, maintaining
or repairing the Project; capital expenditures required under any governmental
law or regulation; legal and accounting expenses including, but not limited to,
such expenses as relate to seeking or obtaining reductions in, and refunds of,
real estate taxes; or any other expenses or charges, whether or not
hereinbefore mentioned, which in accordance with generally accepted accounting
and management principles would be considered as an expense of maintaining,
operating, owning or repairing the Project.
6.02 The term "Operating Expenses" shall not include the following items:
(a) costs of a capital nature under generally accepted accounting
principles consistently applied, including, but not limited to: (1) rentals and
other related expenses in leasing capital items, and (2) replacements of
capital items except capital expenditures not required to be made under this
Lease by Landlord and made at the specific request of Tenant.
(b) resale costs incurred by Landlord with respect to goods and/or
services to the extent that is entitled to reimbursement for such costs by
others:
(c) depreciation of the Building and equipment;
(d) amortization payments on mortgages or deeds of trust and any
ground lease rental;
(e) expenses of leasing other premises within the Building
(including without limitation attorneys' fees, accounting fees and real
estate brokerage commissions);
(f) advertising, promotions and public relations attributable to
Landlord's efforts to increase or maintain the occupancy rate in the Building;
(g) the cost of tenant improvements incurred in leasing other
premises within the Building;
(h) expenses performed as a special service for another tenant that
are not standard too all tenants; and
(i) any fines or penalties incurred because Landlord violated any
governmental rule or authority.
6.03 If the Project is not fully rented during all or a portion of
any year, then Landlord shall may elect to make an appropriate adjustment of
the Operating Expenses and Real Estate Taxes (as defined below) for such year
and for the Base Year employing sound accounting and management principles, to
determine the amount of Operating Expenses and Real Estate Taxes that would
have been paid or incurred by Landlord had the Project been fully rented; and
the amount so determined shall be deemed to have been the amount of Operating
Expenses and Real Estate Taxes for such year. If any expenses relating to the
Project, though paid in one year, relate to more than one calendar year, at the
option of Landlord such expense will proportionately allocated among such
related calendar years. In addition, in the event any Operating Expense or
Real Estate Tax applies to only some portion of the Project or is partially
allocable to other buildings or projects, Landlord shall allocate such
expense among such buildings and projects in accordance with sound accounting
and management principles to determine the amount of Operating Expenses and
Real Estate Taxes for the Project and the Building.
6.04 In the event that Real Estate Taxes (as hereinafter defined) for
the Project, In any calendar year, exceed the Real Estate Taxes for the Base
Year, Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate
Share of any such excess over and above the Base Real Estate Taxes (as
hereinafter defined). The "Base Real Estate Taxes" shall be the Real Estate
Taxes shown on the bills for which the "due date" occurs in the Base Year.
"Real Estate Taxes" as used herein shall mean real estate taxes, assessments
(general, special, ordinary or extraordinary) sewer rents, rates and charges,
taxes based upon the receipt of rent, and any other federal, state or local
charge (general, special, ordinary or extraordinary) which may now or hereafter
be imposed, levied or assessed against the Project or any part thereof, or on
any building or improvements at any time situated thereon. In the event the
State of Michigan or any political subdivision thereof having taxing authority
shall modify, repeal or abolish the ad valorem tax on real property, or impose
a tax or assessment of any kind or nature upon, against, or with respect to the
Project or the rents payable by Tenant or on the income derived from the
Project, or with respect to Landlord's ownership interest in the Project, which
tax is assessed or imposed by way of substitution for or in addition to all or
any part of the Real Estate Taxes, then such tax or assessment shall be
included within the definitions of "Real Estate Taxes"; provided, however,
nothing herein contained shall impose an obligation on Tenant to pay the
general income tax or
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Michigan Single Business Tax liabilities of Landlord, except to the
extent such a tax is being used to fund governmental functions presently or
previously funded by ad valorem taxes on real properly.
6.05 At any time and from time to time, Landlord may reasonably
estimate the amount by which current Real Estate Taxes and Operating Expenses
are expected to exceed the Real Estate Taxes and Operating Expenses for the
Base Year (the "Estimated Excess Expenses"). Tenant shall pay its
Proportionate Share of the Estimated Excess Expenses by depositing with
Landlord on each Rent Day during the term hereof an amount equal to one-twelfth
(1/12) of its annual share of the Estimated Excess Expenses. Landlord shall
deliver to Tenant, within a reasonable period of time after the close of each
calendar year, an annual statement indicating the amount by which the Real
Estate Taxes and Operating Expenses actually incurred in that calendar year
exceed the Real Estate Taxes and Operating Expenses for the Base Year (the
"Actual Excess Expenses"). In the event that the Actual Excess Expenses exceed
the Estimated Excess Expenses, Tenant shall pay Tenant's Proportionate Share of
the difference to Landlord within fifteen (15) days of delivery of the annual
statement. In the event that Estimated Excess Expenses exceed Actual Excess
Expenses, then at Landlord's option Tenant shall either be reimbursed to the
extent that Tenant's payments toward Tenant's share of the Estimated Excess
Expenses exceed Tenant's Proportionate Share of the Actual Excess Expenses, or
Tenant shall be granted a corresponding credit against the Base Rent or other
sums next due Landlord hereunder.
6.06 Tenant shall be responsible for and pay before delinquent all
municipal, county, and state taxes assessed, levied or imposed during the term
of this Lease, and all extensions thereof, upon the leasehold interest and all
furniture, fixtures, machinery, equipment, apparatus, systems and all other
personal properly of any kind whatsoever located at, placed in or used in
connection with the Premises.
6.07 Landlord agrees with Tenant that Landlord will furnish heat
and air conditioning during normal business hours (8:00 a.m. to 6:00 p.m.
Monday through Friday and Saturday 9:00 a.m. to 2:00 p.m., excluding Building
holidays), usual and customary janitorial services, as set forth in Exhibit
"C", and provide water and sewer service to the Premises and hot and cold water
for ordinary lavatory purposes in the common area restrooms. However, if
Tenant uses or consumes water for any other purpose or in unusual quantities
(of which fact Landlord shall be the sole judge) Landlord may install a water
meter at Tenant's expense which Tenant shall thereafter maintain at Tenant's
expense in good working order and repair, to register such water consumption.
Tenant shall pay for the quantity of water shown on said meter, together with
the sewer rents, debt service and other charges made by the local utilities for
water and sewer service, as additional rent, at the secondary rate per gallon
(general service rate) established by the applicable governmental authority or
the applicable utility company providing the water. Whenever machines or
equipment which generate heat are used in the Premises which affect the
temperature otherwise maintained by the air-conditioning system, Landlord
reserves the right to install supplementary air-conditioning equipment in the
Premises, and the cost thereof, and the expense of operation and maintenance
thereof, shall be paid by Tenant to Landlord. Although Landlord will provide
air-conditioning and/or heat upon the prior request of Tenant in accordance
with Building practices for hours other than regular business hours, Tenant
will pay Landlord's charges for providing such service. Said charges shall
include a cost equal to the cost to operate the equipment for Tenant's expanded
business hours and days, and Landlord's maintenance, equipment amortization and
other appropriate charges which Landlord determines are attributable to
operating the equipment for periods in excess of the normal business hours
described above.
6.08 Tenant shall pay all charges made against the Premises for
electricity used upon or furnished to the Premises as and when due during the
continuance of this Lease and electricity shall be separately metered for the
Premises. Whether or not metered, Tenant shall pay for the electricity
at the secondary rate (general service rate) established by the applicable
governmental authority or the applicable utility company providing the
electricity. Tenant shall also pay for fluorescent or other electric light
bulbs or tubes and electric equipment used in the leased premises.
6.09 Notwithstanding anything to the contrary contained in this
Section 6, in the event that the Operating Expenses excluding insurance and all
utilities (the "Adjusted Operating Expenses"), in any calendar year of the
Initial Term, exceed the Operating Expenses excluding insurance and all
utilities for the Base Year (the "Adjusted Base Year Operating Expenses"),
Tenant shall pay Landlord Tenant's Proportionate Share of such excess (the
"Adjusted Operating Expense Escalation") which shall in no event exceed the
escalation cap (the "Escalation Cap"). The Escalation Cap shall be based on
the increase in the cost of living Plus ten percent (10%) in accordance with
the following formula:.
(i) The increase, if any, in the cost of living shall be determined,
using as a basis for computation the Revised Consumer's Price Index for
Urban Wage Earners and Clerical Workers for the Detroit Area, published by the
Bureau of Labor Statistics of the United States Department of Labor (1982-1984
equals 100) (the "Index").
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(ii) The Index in the column entitled "All Items" for the first
calendar month of the first calendar year of the Initial Term of this Lease (the
"Base Lease Year") shall be the base index (the Base Index") and the
corresponding Index for the first month in each succeeding calendar year shall
be the current index (the "Current Index").
(iii) The annual increase in the cost of living, if any, shall be
determined by annually dividing the Current Index by the Base Index or the
previous year's Current Index in succeeding years.
(iv) Annually the quotient derived by the computation provided in
subsection (iii) plus ten percent (10%) shall be multiplied by Adjusted
Operating Expenses Escalation for the preceding calendar year, and such
computation shall be the Escalation Cap, provided, however, in no event shall
the adjustment cause the Base Rent to be reduced.
(v) Appropriate adjustments shall be made in the event there is a
published amendment to the Index figures upon which the above computation is
based. If the publication of the Index is discontinued, Landlord and Tenant
shall accept comparable statistics on the cost of living for the nearest
metropolitan area to the location of the Premises, as computed and published by
an agency of the United States or a responsible financial periodical or
recognized authority selected by both Landlord and Tenant.
SECTION 7.
USE OF PREMISES
7.01 Tenant shall occupy and use the Premises during the Term for the
purposes set forth in Section 1.01(m) only, and for no other purpose without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Tenant agrees that it will not use or permit any person to
use the Premises or any part thereof for any use or purpose in violation of the
laws of the United States, the laws, ordinances or other regulations of the
State or municipality in which the Premises are located, or of any other lawful
authorities, or any building and use restrictions, now or hereafter affecting
the Premises or any part thereof.
7.02 Tenant will not do or permit any act or thing to be done in or to
the Premises or the Project which will invalidate or be in conflict with any
terms or conditions required to be contained in any property or casualty
insurance policy authorized to be issued in the State of Michigan or any term or
condition of the Insurance Services Office's (ISO) Commercial Property Insurance
and/or Commercial General Liability Insurance Conditions or any different or
additional terms and conditions of any insurance policy in effect on the
Premises or the Project from time to time (collectively the *Building
Insurance"), Nor shall Tenant do nor permit any other act or thing to be done in
or to the Premises or the Project which shall or might subject Landlord to any
liability or responsibility to any person or for property damage, nor shall
Tenant use the Premises or keep anything on or in the Project except as now or
hereafter permitted by the fire regulations, the fire department or zoning,
health, safety, land use or other regulations. Tenant, at Tenant's sole cost
and expense, shall comply with all requirements and recommendations set forth by
any property or casualty insurer or reinsurer providing coverage for the
Premises or the Project or by any person or entity engaged by Landlord or
Manager to perform any loss control, analysis or assessment for the Premises or
the Project. Tenant shall not do or permit anything to be done in or upon the
Premises or the Project or bring or keep anything therein or use the Premises or
the Project in a manner which increases the rate of premium for any Building
insurance or any property or equipment located therein over the rate in effect
at the commencement of the Term of this Lease. In addition, Tenant agrees to
pay Landlord the amount of any increase in premiums for insurance which may be
charged during the term of this Lease resulting from the act or omissions of
Tenant or the character or nature of its occupancy or use of the Project or the
Premises, whether or not Landlord has consented to the same. Any scheduled or
"make-up" of any insurance rate for the Premises, the Building or the Project
issued by any insurance company establishing insurance premium rates for the
Premises, Building or the Project shall be prima facie evidence of the facts
therein stated and of the several items and charges in the insurance premium
rates then applicable to the Premises, the Building or the Project. Tenant shall
give Landlord notice promptly after Tenant learns of any accident, emergency, or
occurrence for which Landlord is or may be liable, or any fire or other casualty
or damage or defects to the Premises, the Building or the Project which Landlord
is or may be responsible or which constitutes the property of Landlord.
7.03 Tenant shall not perform acts or carry on any activities or engage
in any practices which may injure the Premises or any portion of the Project or
which may be a nuisance or menace to other persons on or in the Project. Tenant
shall pay all costs, expenses, fines, penalties, or damages which may be imposed
upon Landlord by reason of Tenant's failure to comply with the provisions of
this Section.
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7.04 Tenant will not place any load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe the weight
and position of all safes, business machines and mechanical equipment. Such
items shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance. If at any time any windows of the Premises are temporarily or
permanently closed, darkened or covered for any reason whatsoever, including
Landlord's own acts, Landlord shall not be liable for any damage Tenant may
sustain thereby, and the same shall not be considered a default under this Lease
and Tenant shall not be entitled to any compensation therefore nor abatement of
any Base Rent or any other sums due hereunder, nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction, construction, actual
or otherwise.
7.05 During the term hereof, and consistent with janitorial services
provided by Landlord, Tenant will keep the Premises in a clean and wholesome
condition, will use the same in a careful and proper manner, and generally will
comply with all laws, ordinances, orders and regulations affecting the Premises
and the cleanliness, safety, occupancy and use thereof. Tenant will not commit
waste in or on the Premises, and will use the Premises in accordance with the
Rules and Regulations of the Project, as set forth in Exhibit B, attached hereto
and made a part hereof.
7.06 As between Landlord and Tenant, Tenant shall be responsible for any
alterations, changes or improvements to the Premises which may be necessary in
order for the Premises and Tenant's use thereof to be in compliance with the
Americans with Disabilities Act of 1990 and its state and local counterparts or
equivalents (the "Disabilities Act") during the term of this Lease.
7.07 For the purposes of this Lease, the term "Hazardous Materials"
shall mean, collectively, (i) any biological materials, chemicals, materials,
substances or wastes which are now or hereafter become defined as or included in
the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", or words of similar import, under any
applicable Environmental Law (as defined below) and (ii) any petroleum or
petroleum products and asbestos in any form that is or could become friable.
7.08 For the purposes of this Lease, the term "Environmental Laws" shall
mean all federal, state, and local laws, statutes, ordinances, regulations,
criteria, guidelines and rules of common law now or hereafter in effect, and in
each case as amended, and any judicial or administrative interpretation thereof,
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases or Hazardous Materials or otherwise
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials. Environmental Laws
include but are not limited to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended; the Resource Conservation
and Recovery Act, as amended; the Clean Air Act, as amended; the Clean Water
Act, as amended; and their state and local counterparts or equivalents.
7.09 Tenant shall not (either with or without negligence) cause or
permit the escape, disposal or release of any Hazardous Materials. Tenant shall
not allow the storage or use of such Hazardous Materials on the Premises or the
Project in any manner prohibited by the Environmental Laws or by the
highest standards prevailing the industry for the storage and use of
such Hazardous Materials, nor allow to be brought into the Premises or the
Project any such Hazardous Materials except to use in the ordinary course of
Tenant's business, and then only after written notice is given to Landlord of
the identity of such Hazardous Materials and Landlord consents in writing to the
use of such materials. Landlord shall have the right at any times during the
term of this Lease to perform assessments of the environmental condition of the
Premises and of Tenant's compliance with this Section 7.09. In
connection with any such assessment, Landlord shall have the right to enter and
inspect the Premises and perform tests (including physically invasive tests),
provided such tests are performed in a manner that minimizes disruption to
Tenant. Tenant will cooperate with Landlord in connection with any such
assessment by, among other things, responding to inquires and providing relevant
documentation and records. Tenant will accept custody and arrange for the
disposal of any Hazardous Materials that are required to be disposed of as a
result of those tests, provided that those Hazardous Materials were disposed of
or released by Tenant or otherwise resulted from Tenant's operations. Landlord
shall have no liability or responsibility to Tenant with respect to any such
assessment or test or with respect to results of any such assessment or test.
If any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous Materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as additional charges if such requirement applies to the Premises or Tenant's
activities on the Project and it is determined that such Hazardous Materials
were released by Tenant, Tenant's servants, employees, agents, clients,
customers. licensees, invitees, visitors, and contractors in violation of this
Section 7.09 and are the reason for such testing. If any inspection indicates
any (i) non-compliance with any Environmental Law or the highest standards
prevailing in the industry for the storage and use of Hazardous Materials; (ii)
damage; or (iii) contamination, Tenant shall, at its cost and expense, remedy
such non-compliance, damage or
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contamination. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials on the
Premises. Irrespective of whether Landlord elects to inspect the Premises, if
Hazardous Materials are found on or about the Premises, Landlord shall have no
responsibility, liability or obligation whatsoever with respect to the
existence, removal or transportation of the Hazardous Material or the
restoration and remediation of the Premises. Further, Landlord shall have the
right to require Tenant to immediately terminate the conduct of any activity in
violation of the Environmental Law, the highest standards prevailing in the
industry for the storage and use of Hazardous Materials or, if none exist, the
standards determined by Landlord.
7.10 Tenant further agrees that it will not, by either action or
inaction, invite or otherwise cause agents or representatives of any federal,
state or local governmental agency to enter onto the Premises or the Project
and/or investigate the Premises or the Project. Tenant may invite agents or
representatives of any federal, state or local governmental agency to enter onto
the Premises or the Project if doing so within the normal course of Tenant
business. This agreement does not allow Tenant to obstruct any such entry or
investigation and the mere fact of a regulatory agency entry or investigation
without Tenant's involvement either by action or inaction shall not be deemed a
breach of this lease. Nothing set forth in this paragraph shall prohibit Tenant
from reporting any fact or condition which Tenant has been advised it has a
legal obligation to report provided Tenant first notifies Landlord of such fact
or condition and Tenant's intention to report the fact or condition.
7.11 Tenant shall indemnify, hold harmless and defend Landlord, its
licensees, servants, agents, employees and contractors for any loss, damage,
claim, liability or expense (including reasonable attorney's fees) arising out
of any violation of any Environmental Law(s) or the Disabilities Act which
exists or occurs after the date hereof. Tenant shall notify Landlord as soon as
possible after Tenant learns of the existence of or potential for any such loss,
damage, claim, liability or expense arising out of any violation or suspected
violation of any Environmental Law(s) or the Disabilities Act. In the event
Tenant refuses to address such violation or suspected violation within five (5)
days of such notice or another notice from Landlord, and, thereafter, to
investigate such violation or suspected violation, and promptly commence and
diligently pursue any action required to address such violation or suspected
violation, Landlord shall have the right, in addition to every other right and
remedy it may have hereunder, to terminate this Lease by giving ten (10) days
prior written notice thereof to Tenant, and upon the expiration of such ten (10)
days, this Lease shall terminate. The covenants set forth herein shall survive
the expiration or earlier termination of this Lease.
SECTION 8.
INSURANCE
8.01 Commencing on the Commencement Date, Tenant shall, during the Term
of this Lease, maintain in full force and effect policies of commercial general
liability insurance (including premises, operation, bodily injury, personal
injury, death, independent contractors, products and completed operations, broad
form contractual liability and broad form property damage coverage), in a
combined single limit amount of not less than Two Million Dollars ($2,000,000),
per occurrence (exclusive of defense costs), against all claims, demands or
actions with respect to damage, injury or death made by or on behalf of any
person or entity, arising from or relating to the conduct and operation of
Tenant's business in, on, or about the Premises (which shall Include Tenant's
signs, if any), or arising from or related to any act or omission of Tenant or
of Tenant's principals, officers, agents, contractors, servants, employees,
licensees and invitees. Whenever, in Landlord's reasonable judgment, good
business practice and changing conditions indicate a need for additional
amounts or different types of insurance coverage, Tenant shall, within ten (10)
days after Landlord's request, obtain such insurance coverage, at Tenant's sole
cost and expense.
8.02 Commencing on the Commencement Date, Tenant shall obtain and
maintain policies of workers' compensation and employers' liability insurance
which shall provide for statutory workers' compensation benefits and employers'
liability limits of not less than that required by law.
8.03 Commencing on the Commencement Date, Tenant shall obtain and
maintain Insurance protecting and indemnifying Tenant against any and all damage
to or loss of any personal property, fixtures, leasehold improvements,
alterations, decorations, installations, repairs, additions, replacements or
other physical changes in or about the Premises, including but not limited to
the Tenant Improvements, and all claims and liabilities relating thereto, for
their full replacement value without deduction or depreciation. In addition, if
Tenant shall install or maintain one or more pressure vessels to serve Tenant's
operations on the Premises, Tenant shall, at Tenant's sole cost and expense,
obtain, maintain and keep in full force and effect appropriate boiler or other
insurance coverage therefore in an amount not less than One Million and No/100
Dollars ($1,000,000.00) (it being understood and agreed, however, that the
foregoing shall not be deemed a consent by Landlord to the installation and/or
maintenance of any such pressure vessels in the Premises, which installation
and/or maintenance shall at all times be subject to the prior written consent of
Landlord). All insurance policies required pursuant to this Paragraph 8.03
shall be written on a so-called "all risk" form and shall be carried in
sufficient
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amount so as to avoid the imposition of any co-insurance penalty in the event of
a loss. Such Insurance shall provide the broadest coverage then available,
including coverage for loss of profits or business income or reimbursement for
extra expense incurred as the result of damage or destruction to all or a part
of the Premises.
8.04 All insurance policies which Tenant shall be required to maintain
pursuant to this Section 8 shall, in addition to any of the foregoing: be
written by insurers which have an A.M. Best & Company rating of "A", Class "X",
or better and who are authorized to write such business in the State of Michigan
and are otherwise satisfactory to Landlord; be written as "occurrence" policy;
be written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord or any ground or building lessor may carry; name
Landlord, the Manager, and Landlord's mortgagee and ground or building lessor,
if any, as additional insureds; be endorsed to provide that they shall not be
cancelled, failed to be renewed, diminished or materially altered for any reason
except on thirty (30) days prior written notice to Landlord and the other
additional insureds; and provide coverage to Landlord, Landlord's property
management company, and Landlord's mortgagee whether or not the event or
occurrence giving rise to the claim is alleged to have been caused in whole or
in part by the acts or negligence of Landlord, Landlord's property management
company, or Landlord's mortgagee. At Landlord's option, either the original
policies or certified duplicate copies of the original policies will be
delivered by Tenant to Landlord at least ten (10) days prior to their effective
date thereof, together with receipts evidencing payment of the premiums
therefor. Tenant will deliver certificates of renewal for such policies to
Landlord not less than thirty (30) days prior to the expiration dates thereof.
No such policy shall contain a deductible or self insured retention greater than
$5,000.00 per claim, nor shall any such policy be the subject of an
indemnification or other arrangement by which any insured is obligated to repay
any Insurer with respect to loss occurring on the Premises.
8.05 If Tenant fails to provide all or any of the insurance required by
this Section 8 or subsequently falls to maintain such insurance in accordance
with the requirements hereof, then after giving five (5) business day
written notice to Tenant, Landlord may (but will not be required to) procure or
renew such insurance to protect its own interests only, and any amounts paid by
Landlord for such insurance will be additional rental due and payable on or
before the next Rent Day, together with late charges and interest as provided in
Section 5 hereof. Landlord and Tenant agree that no insurance acquired by
Landlord pursuant hereto shall cover any interest or liability of Tenant and any
procurement by Landlord of any such insurance or the payment of any such
premiums shall not be deemed to waive or release the default of Tenant with
respect thereto.
SECTION 9.
DAMAGE BY FIRE OR OTHER CASUALTY
9.01 It is understood and agreed that if, during the Term hereof, the
Project and/or the Premises shall be damaged or destroyed in whole or in part by
fire or other casualty, without the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors, invitees or licensees, which damage is
covered by insurance carried pursuant to Section 8 above, unless Landlord elects
to terminate this Lease as provided in Paragraph 9.02 below, Landlord shall
cause the Project and/or the Premises to be repaired and restored to good,
tenantable condition with reasonable dispatch at its expense; provided, however,
Landlord shall not be obligated to expend for such repair or restoration an
amount in excess of insurance proceeds made available to Landlord for such
purpose, if any. Landlord's obligation hereunder shall be limited
to repairing or restoring the Project and/or the Premises to
substantially the same condition that existed prior to such damage or
destruction.
9.02 If (i) more than fifty (50%) percent of the floor area of the
Premises shall be damaged or destroyed, (ii) more than twenty-five (25%) percent
of the Project shall be damaged or destroyed, or (iii) any material damage or
destruction occurs to the Premises or the Project during the last twelve (12)
months of the Initial Term or Option Term, as the case may be, then Landlord may
elect to either terminate this Lease or repair and rebuild the Premises. In
order to terminate this lease pursuant to this Paragraph, Landlord must give
written notice to Tenant of its election to so terminate, such notice to be
given within ninety (90) days after the occurrence of damage or destruction
fitting the above description, and thereupon the term of this Lease shall expire
by lapse of time ten (10) days after such notice is given and Tenant shall
vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant. Tenant
acknowledges that Landlord will not carry insurance on Tenant's furniture and/or
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Landlord will not be obligated to repair any
damage thereto or replace the same.
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9.03 Tenant shall give immediate notice to Landlord in case of fire
or accident at the Premises. If Landlord repairs or restores the Premises as
provided in Paragraph 9.01 above, Tenant shall promptly repair or replace its
trade fixtures, furnishings, equipment, personal property and leasehold
improvements in a manner and to a condition equal to that existing prior to the
occurrence of such damage or destruction.
9.04 If the casualty, or the repairing or rebuilding of the Premises
or Project pursuant to Paragraphs 9.01 and 9.02 above shall render the Premises
or Project untenantable, in whole or in part, a proportionate abatement of the
rent due hereunder shall be allowed from the date when the damage occurred
until the date Landlord completes the repairs on the Premises or Project or, in
the event Landlord elects to terminate this Lease, until the date of
termination. Such abatement shall be computed on the basis of the ratio of the
floor area of the Premises or Project rendered untenantable to the entire floor
area of the Premises or Project.
9.05 Tenant shall not entrust any property to any employee,
contractor, licensee, or invitee of Landlord. Any person to whom any property
is entrusted by or on behalf of Tenant in violation of foregoing prohibition
shall be deemed to be acting as Tenant's agent with respect to such property
and neither Landlord nor its agents shall be liable for any damage to property
of Tenant or of others entrusted to employees of the Project, nor shall
Landlord or its agents be liable for any such damage caused by other tenants or
persons in, upon or about the Project or caused by operations or construction
of any private, public or quasi-public work.
SECTION 10.
REPAIRS, RENOVATIONS AND ALTERATIONS
10.01 Tenant shall, at Tenant's sole expense, keep the interior of
the Premises and the fixtures therein in good condition, reasonable wear and
tear excepted, and will also repair all damage or injury to the Premises and
fixtures resulting from the carelessness, omission, neglect or other action or
inaction of Tenant, its servants, employees, agents, visitors, invitees or
licensees. Such damage shall be promptly repaired or damaged items replaced by
Tenant, at its sole expense, to the satisfaction of Landlord. If Tenant fails
to make such repairs or replacements, Landlord may do so and the cost thereof
shall become collectible as additional rent hereunder and shall be paid by
Tenant within ten (10) days after presentation of statement therefor. Landlord
shall maintain, and shall make all necessary repairs and replacements to, the
Building, the heating, air conditioning and electrical systems located therein,
and the Common Areas, provided that at Landlord's option, (i) Tenant shall make
all repairs and replacements arising from its act, neglect or default and that
of its agents, servants, employees, invitees and licensees, or (ii) Landlord
may make such repairs and replacements and the costs thereof shall become
collectable as additional rent hereunder and shall be paid by Tenant within
five (5) days after presentation of a statement therefore. Tenant shall keep
and maintain the Premises in a clean, sanitary and safe condition, and shall
keep and maintain the interior of the Premises in full compliance with the laws
of the United States and State of Michigan, all directions, rules and
regulations of any health officer, fire marshal, building inspector, or other
proper official of any governmental agency having jurisdiction over the
Premises, and the requirements of Landlord's mortgagee, all at Tenant's full
cost and expense, and Tenant shall comply with all requirements of law,
ordinance and regulation affecting the Premises. Tenant shall make all
non-structural repairs to the Premises as and when needed to preserve them in
good order and condition. All the aforesaid repairs shall be of quality or
class equal to the original construction. Tenant shall give Landlord prompt
written notice of any defective condition in any plumbing, heating system or
electrical lines located in, servicing or passing through the Premises and
following such notice, Landlord shall remedy the condition with due diligence
but at the expense of Tenant if repairs are necessitated by damage or injury
attributable to Tenant, Tenant's servants, agents, employees, invitees or
licensees. There shall be no allowance to Tenant for diminutions of rental
value and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant, or others making
or failing to make any repairs, alterations, additions, or improvements in or
to any portion of the Building or the Premises or in and to the fixtures,
appurtenances or equipment thereof. The provisions of this Section 10 with
respect to the making of repairs shall not apply in the case of fire or other
casualty which are dealt with in Section 9 hereof.
10.02 Tenant shall not make any renovations, alterations, additions or
improvements to the Premises without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. All plans and
specifications for such renovations, alterations, additions or improvements
shall be approved by Landlord prior to commencement of any work. Landlord's
approval of the plans, specifications and working drawings for Tenant's
alterations shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with laws, rules and
regulations of governmental agencies or authorities, including but not limited
to the Americans with Disabilities Act, as amended. All renovations,
alterations, additions or improvements made by Tenant upon the Premises, except
for movable office furniture and movable trade fixtures installed at the
expense of Tenant, shall be and shall remain the property of Landlord, and
shall he surrendered with the Premises at the termination of this Lease,
without molestation or injury. In addition, Landlord may designate by written
notice to Tenant at the time of written consent the alterations, additions,
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improvements and fixtures made by or for Tenant, which shall be removed by
Tenant at the expiration or termination of the Lease and Tenant shall
promptly remove the same and repair any damage to the Premises caused by such
removal.
10.03 Tenant agrees that all renovations, alterations, additions and
improvements made by it pursuant to Paragraph 10.02, notwithstanding Landlord's
approval thereof, shall be done in a good and workmanlike manner and in
conformity with all guidelines provided by Landlord and all laws, ordinances
and regulations of all public authorities having jurisdiction, that materials
of good quality shall be employed therein, that the structure of the Premises
shall not be impaired thereby, that the work shall be carried out and completed
in an orderly, clean and safe manner, and that, while the work is being
performed, Tenant shall maintain builder's risk insurance coverage with
Landlord as a named insured, which insurance coverage shall meet the criteria
set forth in Section 8.
10.04 Notwithstanding anything to the contrary set forth in this Lease,
Landlord shall have the right at any time and from time to time during the Term
of this Lease to add an additional building (or buildings) and other
improvements to the northeast side of the Building and, in connection therewith
to (a) cause Tenant to vacate the 3' x 44' section on the northeast side of
each floor of the Premises, (b) to demolish, repair and replace the existing
exterior wall, windows and other structures therein with a new demising wall,
halfway and other features excluding windows which Landlord may deem desirable
and, (c) within twenty-four (24) months after the date Tenant vacates such
space, the 3' x 44' wall section, to repair and restore such portion of the
Premises excluding windows, to substantially the same condition it was in prior
to the construction activity. During the period Landlord requires Tenant to
vacate the 3' x 44' section, the rent and all other sums due hereunder for such
space shall xxxxx proportionately until such area is returned to Tenant "ready
for occupancy". Except for the abatement of the rent pursuant to this Section
10.04, Landlord's construction activity shall not constitute an eviction of
Tenant or a default under this Lease.
SECTION 11.
LIENS
11.01 Tenant will keep the Premises free of liens of any sort and will
hold Landlord harmless from any liens which may be placed on the Premises
except those attributable to debts incurred by Landlord. In the event a
construction or other lien shall be filed against the Building, the Premises or
Tenant's interest therein as a result of any work undertaken by Tenant or its
employees, agents, contractors or subcontractors, or as a result of any repairs
or alterations made by or any other act of Tenant or its employees, agents,
contractors or subcontractors, Tenant shall, within two (2) ten (10) business
days after receiving notice of such lien, discharge such lien either by payment
of the indebtedness due the lien claimant or by filing a bond (as provided by
statute) as security for the discharge of such lien. In the event Tenant shall
fail to discharge such lien, Landlord shall after have the right to procure
such discharge by filing such bond, and Tenant shall pay the cost of such bond
to Landlord as additional rent upon the next Rent Day in accordance with
Section 5 hereof.
SECTION 12.
EMINENT DOMAIN
12.01 If all of the Premises are condemned or taken in any manner
(including without limitation any conveyance in lieu thereof) for any public or
quasi-public use, the term of this Lease shall cease and terminate as of the
date title is vested in the condemning authority. If (i) more than fifty (50%)
percent of the floor area of the Premises shall be condemned or taken in any
manner, or (ii) more than twenty-five (25%) percent of the Building shall be
condemned or taken, or (iii) any material condemnation or taking occurs during
the last twelve (12) months of the Initial Term or Option Term, as the case may
be, or (iv) such a portion of the parking area on the Land is so condemned or
taken that the number of parking spaces remaining are less than the number
required by applicable zoning laws or other building code for the Building,
then Landlord may elect to terminate this Lease. In order to terminate this
Lease pursuant to this Paragraph, Landlord must give Tenant written notice of
its election to so terminate, such notice to be given not later than ninety
(90) days after the completion of such condemnation or taking, and thereupon
the term of this Lease shall expire on the date set forth in such notice, and
Tenant shall vacate the Premises and surrender the same to Landlord, without
prejudice, however, to Landlord's rights and remedies against Tenant under the
Lease provisions in effect prior to such termination, and any rent owing shall
be paid up to such date and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be returned to Tenant.
12.02 If this Lease is not terminated following such a condemnation or
taking, Landlord, as soon as reasonably practicable after such condemnation or
taking and the determination and payment of Landlord's award on account
thereof, shall expend as much as may be necessary of the net amount which is
awarded to Landlord and released by Landlord's mortgagee, if any, in restoring,
to the extent originally constructed by Landlord (consistent, however, with
zoning laws and building codes then in existence), so much of the Building as
was originally constructed by Landlord to an architectural unit as
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nearly like its condition prior to such taking as shall be practicable;
provided, however, Landlord shall not be obligated to expend for such
restoration an amount in excess of condemnation proceeds made available to
Landlord, if any. Landlord's obligation hereunder shall be limited to restoring
the Building and/or the Premises to substantially the same condition that
existed prior to such condemnation or taking.
12.03 If this Lease is not terminated pursuant to Paragraph 12.01, the
Base Rent and other sums payable by Tenant hereunder, as adjusted as provided
herein, shall be reduced in proportion to the reduction in area of the Premises
by reason of the condemnation or taking. If this Lease is terminated pursuant to
Paragraph 12.01, the minimum net rental and other charges which are the
obligation of Tenant hereunder shall be apportioned and prorated accordingly as
of the date of termination.
12.04 The whole of any award or compensation for any portion of the
Premises taken, condemned or conveyed in lieu of taking or condemnation,
including the value of Tenant's leasehold interest under the Lease, shall be
solely the property of and payable to Landlord. Nothing herein contained shall
be deemed to preclude Tenant from seeking, at its own cost and expense, an award
from the condemning authority for loss of its business, the value of any trade
fixtures or other personal property of Tenant in the Premises or moving
expenses, provided that the award for such claim or claims shall not be in
diminution of the award made to Landlord.
SECTION 13.
ASSIGNMENT OR SUBLETTING
13.01 Tenant agrees not to assign or In any manner transfer this Lease
or any interest in this Lease without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed and not to sublet
the Premises or any part of the Premises or to allow anyone to use or to come
in, through or under the Premises without Landlord's consent, which consent
shall not be unreasonably withheld or delayed. Any attempted subletting or
assignment without Landlord's consent, which consent shall not be unreasonably
withheld or delayed shall be voidable in Landlord's sole discretion and, at
Landlord's option, shall grant Landlord the right to terminate this Lease or to
exercise any of the other rights or remedies it may have hereunder. If consented
to, no assignment or subletting shall be binding upon Landlord unless the
sublessee or assignee shall deliver to Landlord an instrument (in recordable
form, if Landlord so requests) containing an agreement of assumption of all of
Tenant's obligations under this Lease. In no event may Tenant assign, sublet or
otherwise transfer this Lease or any interest in this Lease at any time while an
Event of Default exists hereunder. Landlord may, in its sole discretion, refuse
to give its consent to any proposed subletting or assignment or exercise its
other rights hereunder for any reason, including, but not limited to, the
financial condition, creditworthiness or business reputation of the proposed
sublessee or assignee, the prevailing market or quoted rental rates for space in
the Building or other comparable buildings, and the proposed use of the Premises
by, or business of, the proposed sublessee or assignee. One consent by Landlord
to a subletting or assignment will not be deemed a consent to any subsequent
assignment, subletting, occupation or use by any other person. Neither the
consent to any assignment or subletting nor the acceptance of rent from an
assignee, subtenant or occupant will constitute a release of Tenant from the
further performance of the obligations of Tenant contained in this Lease. A
dissolution, merger, consolidation, or other reorganization of Tenant, and the
issuance or transfer of twenty (20%) percent or more of the voting capital of
Tenant to persons other than shareholders as of the beginning of such period
within any twelve (12) month period, shall each be deemed to be an assignment of
this Lease, and as such, prohibited without Landlord's prior written consent.
Notwithstanding anything in this paragraph or the foregoing to the contrary, the
merger, consolidation, or other reorganization of Tenant and the sale of all or
substantially all of Tenant's assets (the "Permitted Transaction") shall be
permitted hereunder with sixty (60) day prior written notice to Landlord (unless
such notice is prohibited by law in which event Tenant shall give such notice to
Landlord as soon as possible but in no event less than ten (10) days prior to
such transaction), but not prior approval of Landlord, if the resultant entity
(the "Resultant Entity") after such Permitted Transaction has, and has
maintained for each of the two (2) full fiscal years preceding the Permitted
Transaction, an Investment Grade Bond Rating (as hereinafter defined) and a net
worth exceeding Twenty Million Dollars ($20,000,000) determined in accordance
with general accepted accounting principles, consistently applied, and Tenant
furnishes Landlord evidence reasonably acceptable to Landlord of the Investment
Grade Bond Rating and net worth standard. For purposes of this Lease,
"Investment Grade Bond Rating" means either (i) debt instruments issued and
outstanding by the Resultant Entity are rated by either Standard & Poors or
Xxxxx'x (or similar rating agency) to be Investment Grade or (ii) the credit of
the Resultant Entity, in the absence of any such outstanding debt instruments,
is determined pursuant to a report issued by Standard & Poors or Xxxxx'x (or
such similar rating agency) to be equal to, or greater than, an existing
Standard & Poors rating of BBB or higher, or an existing Xxxxx'x rating of BAA
or higher. In addition, an initial public offering (IPO) by the Tenant shall be
permitted hereunder with sixty (60) day prior written notice (unless such notice
is prohibited by law in which event Tenant shall give such notice to Landlord
as soon as possible but in no event less than ten (10) days prior to such
transaction), but not prior approval, of Landlord if the resultant entity after
such transaction has a net
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worth exceeding Twenty Million Dollars ($20,000,000) determined in accordance
with generally accepted accounting principles, consistently applied, and
Tenant furnishes Landlord evidence reasonably acceptable to Landlord of net
worth standard.
13.02 In the event Tenant desires to sublet all or a portion of the
Premises or assign this Lease, Tenant shall give notice to Landlord setting
forth the terms of the proposed subletting or assignment together with such
financial and other information Landlord may request. Landlord shall have the
right, exercisable by written notice to Tenant within sixty (60) days after
receipt of Tenant's notice, (i) to consent or refuse to consent thereto in
accordance with Paragraph 13.01 above, or (ii) to terminate this Lease which
termination may, in Landlord's sole discretion, be conditioned upon Landlord
and the proposed subtenant/assignee entering into a new Lease.
13.03 Upon the occurrence of an Event of Default, as defined under
Section 18, if all or any part of the Premises are then sublet or assigned,
Landlord, in addition to any other remedies provided by this Lease or by law,
may, at its option, collect directly from the sublessee or assignee all rent
becoming due to Landlord by reason of the subletting or assignment. Any
collection by Landlord from the sublessee or assignee shall not be construed to
constitute a waiver or release of Tenant from the further performance of its
obligations under this Lease or the making of a new Lease with such sublessee
or assignee.
13.04 In the event Tenant shall sublet all or a portion of the Premises
or assign this Lease, all of the sums of money or other economic consideration
received by Tenant or its affiliates, directly or indirectly, as a result of
such subletting or assignment, whether denominated as rent or otherwise, which
exceed in the aggregate the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations allocable to that
portion of the Premises subject to such sublease) shall be payable to Landlord
as additional rent under this Lease without effecting or reducing any other
obligation of Tenant hereunder.
SECTION 14.
INSPECTION OF PREMISES
14.01 With reasonable prior notice, except in the case of an
emergency, Tenant agrees to permit Landlord to enter the Premises for the
purpose of inspecting the same and to show same to prospective purchasers,
tenants or mortgagees of the Project, and to make such repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable, and
Landlord shall be allowed to take all material into and upon the Premises that
may be required therefor without the same constituting an eviction of Tenant in
whole or in part and the rent reserved shall in no way xxxxx while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. Landlord will give Tenant
reasonable notice prior to an entry by Landlord pursuant to this Section 14.01,
except in the case of emergencies in which event no notice need be given.
SECTION 15.
FIXTURES AND EQUIPMENT
15.01 All fixtures and equipment paid for by Landlord and all fixtures
which may be paid for and placed on the Premises by Tenant from time to time
but which are so incorporated and affixed to Premises that their removal would
involve damage or structural change to Premises will be and remain the property
of Landlord.
15.02 All tenant furnishings, office equipment and tenant fixtures
(other than those specified in Sections 10.02 and 15.01), which are paid for
and placed on the Premises by Tenant from time to time (other than those which
are replacements for fixtures originally paid for by Landlord) will remain the
property of Tenant.
SECTION 16.
PARKING AREAS
16.01 Tenant and its agents, employees, customers, licensees and
invitees shall have the non-exclusive right to use in common with Landlord and
all other tenants and occupants of the Building and their respective agents,
employees, customers, licensees and invitees, the Common Area parking and
loading dock facilities, if any, on the Land, and all driveways, entrances and
exits located within the Project necessary to provide a means of ingress and
egress to and from the Premises. Such use of parking facilities shall be
subject to, and consistent with, the Rules and Regulations of the Project (as
set forth in Exhibit B), together with such reasonable modifications and
additions as may be made thereto during the term of this Lease. Landlord shall
designate the number of parking spaces set forth in Paragraph 1.01(i) in the
parking lot of the Project for the exclusive use of Tenant. Tenant shall pay
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Landlord, as additional rent on each Rent Day, an amount set forth in Section
1.01(i). Such sums may be increased by Landlord from time to time by the
delivery of thirty (30) days prior written notice to Tenant. Within thirty
(30) days of receipt of such notification, Tenant may: (i) accept such
increase; or (ii) reject such increase for all or any of its exclusive spaces,
in which event Tenant's exclusive parking rights for such spaces shall
terminate. If Tenant accepts such increase or fails to reject such increase
within the thirty (30) day period, then commencing with the next Rent Day
following Landlord's notice, the amount of additional rent payable hereunder
shall be increased accordingly. Notwithstanding anything contained herein to
the contrary, Landlord shall have the right to relocate Tenant's Designated
Parking Spaces within the parking lot of the Project, and Landlord shall have
the right to designate other parking spaces in the parking lot for the
exclusive use of others. Tenant agrees to be bound by parking regulations in
effect at the Project, together with reasonable modifications or additions as
may be necessary during the term of this Lease, as more fully described in
Exhibit "B", attached hereto and made part hereof.
SECTION 17.
NOTICE OR DEMANDS
17.01 All bills, notices, requests, statements, communications, or
demands (collectively, "notices or demands") to or upon Landlord or Tenant
desired or required to be given under any of the provisions hereof must be in
writing. Any such notices or demands from Landlord to Tenant will be deemed to
have been duly and sufficiently given if a copy thereof has been personally
delivered, mailed by United States certified mail, return receipt requested,
postage prepaid, or sent via overnight courier service to Tenant at the address
of the Premises or at such other address as Tenant may have last furnished in
writing to Landlord for such purpose. Any such notices or demands from Tenant
to Landlord will be deemed to have been duly and sufficiently given if
delivered to Landlord in the same manner as provided above at the address set
forth at the heading of this Lease or at the address last furnished by written
notice from Landlord to Tenant. The effective date and the delivery date of
such notice or demand will be deemed to be the time when it is personally
delivered three (3) days after it is mailed or the day after it is sent via
overnight courier as herein provided.
SECTION 18.
BREACH; INSOLVENCY; RE-ENTRY
18.01 Each of the following shall constitute an Event of Default
under this Lease: (i) Tenant's failure to pay rent or any other sum payable
hereunder for more than five (5) business days after written notice of such
failure has been delivered to Tenant (but if one notice has been (given in any
twelve (12) month period, no further notice shall be required during such
twelve (12) month period); (ii) Tenant's failure to perform any of the
non-monetary terms, conditions or covenants of this Lease to be observed or
performed by Tenant for more than ten (10) business days after written
notice of such failure shall have been delivered to Tenant except in connection
with a breach which cannot be remedied or cured within said ten (10) business
day period, in which event the time of Tenant within which to cure such breach
shall be extended for such time as shall be necessary to cure the same, but
only if Tenant, within such ten (10) business day period, shall have commenced
and diligently proceeded to remedy or cure such breach; (iii) if Tenant is
named as the debtor in any bankruptcy proceeding, or similar debtor proceeding,
and any such proceeding, if involuntary, is not dismissed or set aside
within sixty (60) days from the date thereof; (iv) if Tenant makes an
assignment for the benefit of creditors or petitions for or enters into an
arrangement with creditors or if a receiver of any property of Tenant in or
upon the Premises is appointed in any action, suit or proceeding by or against
Tenant, or if Tenant shall admit to any creditor or to Landlord that it is
insolvent, or if the interest of Tenant in the Premises shall be sold under
execution or other legal process; or (v) if Tenant shall abandon the Premises,
vacate the Premises for a period of more than fifteen (15) consecutive days,
or suffer this Lease to be taken under any writ of execution. Upon the
occurrence of any Event of Default and after the delivery of written notice
thereof to the extent required under applicable Michigan law, Landlord, in
addition to any other rights and remedies it may have hereunder or by law,
shall have the immediate right of re-entry, and may remove all persons and
property from the Premises and it shall have the right to abandon or otherwise
dispose of such property in any way it may deem fit which is not in
contravention of applicable law. In addition, Landlord shall have the right,
but not the obligation, to store all or some of the property which may have
been removed in a public warehouse or elsewhere at the cost of, and for the
account of, Tenant, all without service of notice or resort to legal process
and all without being deemed guilty of trespass or becoming liable for any loss
or damage which may be occasioned thereby.
18.02 In the event Landlord shall elect to re-enter the Premises in
accordance with Paragraph 18.01, or should Landlord take possession of Premises
pursuant to legal proceedings or pursuant to any notice provided by law,
Landlord may either terminate this Lease or may from time to time without
terminating this Lease, make such alterations and repairs as Landlord may deem
necessary in order to relet the Premises, and relet the Premises or any part
thereof for any such term or terms (which may be for a term extended beyond the
term of this Lease) and at such rental or rentals, and upon such other terms
and conditions as Landlord may deem advisable.
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18.03 Upon the reletting of the Premises in accordance with Paragraph
18.02, all rentals received by Landlord from such reletting shall be applied in
the following order of priority: (a) to the payment of any additional rent
payable as provided in Section 5 hereof, including interest and late charges;
(b) to the payment of any other indebtedness other than rent due hereunder from
Tenant to Landlord; (c) to the payment of the actual costs and expenses of
obtaining possession, restoring and repairing the Premises and the actual costs
and expenses of reletting, including brokerage and reasonable attorneys' fees;
and (d) to the payment of any rent and other sums due and unpaid under this
Lease. The remainder, if any, shall be held by Landlord and applied in payment
of future rent as the same may become due and payable hereunder. If the rental
received from such reletting during any month is less than that to be paid
during that month by Tenant hereunder, Tenant shall pay any such deficiency to
Landlord monthly. No such re-entry or taking possession of the Premises or any
part thereof by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction.
18.04 Notwithstanding any reletting of the Premises without termination
in accordance with Paragraph 18.02, Landlord may at any time after the
occurrence of any Event of Default, terminate this Lease and, in addition to
any, other remedies Landlord may have, Landlord may recover from Tenant all
damages it may incur by reason of Tenant's breach, including, without
limitation, the reasonable cost of recovering and reletting the Premises and
reasonable attorneys' fees incidental thereto and the worth at the time of the
termination of the amount of rent and other charges payable hereunder for the
remainder of the Term, all of which amounts shall be immediately due and
payable by Tenant to Landlord.
18.05 In case suit shall be brought or an attorney otherwise
consulted, for recovery of possession of the leased premises, for the recovery
of rent or any other amount due under the provisions of this Lease, or because
of the breach of any other covenant herein contained on the part of Tenant to
be kept and performed, or any other action against Tenant by Landlord, or
because of any claimed breach of this Lease by Landlord or any other action
against Landlord by Tenant, (and Landlord shall be the prevailing party),
Tenant shall pay to Landlord all expenses incurred therefor, including a
reasonable attorneys' fee. In addition, Landlord and Tenant hereby waive trial
by jury in any action, proceeding or counterclaim brought by Landlord or Tenant
against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord to Tenant, the use or
occupancy of the Premises by Tenant or any person claiming through or under
Tenant, any claim of injury or damage, and any emergency or other statutory
remedies; provided, however, the foregoing waiver shall not apply to any action
for personal injury or property damage.
18.06 Landlord and Tenant shall each use reasonable efforts to
mitigate any damages resulting from a default of the other party under this
Lease. Landlord's obligation to mitigate damages after a default by Tenant
under this Lease shall be satisfied in full if Landlord undertakes to lease the
Premises to another tenant (the "Substitute Tenant") in accordance with the
following criteria:
(i) Landlord shall have no obligation to solicit or
entertain negotiations with any other prospective Substitute Tenant for the
Premises until Landlord obtains full and complete possession of the Premises,
including, without limitation, the absolute right to relet the Premises free of
any claim of Tenant.
(ii) Landlord may give priority to lease any or all available
space(s) in the Project before offering the Premises to a Substitute Tenant.
(iii) Landlord shall not be obligated to lease the Premises to a
Substitute Tenant for a rental less than the current fair market rental then
prevailing for similar space in comparable properties in the same sub-market as
the Building, nor shall Landlord be obligated to enter into a lease under other
terms and conditions that are unacceptable to Landlord under Landlord's then
current leasing policies for comparable space in the Building.
(iv) Landlord shall not be obligated to enter into a lease with any
proposed Substitute Tenant whose use would:
A. Disrupt the tenant mix of the Building;
B. Violate any restriction, covenant, or requirement
contained in the lease of another tenant of the
Building or Project;
C. Adversely affect the reputation of the Building or the
Project; or
D. Be incompatible with the tenancy or use of the Building
as a first class office building.
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(v) Landlord shall not be obligated to enter into a lease with any
proposed Substitute Tenant which does not have, in Landlord's reasonable
opinion. sufficient financial resources to lease the Premises.
(vi) Landlord shall not be required to expend any amount of money to
alter, remodel, or otherwise make the Premises suitable for use by a proposed
Substitute Tenant unless:
A. Tenant pays any such sum to Landlord in advance of
Landlord's execution of a lease with a Substitute Tenant
(which payment shall not be in lieu of any damages or
other sums to which Landlord may be entitled as a result
of Tenant's default under this Lease); or
B. Landlord, in Landlord's reasonable discretion,
determines that any such expenditure is financially
justified in connection with entering into a lease
with such Substitute Tenant.
Upon compliance with the above criteria regarding releasing of the Premises
after a default by Tenant, Landlord shall be deemed to have fully satisfied
Landlord's obligation to mitigate damages under this Lease and under any law or
judicial ruling in effect on the date of this Lease or at the time of Tenant's
default, and Tenant waives and releases, to the fullest extent legally
permissible, any right to assert in any action by Landlord to enforce the terms
of this Lease, any defense, counterclaim, or rights of setoff or recoupment
respecting the mitigation of damages by Landlord, unless and to the extent
Landlord fails to act in accordance the requirements of this section.
SECTION 19.
SURRENDER OF PREMISES ON TERMINATION
19.01 At the expiration (or earlier termination) of the Term hereof,
Tenant will surrender the Premises broom clean and in as good condition and
repair as they were at the time Tenant took possession, subject to insured loss
by casualty under Section 9 and reasonable wear and tear excepted, and promptly
upon surrender will deliver all keys and building security cards for the
Premises to Landlord at the place then fixed for the payment of rent. At the
expiration of the Lease term, Tenant will, at its own cost and expense, repair
or pay the cost of restoration with respect to any damage to the Premises
arising from the removal of any trade fixtures or similar items. Tenant shall
have no rights of removal as to property affixed or otherwise placed on or in
the Premises by or at the expense of Landlord, its predecessors, successors or
assigns. All costs and expenses incurred by Landlord in connection with
repairing or restoring the Premises to the condition called for herein,
together with the costs, if any, of removing any property of Tenant together
with any property designated by Landlord pursuant to Section 10.02, left on the
Premises, shall be paid by Tenant on demand. Tenant shall remove all property
of Tenant and make all repairs necessitated thereby at its own cost, as
directed by Landlord. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the Term of this Lease.
SECTION 20.
PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT
20.01 If Tenant fails to pay any sum of money, other than Base Rent,
required to be paid hereunder or fails to perform any act on its part to be
performed hereunder, including, but not limited to, the performance of all
covenants pertaining to the condition and repair of the Premises pursuant to
Section 10 above, and if such failure shall not otherwise be cured within the
time, if any, provided herein, then upon two (2) days notice Landlord may (but
shall not be required to), without waiving or releasing Tenant from any of
Tenant's obligations, make any such payment or perform any such other act. All
sums so paid or incurred by Landlord and all incidental costs, including, but
not limited to, the cost of repair, maintenance or restoration of the Premises,
shall be deemed additional rental and, together with interest thereon computed
at the rate set forth in Section 5 hereof from the date of payment by Landlord
until the date of repayment by Tenant to Landlord, shall be payable to Landlord
on demand. On default in such payment, Landlord shall have the same remedies
as on default in payment of rent. The rights and remedies granted to Landlord
under this Section 20 shall be in addition to, and not in lieu of, all other
remedies, if any, available to Landlord under this Lease or otherwise, and
nothing contained herein shall be construed to limit such other remedies of
Landlord with respect to any matters covered herein.
SECTION 21.
SUBORDINATION; ESTOPPEL CERTIFICATES
21.01 This Lease is subject and subordinate to all ground leases,
underlying leases, and mortgages, if any, now or hereafter made, which may now
or hereafter affect the Project and to all renewals, modifications,
consolidations, replacements and extensions of any such ground leases,
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underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be necessary. Notwithstanding the
foregoing, Landlord reserves the right to declare this Lease prior to the lien
of any ground lease, underlying lease, or mortgage now or hereinafter placed
upon the real property of which the Premises are a part by recording a written
notice of such priority with the register of deeds. Tenant covenants and
agrees to execute and deliver, within ten (10) days after requested by
Landlord, such further instrument or instruments subordinating this Lease (or
declaring the Lease prior and superior) to any lease or proposed lease or to
the lien of any such mortgage or mortgages as shall reasonably be desired by
Landlord, any lessor or proposed lessor, and any mortgagees or proposed
mortgagees. Such instruments will be commercially reasonable. Landlord
warrants as of the date of signing of this Lease there are no ground leases,
underlying leases or mortgages attached to the Project.
21.02 In the event any proceedings are brought for foreclosure of, or
in the event of the conveyance by deed in lieu of foreclosure of, or in the
event of the exercise of the power of sale under, any mortgage made by Landlord
covering the Premises, Tenant hereby attorns to the new owner, and covenants
and agrees to execute any instrument in writing reasonably satisfactory to the
new owner, whereby Tenant attorns to such successor in interest and recognizes
such successor as Landlord under this Lease.
21.03 Tenant, within ten (10) days after request (at any time or times)
by Landlord, will execute and deliver to Landlord an estoppel certificate, in
form reasonably acceptable to Landlord, certifying: (i) to the Commencement
Date and expiration date of the Term; (ii) that this Lease is unmodified and in
full force and effect, or is in full force and effect as modified, stating the
modifications; (iii) that Tenant does not claim that Landlord is in default in
any way, or listing any such claimed defaults and that Tenant does not claim
any rights of setoff, or listing such rights of setoff; (iv) to the amount of
monthly rent and other sums due hereunder 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; (v) that Tenant agrees to provide any
mortgagee of Landlord with notice of any default by Landlord hereunder and give
such mortgagee the opportunity to cure such default within sixty (60) days of
such mortgagee's receipt of notice of such default; and (vi) such other matters
as may be reasonably requested by Landlord. Any such certificate may be relied
upon by any prospective purchaser, mortgagee or lessor of the Premises or any
part thereof.
SECTION 22.
QUIET ENJOYMENT
22.01 Landlord agrees that at all times when no Event of Default
exists under this Lease, Tenant's quiet and peaceable enjoyment of the
Premises, in accordance with and subject to the terms of this Lease, will not
be disturbed or interfered with by Landlord or any person claiming by, through,
or under Landlord.
SECTION 23.
HOLDING OVER
23.01 If Tenant remains in possession of the Premises after the
expiration of this Lease without executing a new lease, Landlord shall have the
right to deem Tenant to be occupying the Premises as a tenant from month to
month and the Base Rent for each month will be one hundred fifty (150%) percent
of the greater of: (a) the regular monthly installment of Base Rent payable for
the last month of the Term of this Lease; or (b) the then prevailing market
rates of rent for the Project determined by Landlord in its sole and absolute
discretion. This provision shall not preclude Landlord from terminating the
lease or recovering any and all damages Landlord may incur as a result of
Tenant's failure to timely deliver possession of the Premises to Landlord or
from exercising any other right or remedy it may have hereunder.
SECTION 24.
REMEDIES NOT EXCLUSIVE; WAIVER
24.01 Each and every of the rights, remedies and benefits of Landlord
provided by this Lease are cumulative, and are not exclusive of any other of
said rights, remedies and benefits, or of any other rights, remedies and
benefits allowed by law.
24.02 The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or of any of the rules or regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a
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waiver of such breach and no provision of this Lease shall be deemed to have
been waived by Landlord unless such waiver be in writing signed by Landlord.
One or more waivers of any covenant or condition by either party shall not be
construed as a waiver of a further or subsequent breach of the same covenant or
condition, and the consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval will not be deemed to waive or render
unnecessary Landlord's consent or approval to or of any subsequent similar act
by Tenant. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rental herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord shall accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy provided in this Lease.
SECTION 25.
WAIVER OF SUBROGATION
25.01 Landlord and Tenant hereby release each other and their respective
agents and employees from any and all liability to each other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or damage
to property caused by or resulting from risks insured against under the property
insurance for loss, damage or destruction by fire or other casualty carried by
the parties hereto and which was in force at the time of any such loss or damage
or which would have been so covered had the insurance required hereunder been
maintained; provided, however, that this release shall be applicable only with
respect to loss or damage occurring during such time as the releasor's policies
of insurance contain a clause or endorsement to the effect that any such release
shall not adversely affect or impair such policies or prejudice the right of the
releasor to recover thereunder. Landlord and Tenant each agrees that it will
require its property insurance carriers to include in its policy such a clause
or endorsement. However, if such endorsement cannot be obtained, or shall be
obtainable only by the payment of an additional premium charge above that which
is charged by companies carrying such insurance without such waiver of
subrogation, then the party undertaking to obtain such waiver shall notify the
other party of such fact and such other party shall have a period of ten (10)
days after the giving of such notice to agree in writing to pay such additional
premium if such policy is obtainable at additional cost (in the case of Tenant,
pro rate in proportion of Tenant's rentable area to the total rentable area
covered by such insurance); and if such other party does not so agree or the
waiver shall not be obtainable, then the provisions of this Section 25.01 shall
be null and void as to the risks covered by such policy for so long as either
such waiver cannot be obtained or the party in whose favor a waiver of
subrogation is desired shall refuse to pay the additional premium. If the
release of either Landlord or Tenant, as set forth in the second sentence of
this Section 25.01, shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not released,
but no action or rights shall be sought or enforced against such party unless
and until all rights and remedies against the other's insurer are exhausted and
the other party shall be unable to collect such insurance proceeds. The waiver
of subrogation referred to above shall extend to the agents and employees of
each party (including, as to Landlord, the Manager), but only if and to the
extent that such waiver can be obtained without additional charge (unless such
party shall pay such charge). Nothing contained in this Section 25.01 shall be
deemed to,relieve either party from any duty imposed elsewhere in this Lease to
repair, restore and rebuild.
SECTION 26.
RIGHT TO SHOW PREMISES
26.01 Landlord may show the Premises to prospective tenants and brokers,
and may display signs about the Project and elsewhere advertising the
availability of the Premises during the last eighteen (18) months of the Lease.
SECTION 27.
INDEMNIFICATION
27.01 Tenant at its expense will defend, indemnify, save and hold
harmless Landlord, its invitees, licensees, servants, agents, employees,
affiliated entities and contractors, from and against any loss, damage, claim of
damage, liability or expense, (including attorney fees) to or for any person or
property, whether based on contract, tort, negligence or otherwise, arising
directly or indirectly out of or in connection with the condition of the
Premises, the occupation, use or misuse thereof by Tenant or any other person,
the acts or omissions of Tenant, its invitees, licensees, servants, agents,
employees or contractors, the failure of Tenant to comply with any provision of
this Lease, or any event on or relating to the Premises, whatever the cause or
any litigation or other proceeding by or against Tenant to which Landlord is
made a party, other than the intentional, willful or malicious act of Landlord
which causes an injury which was either expected or intended by Landlord when it
performed the act in question. The provisions of this Section 27.01 will
survive the expiration or termination of this Lease.
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SECTION 28.
DEFINITION OF LANDLORD; LANDLORD'S LIABILITY
28.01 The term "Landlord" as used in this Lease so far as covenants,
agreements, stipulations or obligations on the part of Landlord are concerned is
limited to mean and include only the owner or owners of 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 all personal liability for the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
28.02 This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reasons of shortages of materials, acts of God, governmental
restrictions, strike or labor troubles or any cause beyond Landlord's reasonable
control including, but not limited to, government preemption in connection with
a national emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
SECTION 29.
SECURITY DEPOSIT AND SECURITY INTEREST
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SECTION 30.
RULES AND REGULATIONS
30.01 Tenant shall faithfully abide by and observe the rules and
regulations for the Building, a copy of which is attached hereto as Exhibit B
and made a part hereof, and, after notice thereof, all reasonable additions
thereto and modifications thereof of uniform applicability from time to time
promulgated in writing by Landlord.
SECTION 31.
SIGNS AND ADVERTISING
31.01 No signs, lighting, lettering, pictures, notices, advertisements,
shades, awnings or decorations will be displayed, used or installed by Tenant
except as approved in writing by Landlord. All such materials displayed in and
about the Premises will be such only as to advertise the business carried on
upon the Premises and Landlord will control the location, character and size
thereof. Tenant shall not cause or permit to be used any advertising materials
or methods which are reasonably objectionable to Landlord or to other tenants of
the Building, including without limiting the generality of the foregoing:
loudspeakers, mechanical or moving display devices, unusually bright or flashing
lights and similar devices the effect of which may be seen or heard from outside
the Premises. Tenant shall not solicit business, sell or display merchandise,
or distribute hand bills or other advertising matter in the parking area or
other Common Areas.
SECTION 32.
GENERAL
32.01 If, by reason of the occurrence of unavoidable delays due to acts
of God, governmental restrictions, strikes, labor disturbances, shortages of
materials or supplies or for any other cause or event beyond Landlord's
reasonable control, Landlord is unable to furnish or is delayed in furnishing
any service required by Landlord under the provisions of this Lease, or Landlord
is unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
required to be performed or made under this Lease, or is unable to fulfill or is
delayed in fulfilling any of Landlord's other obligations under this Lease, no
such inability or delay shall constitute an actual or constructive eviction in
whole or in part, or, except as otherwise (expressly provided herein, entitle
Tenant to any abatement or diminution of rental or other charges due hereunder
or otherwise relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
32.02 This Lease is being entered into and executed in the State of
Michigan, and all questions with respect to the construction of this Agreement
and the rights and liabilities of the parties shall be determined in accordance
with the provisions of the laws of the State of Michigan.
32.03 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.
32.04 Section headings appearing in this Lease are for convenience only.
They do not define, limit or construe the contents of any paragraphs or clauses
contained herein.
32.05 Landlord reserves the right to relocate Tenant in other comparable
space In the Building upon not less than sixty (60) days prior written notice to
Tenant. Landlord shall pay the cost of moving Tenant to new space. If Tenant
does not wish to accept such relocation, Tenant may object thereto by written
notice to Landlord within ten (1 0) days after the notice from Landlord. In the
event Tenant fails to object within such ten (10) day period, Tenant shall be
deemed to have accepted the relocation. In the event Tenant so objects,
Landlord may rescind the notice of intention to relocate Tenant or may reaffirm
said intention, in which event Tenant may terminate this Lease by written notice
to Landlord within five (5) days after the affirmation notice from Landlord. In
the event Tenant fails to notify Landlord of its termination within such five
(5) day period, it shall be deemed to have accepted the relocation. If Tenant
terminates this Lease pursuant this paragraph, Tenant must vacate the Premises
within thirty (30) days
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following Tenant's notice to Landlord of termination. The cost of relocation to
be paid by Landlord shall include the expense of the de-installation and
installation of equipment, facilities, and business communications facilities to
such substitute space. All reimbursements to Tenant shall be made within thirty
(30) days of receipt of the invoice(s) therefor.
32.06 The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, successors, administrators and executors provided, however,
that no assignment by, from, through, or under Tenant in violation of any of the
provisions hereof shall vest in the assigns any right, title, or Interest
whatsoever. All provisions of this Lease are and will be binding on the
successors and permitted assigns of Landlord and Tenant.
32.07 Time shall be and is of the essence in this Lease and with respect to
the performance of all obligations of Landlord and Tenant hereunder.
32.08 Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option, be furnished from time to
time, in whole or in part, by employees of Landlord or by the managing agent of
the Project or by one or more third persons.
32.09 Landlord shall have the right at any time, and from time to time, to
unilaterally amend the provisions of this Lease if Landlord is advised by
counsel that all or any portion of the monies paid by Tenant to Landlord
hereunder are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code or regulation issued
thereunder, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more money on
account of its occupancy of the Premises under the term of this Lease as so
amended and provided, further, that no such amendment or amendments shall result
in Tenant receiving under the provisions of this Lease less service than it is
entitled to receive, nor services of a lesser quality.
32.10 Except as otherwise provided herein, neither Landlord nor Landlord's
agents have made any representations or promises with respect to the physical
condition of the Building, the Land or the Premises, or with respect to the
rents, leases, expenses of operation or any other matter or thing affecting or
related to the Premises except as expressly set forth herein; and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this Lease.
32.11 Annually and at any other time, Tenant shall promptly furnish
Landlord financial statements reflecting Tenant's and any Guarantor's current
financial condition. All such financial statements shall be in such form and
contain such detail as Landlord shall reasonably request.
32.12 In case any provision of this Lease or any agreement or instrument
executed in connection herewith shall be invalid, illegal or unenforceable, such
provision shall be enforced to the fullest extent permitted by applicable law,
and the validity, legality and enforceability of the remaining provisions hereof
and thereof shall not in any way be affected or impaired thereby. This Lease
shall not be construed more strictly against one party than against the other,
merely by virtue of the fact that it may have been prepared by counsel for one
of the parties, it being recognized that both Landlord and Tenant have
contributed substantially and materially to the preparation of this Lease.
32.13 This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant. 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 there are no covenants, agreements, stipulations, promises,
conditions or understanding, either oral or written, between them other than set
forth herein or therein.
32.14 Tenant will not record this Lease or a memorandum hereof, and will
not otherwise disclose the terms of this Lease to anyone other than its
attorneys, accountants or employees who need to know of its contents in order to
perform their duties for Tenant. Any other disclosure will be an Event of
Default under the Lease. Tenant agrees that Landlord shall have the right to
publish a "tombstone" or other promotional description of this Lease.
32.15 Except as disclosed in writing to Landlord, Tenant represents and
warrants to Landlord that there are no claims for brokerage commissions or
finder's fees in connection with this Lease as a result of the contracts,
contacts or actions of Tenant, and Tenant agrees to indemnify Landlord and hold
it harmless from all liabilities arising from any such claim arising from an
alleged agreement or act by Tenant (including, without limitation, the cost of
counsel fees in connection therewith); such agreement to survive the termination
of this Lease.
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32.16 The matters set forth on Exhibit D, Special Provisions, if any, are
hereby accepted and agreed to between Landlord and Tenant and incorporated
herein by reference.
IN WITNESS WHEREOF Landlord and Tenant have executed this Lease as of the
date and year first above written.
LANDLORD: TENANT:
WRC PROPERTIES, INC., a Delaware Corporation SYNTEL, INC., a Michigan Corporation
By: Xxxxxxxx X. Xxxxxxxx By: Xxxxxx Xxxxx
------------------------------------ -------------------------------------
Signature Signature
Printed Name: Xxxxxxxx X. Xxxxxxxx Printed Name: Xxxxxx Xxxxx
-------------------------- ---------------------------
Its: Assistant Secretary Its: President
----------------------------------- ------------------------------------
Date: Date: August 29, 1996
---------------------------------- -----------------------------------
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EXHIBIT A
SPACE PLAN
[FLOOR PLAN]
XXXX OFFICENTRE 2
[LOGO] Building - D - 2 - 4
NO SCALE
Approved by Tenant:
SYNTEL, INC., a Michigan Corporation
By: Xxxxxx Xxxxx
-----------------------------------
Signature
Printed Name: Xxxxxx Xxxxx
-------------------------
Its: President
----------------------------------
Date: August 29, 1996
---------------------------------
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EXHIBIT B
RULES AND REGULATIONS OF THE PROJECT
Tenant agrees for itself, its employees, agents, clients, customers,
licensees, invitees and guests, to comply fully with the following rules and
regulations and with such reasonable modifications thereof and additions thereto
as Landlord may make for the Project. All rules and regulations set forth in
this Exhibit B shall be in addition to, and shall in no way limit, the
provisions of the Lease.
1 . The Common Areas of the Project shall not be used by Tenant for any
purpose other than those for which they are intended or designated.
2. Landlord has the right to control access to the Project and refuse
admittance to any person or persons without satisfactory identification or a
pass issued by Tenant during hours reasonably determined by Landlord.
3. No person shall disturb other occupants of the Building by making loud
or disturbing noises.
4. Soliciting, peddling and canvassing is prohibited in the Project and
Tenant shall cooperate to prevent the same.
5. All deliveries and removals of furniture, equipment or other bulky
items must take place after notification to Landlord, during such hours and in
such manner as Landlord shall reasonably determine. Tenant shall be responsible
for all damage or injury resulting from the delivery or removal of all articles
into or out of the Project or the Premises. No load shall be placed on the
floors or in elevators in excess of the limits which shall be established by
Landlord.
6. Tenant shall not use any equipment emitting noxious fumes or offensive
odors unless they are properly vented at Tenant's expense.
7. Nothing shall be attached to the interior or exterior of the Building
without the prior written consent of Landlord, except art work and/or the
Syntel, Inc. logo on the walls.
8. No sign or other representation shall be placed on the interior or
exterior of the Building without prior written consent of Landlord.
9. No hazardous articles, bicycles, vehicles or animals of any kind (other
than wheelchairs and seeing-eye dogs) shall be brought into or kept in or about
the Building without the prior consent of Landlord.
10. No marking, painting, drilling, boring, cutting or defacing of the
walls, floors or ceilings of the Building, other than that which is reasonably
necessary for the hanging of art work, diplomas and similar objects which do not
require any material alteration to any wall, floor or ceiling, shall be
permitted without the prior written consent of Landlord.
11. The electrical system and lighting fixtures in the Building shall not
be altered or disturbed in any manner without the prior written consent from
Landlord. Any alterations or additions must be performed by licensed personnel
authorized by Landlord.
12. The toilets and other plumbing fixtures shall not be used for any
purpose other than that for which they are designed. No sweepings, rubbish or
other similar materials or substances shall be deposited therein.
13. Smoking is prohibited in the elevators), hallways, corridors, stairs,
lobbies and other common areas of the Project unless clearly designated to the
contrary by Landlord.
14. 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.
15. Tenant assumes full responsibility for protecting the Premises from
theft, burglary, robbery and pilferage. Except during Tenant's normal business
hours, Tenant shall keep all door's to the Premises locked and other means of
entry to the Premises closed and secured.
16. Tenant or Tenant's employees shall not distribute literature, flyers,
handouts or pamphlets of any kind in any of the common areas of the Project
without the prior written consent of Landlord.
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17. Tenant shall not sell or prepare any food or beverages in or from
the Premises without Landlord's prior written consent, except for coffee, tea,
soup and microwave foods prepared for consumption by Tenant, Tenant's servants,
employees, agents, clients, customers, licensees, invitees. visitors, and
contractors.
18. Tenant shall not permit the use of any apparatus for sound
production or transmission in such manner that the sound so transmitted or
produced shall be audible or vibrations therefrom shall be detectable beyond the
Premises.
19. Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise and air waves which may be transmitted beyond the Premises.
20. No floor covering shall be affixed to any floor in the Premises by
means of glue or other adhesive without Landlord's prior written consent.
21. Tenant shall not use the name of the Building for any purpose other
than that of the business address of Tenant (which it may do, at its own risk,
in the event the name of the Building changes), and shall not use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence.
22. Tenant shall not obstruct sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways in or about the Building,
nor shall Tenant place objects against glass partitions, doors or windows which
would be unsightly from the Building's corridors, or from other areas of the
Building.
23. Tenant shall not make any room-to-room canvass to solicit business
from other tenants of the Building.
24. No additional locks or similar devices shall be attached to any
door and no locks shall be changed without Landlord's prior written consent. A
card access security system may be installed and maintained by Tenant. Upon
termination of this Lease or of Tenant's possession of the Premises, Tenant
shall surrender all keys for door locks and other locks in or about the Premises
and shall make known to Landlord the combination of all locks, safes, cabinets
and vaults which are not removed by Tenant.
25. 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 without Landlord's prior written consent.
26. 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.
27. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into
account the capacity of the electric wiring in the Building and the Premises
and the needs of other tenants, and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not relieve
Tenant from the obligation not to use more electricity than such safe
capacity.,
28. Tenant shall not overload any floor or elevator 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 locations thereof. Safes, furniture, equipment, machines
and other large or bulky articles shall be brought through the Building and
into and out of the Premises at such times and in such manner as Landlord
shall direct (including the designation of elevator) and at Tenant's sole risk
and responsibility. Prior to Tenant's removal of any such articles from the
Building, Tenant shall obtain written authorization therefore from Landlord.
29. Tenant shall not in any manner deface or damage the Building.
30. Tenant shall not bring into the Building or Premises inflammables
such as gasoline, kerosene, naphtha and benzine, or explosives or any other
articles of intrinsically dangerous nature.
31. Movement into or out of the Building of furniture or office
equipment, or dispatch or receipt by Tenant of any merchandise or materials
other than hand-delivered packages, which requires the use of elevators or
stairways or movement through the Building entrances or lobby, shall be
restricted to the hours designated by Landlord. Tenant assumes all risk of
damage to any and all articles so moved, as well as injury to any person or
property in such movement, and hereby agrees to indemnify Landlord against any
loss resulting therefrom.
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32. Landlord shall not be responsible for any lost or stolen property,
equipment, money or jewelry from the Premises or the public areas of the
Building regardless of whether such loss occurs when the Premises are locked.
33. The Premises shall not be used for housing, lodging, sleeping or
for any immoral or illegal purpose.
34. The work of the janitor or cleaning personnel shall not be hindered
by Tenant after 5:30 p.m. and the windows may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent unreasonable
cost to Landlord in discharging its obligations regarding cleaning services.
35. Tenant will refer all contractors or installation technicians
rendering any service for Tenant for supervision and approval of Landlord before
performance of any contractual services.
36. Parking Regulations:
(i) Cars WILL NOT park in the designated "Reserved" spaces.
There will be no parking in any area of the Project other
than those areas clearly marked and defined for parking.
(ii) Parking will be on the basis of first-come, first-served
except for reserved spaces.
(iii) Parkers will be expected to park their cars in an orderly
manner within the marked stalls provided.
(iv) It is recommended that cars be left in a "brakes on, doors
locked" condition at all times.
(v) No car will be allowed to park in any driveway area or
in any manner which will interfere with the normal flow of
traffic.
(vi) Cars parked illegally will be towed at the car owner's
expense.
(vii) Tenant agrees that all its employees have been fully
informed as to the content of these regulations.
(viii) Landlord or Landlord's agents and employees shall not be
liable for and Tenant waives all claims resulting from any
accident or occurrence in and upon the parking area.
(ix) All automobiles parked in the parking areas shall be in
good condition and repair, utilized for personal
transportation, not commercial in nature and driven and
handled at the risk of the owner.
(x) Automobile owner or owner's agents shall not wash, wax
or otherwise clean or prep the interior/exterior of
vehicles or perform any maintenance whatsoever on vehicles
within the parking area or on any part of the parking lot
servicing the Building.
(xi) In the event that automobile owner's use of the parking
area violates any local, county or state law, regulation
or ordinance, automobile owner's right to utilize the
parking area shall immediately cease. In addition, in no
event shall Tenant permit its employees, licensees,
invitees or other occupants to use more than Tenant's
Proportionate Share of the existing parking spaces for the
Project.
(xii) Parking areas shall not be used to store vehicles or for
parking large commercial or recreational vehicles.
Tenant shall be responsible for the observance of all the foregoing rules and
regulations by Tenant's employees, agents, clients, customers, invitees,
licensees and guests. Landlord shall not be responsible for any violation of
the foregoing rules and regulations by other tenants of the Building and shall
have no obligation to enforce the same against other tenants. Landlord shall
have the right to amend these rules and regulations from time to time in
accordance with the terms of the Lease.
Approved by Tenant:
SYNTEL, INC., A MICHIGAN CORPORATION
By: Xxxxxx Xxxxx
--------------------------------
Signature
Printed Name: Xxxxxx Xxxxx
----------------------
Its: President
-------------------------------
Date: August 29, 1996
------------------------------
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EXHIBIT C
DAILY JANITORIAL SERVICE
(a) All waste paper baskets and ashtrays are emptied and cleaned.
(b) All furniture and cleared desks are dusted as required.
(c) All carpeting is vacuum cleaned daily as required.
(d) All doors, doorknobs, and glass are wiped down as required.
(e) Walls are spot cleaned as required.
(f) Windows are spot cleaned as required.
(g) All corridors, common areas, common area bathrooms, and
elevators are cleaned daily, which includes washing all tile floors, washing
out the sinks and stalls, vacuum cleaning the hallway carpeting, cleaning out
the drinking fountains and spot cleaning the walls and mirrors where necessary.
Approved by Tenant:
SYNTEL, INC., A MICHIGAN CORPORATION
By: Xxxxxx Xxxxx
-------------------------------
Signature
Printed Name: Xxxxxx Xxxxx
---------------------
Its: President
------------------------------
Date: August 29, 1996
-----------------------------
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EXHIBIT D
SPECIAL PROVISIONS
D1 EXCESS TENANT IMPROVEMENT COSTS.
Landlord shall construct the Tenant Improvements up to a cost of Four
hundred forty-five thousand three hundred thirty-one dollars and fifty-two
cents ($445,331.52) (the "Tenant Improvement Allowance"). In the event the cost
of completing the Tenant Improvements is less than the Tenant Improvement
Allowance, Landlord shall retain the difference and Tenant shall have no claim
for and not be entitled to receive any such sums. In the event the estimated
cost of completing the Tenant Improvements in accordance with the Plans shall at
anytime exceed one hundred five percent (105%) of the Tenant Improvement
Allowance, Tenant shall pay Landlord, within five (5) days of request for such
payment (which request will come no more than twice monthly), the difference
between the estimated cost of completion and the Tenant Improvement Allowance on
a percentage of completion basis. If the estimated cost of completion of the
Tenant Improvements is less than one hundred five percent (105%) of the Tenant
Improvement Allowance, Tenant shall pay Landlord the difference between the
actual cost of completion and the Tenant Improvement Allowance when the Tenant
Improvements are substantially complete.
D2 MOVING ALLOWANCE.
Landlord shall provide Tenant with a Moving Allowance of up to $1.00 per usable
square foot, Twenty-three thousand three hundred twenty-eight dollars and zero
cents ($23,328.00), to be paid upon presentation of related moving company
invoices. The cost of moving in excess of the $1.00 per usable square foot
provided by the Landlord shall be funded by the Tenant.
D3 OPTION TERM.
Provided that no default exists under this Lease and provided no default shall
have existed within a period of one (1) year prior to the notification hereunder
by Tenant, Tenant shall have the right to extend the Initial Term of this Lease
for one (1) term of five (5) Lease Years (an "Option Term"), provided that
Tenant shall deliver to Landlord written notice of its election to extend the
Term of this Lease at least twelve (12) months prior to the expiration date of
the Initial Term of this Lease or the expiring Option Term, as the case may
be. Except as expressly otherwise provided herein, all the covenants,
agreements, terms and conditions contained herein shall remain in full force
and effect during the Option Term, and the rent shall be adjusted as below.
Base Rent for the Option Term shall be as follows: the rent for the Option Term
shall be at then prevailing market levels for comparable renewal space at the
Building but not, in any event, less than the Base Rent payable at the end of
the then current Term.
D4 TENANT AUDIT RIGHT.
Tenant shall have the right, at its sole cost and expense, to audit Landlord's
records at the Manager's office relating to Real Estate Taxes and Operating
Expenses for the Base Year and any subsequent year solely for the purpose of
determining the amounts paid by Tenant pursuant to Section 6 of this Lease.
However, Tenant may only conduct an audit (i) upon reasonable notice to Landlord
so as to allow landlord sufficient time to compile its records and make them
available to Tenant at Manager's office and upon reimbursement to Landlord for
its costs and expenses incurred in connection with such audit; (ii) not more
than sixty (60) days after Tenant receives the Annual Statement of Real Estate
Taxes and Operating Expenses for the subject year, regardless of whether the
year in question is the Base Year or any subsequent year, and (iii) not more
than once during any Lease Year.
D5 TENANT'S RIGHT TO CURE,
If Landlord shall default in any of its obligations under this Lease, Tenant
shall give written notice of such default to Landlord. Landlord shall cure any
material default within thirty (30) days after the date of such notice or, in
the event that such default is of a character as to require more than thirty
(30) days to cure, Landlord shall commence curing such default within thirty
(30) days and shall diligently pursue such cure. If any material default relates
to a condition that is for the exclusive benefit of the Premises and as a result
thereof Tenant is denied the use of the Premises and Landlord fails to cure such
default in all material respects within the applicable time period, Tenant shall
have the right to cure such default in a good and workmanlike manner and
Landlord shall reimburse Tenant within thirty (30) days of demand for its
reasonable costs in performing such work.
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D6 NON-DISTURBANCE.
In the event of subordination of this Lease, the subordination shall be
conditioned upon the agreement of the mortgagee or lessor that in the event of
foreclosure or the assertion of any other rights under the mortgage or lease,
this Lease and the rights of Tenant hereunder shall continue in effect and shall
not be terminated or disturbed so long as Tenant continues to perform and no
Event of Default exists under this Lease.
Approved by Tenant:
SYNTEL, INC., A MICHIGAN CORPORATION
BY: Xxxxxx Xxxxx
----------------------------------
Signature
Printed Name: Xxxxxx Xxxxx
------------------------
Its: President
---------------------------------
Date: August 29, 1996
--------------------------------
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