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EXHIBIT 10.21
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LEASE
BETWEEN
WRC PROPERTIES, INC.,
AS LANDLORD
AND
NATIONAL TECH TEAM, 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...................................................5
SECTION 8. INSURANCE.........................................................7
SECTION 9. DAMAGE BY FIRE OR OTHER CASUALTY..................................8
SECTION 10. REPAIRS, RENOVATIONS AND ALTERATIONS.............................9
SECTION 11. LIENS...........................................................10
SECTION 12. EMINENT DOMAIN..................................................10
SECTION 13. ASSIGNMENT OR SUBLETTING........................................11
SECTION 14. INSPECTION OF PREMISES..........................................12
SECTION 15. FIXTURES AND EQUIPMENT..........................................12
SECTION 16. PARKING AREAS...................................................12
SECTION 17. NOTICE OR DEMANDS...............................................12
SECTION 18. BREACH; INSOLVENCY; RE-ENTRY....................................13
SECTION 19. SURRENDER OF PREMISES ON TERMINATION............................14
SECTION 20. PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT..............14
SECTION 21. SUBORDINATION; ESTOPPEL CERTIFICATES............................14
SECTION 22. QUIET ENJOYMENT.................................................15
SECTION 23. HOLDING OVER....................................................15
SECTION 24. REMEDIES NOT EXCLUSIVE; WAIVER..................................15
SECTION 25. WAIVER OF SUBROGATION...........................................15
SECTION 26. RIGHT TO SHOW PREMISES..........................................16
SECTION 27. INDEMNIFICATION.................................................16
SECTION 28. DEFINITION OF LANDLORD; LANDLORD'S LIABILIT.....................16
SECTION 29. SECURITY DEPOSIT AND SECURITY INTEREST..........................17
SECTION 30. RULES AND REGULATIONS...........................................17
SECTION 31. SIGNS AND ADVERTISING...........................................17
SECTION 32. GENERAL.........................................................18
EXHIBIT A SPACE PLAN........................................................20
EXHIBIT B RULES AND REGULATIONS OF THE PROJECT..............................21
EXHIBIT C DAILY JANITORIAL SERVICE..........................................24
EXHIBIT D SPECIAL PROVISIONS.................................................25
D1 EXCESS TENANT IMPROVEMENT COSTS.........................................25
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LEASE
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THIS LEASE is made and entered into as of November 16, 1995, by and
between WRC Properties, Inc. (the "Landlord"), a Delaware 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:
NATIONAL TECH TEAM, INC., a Delaware Corporation
Tenant Social Security/Taxpayer Identification Number: 00-0000000
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Tenant Standard Industrial Classification (SIC) Code Number: 7373, 7379, 8299, 7371
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(b) Tenant's Address: 00000 Xxxxxxxx Xxxxxx
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Xxxxxxxx, Xxxxxxxx 00000
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(c) Manager's Name REDICO Management, Inc.
and Address: 00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
(d) Project Name: Troy Officentre A-B
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Building Name: Xxxx Officentre B
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Building Address: 000 Xxxx Xxx Xxxxxx
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Xxxx, Xxxxxxxx 00000-0000
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(e) Premises: Floor: 1st
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Suite Number: 180
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Square Feet: 2,345 usf / 2,626 rsf
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(f) Term:
Scheduled Occupancy Date: January 1, 1996
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Scheduled Expiration Date of Initial Term: December 31, 1998
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Initial Term: Three (3) years
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(g) Base Rent:
Monthly $4,103.13
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Annual $49,237.56
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Aggregate $147,712.68
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(h) Tenant's Proportionate Share:
2,626 Rentable square feet in the Premises divided by
443,071 Rentable square feet in the Building =0.593%
(i) Number of Exclusive Parking Spaces: None at an initial increase
of additional rent of $ -0-
(j) Security Deposit: $ 3,950.00
(k) Tenant Improvement Allowance: See Exhibit D
(l) Base Year: 1996
(m) Permitted Use: General Office
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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 shall 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 ten (10) 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; (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, 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) eighteen (18%) percent
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(l)), 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, worker's 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 If the Project is not fully rented during all or a portion of any
year, then Landlord 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 may be 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 may 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.
6.03 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 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 property.
6.04 At any time after the Base Year 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.
6.05 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 property of any kind whatsoever located at, placed in or used in
connection with the Premises.
6.06 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 for ordinary lavatory
purposes. 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
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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.
6.07 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. To the extent electricity is not separately metered
for the Premises, Landlord shall make a determination of Tenant's usage of
electricity supplied to the Building, and Tenant agrees to pay for such
electricity within thirty (30) days after request therefor from Landlord.
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.
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. 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 by the State of Michigan or and 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 in 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. 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. 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 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.
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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.
Tenant's obligations under this Section 7 with respect to any environmental
condition shall not be applicable to the extent that such environmental
condition (a) exists prior to the commencement of the initial term of this
Lease or (b) results from (i) the actions or omissions of Landlord either
before the commencement of this Lease, during the term hereof or after the
termination of this Lease, or (ii) the actions or omissions of any preceding or
succeeding tenant or owner of the Premises, or (iii) the actions or omissions
of any person or entity who or which is not a subtenant, employee, agent,
invitee, customer, visitor, licensee, contractor or designee of Tenant
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. 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, 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 amount so as to avoid the imposition of any co-insurance penalty in
the event of a loss. Such insurance
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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 fifteen (15) 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 fails to maintain such insurance in accordance
with the requirements hereof, then after giving one (1) 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, 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. Landlord shall, during the Term hereof, keep in full force and
effect the following insurance: (a) Comprehensive General Liability or
Commercial General Liability Insurance with respect to common areas and
Landlord's operation of the Building for bodily injury, including death, and
damage to property of others; (b) Standard "All Risk Insurance" for physical
loss or property damage insurance in respect of the Building but excluding
Tenant's trade fixtures, equipment, personal property and any additional
improvements which Tenant may construct thereon, together with such insurance
as Landlord, in its sole discretion, elect to obtain. Insurance effected by
Landlord shall be in amounts and be subject to such deductibles and exclusions
and on such terms and conditions as Landlord shall from time to time determine
reasonable and sufficient. Notwithstanding the above, Landlord reserves the
right to self-insure all or some of the risk.
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
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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.
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
pursuant to Paragraphs 9.01 and 9.02 above shall render the Premises
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, 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
rendered untenantable to the entire floor area of the Premises.
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 and plumbing
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. 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
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trade fixtures installed at the expense of Tenant, shall be and shall remain
the property of Landlord, and shall be surrendered with the Premises at the
termination of this Lease, without molestation or injury. In addition,
Landlord may designate by written notice to Tenant the alterations, additions,
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.
Such written notice relating to the Tenant Improvement's provided by the
Landlord at the commencement of the Lease must be provided in writing by
Landlord to Tenant within one (1) year of Lease Commencement Date.
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.
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) 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 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.
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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, 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. Any attempted subletting or
assignment without Landlord's consent 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 reasonable 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.
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.
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SECTION 14.
INSPECTION OF PREMISES
14.01 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 and
equipment 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 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
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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 when due; (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; (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, 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.
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 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 Landlord shall be entitled to recover reasonable attorneys' fees in
any action to enforce the terms of this Lease. 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.
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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, 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. 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.
At the expiration of the Lease term, Tenant shall yield and deliver the
Premises to Landlord in the improved condition as when it was taken,
except for reasonable use and wear thereof and insured repairs, and 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 by Tenant. 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.
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 five (5) 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,
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. See Exhibit D, Special Provision D-2.
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
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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 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
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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.
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.
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.
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SECTION 29.
SECURITY DEPOSIT AND SECURITY INTEREST
29.01 Upon execution hereof, Tenant shall deliver to Landlord cash in the
amount set forth in Paragraph 1.01(j), above, which Landlord is to retain as
security for the faithful performance of all the covenants, conditions and
agreements of this Lease, but in no event shall Landlord be obligated to apply
the same upon rents or other charges in arrears or upon damages for Tenant's
failure to perform the said covenants, conditions, and agreements; Landlord may
so apply the security at its option, and Landlord's right to the possession of
the Premises for nonpayment of rent or for any other reason shall not in any
event be affected by reason of the fact that Landlord holds this security. The
said sum, if not applied toward the payment of rent in arrears or toward the
payment of damages suffered by Landlord by reason of Tenant's breach of the
covenants, conditions and agreements of this Lease, is to be returned, without
interest thereon, to Tenant when this Lease is terminated, and fully performed
by Tenant, according to these terms, and in no event is the said security to be
returned until Tenant has vacated the Premises and delivered possession to
Landlord.
29.02 In the event that Landlord repossesses the Premises because of
Tenant's default or because of Tenant's failure to carry out the covenants,
conditions and agreements of this Lease, Landlord may apply the said security
upon all damages suffered to the date of said repossession and may retain the
said security to apply upon such damages as may be suffered or shall accrue
thereafter by reason of Tenant's default or breach. Landlord shall not be
obligated to keep the said security as a separate fund, but may mix the said
security with its own funds. In the event Landlord shall use any part of the
Security Deposit, Tenant shall, upon demand, deposit with Landlord the full
amount so used, in order that Landlord shall have the full Security Deposit on
hand at all times during the Term of this Lease. In the event of a sale or
lease of the Building and the transfer of the Security Deposit to the purchaser
or lessee, Landlord shall be released from all liability for the return of the
Security Deposit. Tenant shall have no legal power to assign or encumber the
Security Deposit herein described.
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 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.
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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 (10) 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 following Tenant's notice to
Landlord of termination.
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 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
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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.
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., NATIONAL TECH TEAM, INC.,
a Delaware Corporation a Delaware Corporation
By: By:
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Xxxxxxxx X. Xxxxxxxx X.X. Xxxxx
Its: Assistant Secretary Its: COO
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EXHIBIT A
SPACE PLAN
[PLAN]
Approved by Tenant:
NATIONAL TECH TEAM, INC., a Delaware Corporation
X.X. Xxxxx, COO
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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. No vending machine shall be
operated in the Building by any tenant without the prior written consent of
Landlord.
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.
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 elevator(s), 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 doors 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.
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. 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.
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.
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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 through Tenant
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:
NATIONAL TECH TEAM, INC., a Delaware Corporation
X.X. Xxxxx, COO
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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:
NATIONAL TECH TEAM, INC., a Delaware Corporation
X.X. Xxxxx, COO
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EXHIBIT D
SPECIAL PROVISIONS
D1 EXCESS TENANT IMPROVEMENT COSTS.
Landlord shall construct the Tenant Improvements up to a cost of
$46,250.00 (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 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:
NATIONAL TECH TEAM, INC., a Delaware Corporation
X.X. Xxxxx, COO
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