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EXHIBIT 10.27
DEARBORN ATRIUM OFFICE CENTER
LEASE
This Lease is made between the Landlord and Tenant hereinafter
identified in Sections 1(b) and 1 (c) hereof, respectively, and constitutes a
Lease between the parties of the "DEMISED PREMISES" in the "BUILDING," as
defined in Sections 2.2 and 2.1 hereof, respectively, on the terms and
conditions and with and subject to the covenants and agreements of the parties
hereinafter set forth.
WITNESSETH:
1 . Basic Lease Provisions.
The following are certain basic lease provisions, which are part of, and in
certain instances referred to in subsequent provisions of, this Lease:
(a) Date of this Lease November 18, 1996
(b) Landlord: DEARBORN ATRIUM ASSOCIATES LIMITED PARTNERSHIP, a
Michigan limited partnership
(c) Tenant NATIONAL TECH TEAM, INC., a Delaware corporation
(d) Demised Premises: Suites 100, 145, 160, 185, 195, 200 and 295,
comprising 54,859 square feet of floor area, including a 9%
common area factor, all located in a building at 000 Xxxxx,
Xxxxxxxx, Xxxxxxxx
XXXXX XX. XXXXXXX XX. FT. LEASABLE SQ. FT. (9% FACTOR)
--------- ---------------- ---------------------------
Xxxxx 000 5,985 6,524
Xxxxx 000 2,490 2,714
Suite 185 740 807
Suite 195 2,525 2,752
Xxxxx 000 6,473 7,056
------ ------
Subtotal 18,213 19,853
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Suite 160 4,424 4,822
Suite 200 27,692 30,184
------ ------
Subtotal (160 & 200) 32,116 35,006
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TOTALS 50,329 54,859
====== ======
At present, Tenant occupies all but Suites 160 and 200 in the
Building (the currently occupied space being referred to in
this Lease as the "EXISTING SPACE"), under several Leases dated
variously August 17, 1988 (Suite 100), May 5, 1993 (Suite 145),
October 1 0, 1992 (Suite 185), August 31, 1992 (Suite 195) and
September 8, 1993 (Suite 295) (together the "OLD LEASES") which
Old Leases shall be superseded in their entirety with respect to
the existing Space effective on and from and after the
Commencement Date (and shall continue pursuant to its terms until
the Commencement Date). Tenant also occupies certain space in a
separate building located at 00000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx (the "SEPARATE SPACE"), under a lease with another
landlord (the "SALISBURY BUILDING LEASE"), which will by its own
terms expire on March 31, 1997, and under which Tenant shall
continue to be entitled to possession through that date
(regardless of whether or not it has vacated that space and moved
to the Demised Premises). The Basic Rental hereafter provided in
Section 5.1 hereof has been adjusted by providing for a deduction
from that Basic Rent all rent and additional rent which Tenant is
required to pay under the Salisbury Building Lease for the
Separate Space between the Commencement Date and March 31, 1996.
(e) Anticipated Commencement Date January 1, 1997
(f) Expiration Date: March 31, 2006 (the period between the
Commencement Date and the Expiration Date being the "TERM" of
this Lease)
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(g) Basic Rental: $16.00 per square foot ($877,744.00/Lease Year;
$73,145.33/month), plus all utilities (except for the months of
January-March, 1997, as provided in Section 5.1 hereof)
(h) Base Expenses: 1997 Base Year (i.e., expenses incurred during or
accrued with respect to calendar year 1997 - being the first "LEASE
YEAR")
(i) Base Taxes: 1997 Base year (i.e., Taxes incurred or assessed for or
with respect to the first Lease Year)
(j) Tenant's Share: 54,859/118,298 = 46.37%
(k) Tenant's Use: General office and classrooms
(l) Deposit: None
(m) Tenant's Address for Notices: National Tech Team, Inc.
000 Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
(n) Landlord's Address for Notices: Dearborn Atrium Associates Limited
Partnership
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(o) Guarantor: None
(p) Guarantor's Address for Notices: N/A
2. Building and Demised Premises.
2.1. Landlord is the owner of certain land and improvements, more
particularly described on Exhibit A hereto, at 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx, upon which Landlord has constructed a building (hereinafter referred
to as the "BUILDING"), consisting of three stories and 118,298 sq. feet of
interior floor area, together with certain interior and exterior common and
public areas and facilities, as well as exterior on-grade parking areas
(hereinafter referred to as the "COMMON AREAS") as may be designated by Landlord
for use by tenants of the Building, and their employees, guests, customer's or
prospective customers, agents and invitees. The Building, parking deck and
parking areas (hereinafter referred to as the "PARKING AREAS") and all Common
Areas and appurtenance are hereinafter collectively referred to as the
Development. Except as specifically provided in Section 42 hereof, this Lease
does not grant Tenant any rights to utilize the Interior Parking Areas.
2.2. Subject to the terms, covenants, agreements and conditions herein
set forth, Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises (herein referred to as the "DEMISED PREMISES')
designated in Section 1(d) hereof, as shown on the floor plan(s) attached
hereto as Exhibits B-1 and B-2, together with the nonexclusive right to use the
Common Areas and the Parking Areas, including 93 parking spaces reserved for
Tenant's use within the Parking Areas (as provided in Paragraph 42, below).
2.3. Landlord reserves (a) the right from time to time to make
changes, alterations, additions, improvements, repairs or replacements in or to
the Building (including the Demised Premises) and the fixtures and equipment
thereof, as well as in or to the street entrances, halls, passages, elevators,
escalators and stairways and other parts of the Building, and to erect,
maintain, and use pipes, ducts and conduits in and through the Demised Premises,
all as Landlord may reasonably deem necessary or desirable; and (b) the right to
eliminate, substitute and/or rearrange the Common Areas (which may theretofore
have been so designated) as Landlord deems appropriate in its discretion.
Tenant's nonexclusive right to utilize the Common Areas shall be in common with
Landlord, other tenants and occupants of the Building and others to whom
Landlord grants such rights from time to time.
2.4. [INTENTIONALLY OMITTED]
3. Term.
3.1. The Term shall commence on that date (hereinafter referred to as
the "COMMENCEMENT DATE") being the later to occur of the "ANTICIPATED
COMMENCEMENT Date" set forth in Section 1(e) hereof
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and the date Landlord has substantially completed the improvements to be
constructed or installed by Landlord pursuant to the provisions of Exhibit C
hereto as provided in Section 4 hereof and, unless sooner terminated as
hereinafter provided, shall end on the "EXPIRATION DATE" set forth in Section 1
(f) hereof: provided, however, that if Tenant, with Landlord's prior written
approval, shall take occupancy of the Demised Premises for any purpose
whatsoever prior to the Commencement Date, as defined above, the Commencement
Date shall be deemed to have occurred on the earlier date Tenant takes such
occupancy.
3.2. If Landlord, for any reason whatsoever, cannot deliver possession
of the Demised Premises to Tenant on the Anticipated Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, except as otherwise provided in this
Lease, and the Expiration Date shall not be affected. Tenant may continue to
occupy the Existing Space at the current rental rate applicable under the
Existing Leases until the Commencement Date, even if later than March 31, 1996.
Notwithstanding the foregoing, if possession of the Demised Premises has not
been delivered to Tenant within six (6) months following the Anticipated
Commencement Date, either Landlord or Tenant, at its option at any time within
thirty (30) days thereafter, but prior to the delivery of possession, may
terminate this Lease by and upon written notice to the other, and Landlord and
Tenant shall thereupon be released from all obligations under this Lease.
4. Completion of Improvements.
Except as provided in Section 3.2 hereof, prior to the Anticipated
Commencement Date, Landlord shall complete the floor(s) on which the Demised
Premises are located and shall construct or install in the Demised Premises the
improvements to be constructed or installed by Landlord pursuant to the
provisions of Exhibit C hereto, provided that Landlord shall not be required to
incur overtime costs and expenses in performing such construction and/or
installation. Landlord shall construct all improvements included on the
attached Exhibit C, at Landlord's sole cost and expense, subject to the
following:
4.1. Landlord shall provide for renovation of suites 100, 145, 185,
195 and 295 (i.e., painting and similar cosmetic work) as reasonably directed by
Tenant, up to a maximum cost allowance of $2.00/sq. ft. (19,853 sq. ft. x
$2.00/sq. ft. = $39,706 renovation allowance), and additional renovation
services beyond that amount only to the extent paid for by Tenant under
arrangements satisfactory to Landlord in the exercise of its reasonably
judgment.
4.2. Landlord shall construct within Suites 160 and 200 those
improvements provided on the attached Exhibit C, up to a maximum cost allowance
of up to $15.00/square foot (35,006 sq. ft. x $15.00/sq. ft. = $525,090 maximum
improvement allowance), and additional construction beyond that amount only to
the extent paid for by Tenant under arrangements satisfactory to Landlord.
Tenant shall construct or install in the Demised Premises all improvements and
work required and not to be performed by Landlord pursuant to Exhibit C hereto,
all as more particularly set forth on Exhibit C hereto. The Demised Premises
shall be deemed completed and possession delivered to Tenant when Landlord has
substantially completed its improvements subject only to the completion of
details of construction, decorations and mechanical adjustments which do not
materially interfere with Tenant's use of the Demised Premises, and a temporary
or final certificate of occupancy has issued with respect to the Demised
Premises permitting Tenant to take occupancy thereof, and Tenant shall accept
the same upon notice from Landlord that such improvements have been so completed
and Tenant shall commence Tenant's work upon, and not before, the receipt of
such notice. If any dispute shall arise as to whether Landlord has completed
its improvements, a certificate furnished by Landlord's architect certifying the
date of such completion shall be conclusive and binding of that fact and date
upon Landlord and Tenant. Within thirty (30) days after Tenant occupies the
Demised Premises, Tenant shall compile a punch list of Landlord's work which
Tenant considers yet to be fully and/or properly performed and/or completed by
Landlord. Failure to present such a list shall be conclusively deemed to
constitute Tenant's acceptance of all such work (and Tenant shall provide
Landlord with a written acknowledgment of that acceptance thereafter upon
Landlord's request). Landlord shall complete and/or correct those items on the
punchlist which are within its responsibility and obligation under Exhibit C
within sixty (60) days after receiving that punch list. If not so completed by
Landlord, Tenant may separately provide for their completion and shall, upon
presentation to Landlord of reasonable evidence of the reasonable and necessary
direct cost and expense thereof, be entitled to reimbursement therefor from
Landlord. If not so reimbursed within 15 days thereafter, Tenant may deduct the
amount thereof from the next sums coming due under this Lease with respect to
Basic Rental. Landlord shall advise Tenant of the anticipated date of
completion at least thirty
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(30) days prior thereto, but the failure to give such notice shall not
constitute a default hereunder by Landlord. In the performance of Tenant's
work, Tenant shall engage the services of such licensed contractor(s) who will
work in harmony with Landlord's contractors and the contractors employed by the
other tenants so that there shall be no labor disputes which would interfere
with the operation, construction and completion of the Building. Upon
completion of Landlord's work, or at any other time after the Commencement Date
upon Landlord's request, Tenant shall provide Landlord with a written
acknowledgment of the completion and its acceptance of Landlord's work, or state
with specificity which elements thereof Tenant claims to be yet unperformed or
improperly performed and the elements or steps necessary to complete or correct
that work.
5. Rental.
5.1. Except as specifically provided in this Section 5.1, Tenant shall
pay to Landlord as rental for the Demised Premises the Basic Rental set forth in
Section 1 (g) hereof, which shall be payable in equal monthly installments in
advance, together with the rentals provided for in Section 5.3 hereof. For that
portion of each month during the Term of this Lease which falls between January
1 , 1996 and March 31, 1996, Tenant shall pay, as Basic Rent, an adjusted
monthly sum equal to $73,145.33/month less all sums which Tenant shall actually
to pay as rental on a current basis for those corresponding months (including
all additional rental, if any) to its landlord under and with respect to the
Salisbury Lease.
5.2. The following terms shall have the following meanings.
(a) The term "EXPENSES" shall mean the actual cost incurred by Landlord
with respect to the operation, maintenance, repair and replacement and
administration of the Development, including, without limitation or duplication,
(1) the costs incurred for heating and air conditioning of common areas;
mechanical ventilation; heating; cleaning (including janitorial services);
rubbish removal; snow removal; general landscaping and maintenance; parking lot,
parking deck (net of any rental, cost reimbursement or other compensation
received by Landlord from the owner or tenants of the adjacent building located
at 00000 Xxxxxxxx Xxxx - the Salisbury Building - which also uses that parking
deck) and any additional parking services; window washing, elevators,
escalators, xxxxxx and matron services, electric current for Common Areas;
management fees; protection and security services; repairs, replacement, and
maintenance; fire, extended coverage, boiler, sprinkler, apparatus, public
liability and property damage insurance (including loss of rental income
insurance); supplies; wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance respecting service and
maintenance employees and management staff; accounting and administrative staff;
uniforms and working clothes for such employees and the cleaning thereof;
expenses imposed pursuant to any collective bargaining agreement with respect to
such employees; payroll, social security, unemployment and other similar taxes
with respect to such employees and staff; sales, use and other similar taxes;
Landlord's Michigan Single Business Tax water rates and sewer charges;
advertising, public relations and promotions; depreciation of movable equipment
and personal property, which is, or should be, capitalized on the books of
Landlord, and the cost of movable equipment and personal property, which need
not be so capitalized, as well as the cost of maintaining all such movable
equipment, and any other costs, charges and expenses which, under generally
accepted accounting principles and practices, would be regarded as maintenance
and operating expenses, and (2) the cost of any capital improvements made to the
Building by Landlord after the Commencement Date that are intended to reduce
other Expenses, or made to the Building by Landlord after the date of this Lease
that are required under any governmental law or regulation that was not
applicable to the Building at the time a was constructed, such cost to be
amortized over such reasonable period as Landlord shall determine, together with
interest on the unamortized balance at the rate of two percent (2%) in excess of
the then current "prime rate" of National Bank of Detroit (as defined in Section
5.5 hereof) or such higher rate as may have been paid by Landlord on funds
borrowed for the purpose of constructing such capital improvements. Expenses
shall not include "Taxes," as defined in Section 5.2(d) hereof; depreciation on
the Building other than depreciation on standard exterior window coverings
provided by Landlord and carpeting in Common Areas and other than as set forth
above; costs of services or repairs, replacements and maintenance which are paid
for by proceeds of insurance, by other tenants (in a manner other than as
provided in Section 5.3 hereof); or third parties; tenant improvements, real
estate brokers' commissions, interest and capital items other than those
referred to in clause (2) above, and those other exclusions from Expenses which
are described in the attached Exhibit F.
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It is the specific intention of both Landlord and Tenant (i) that all
Expenses will be determined on a basis which will not unfairly allocate
Additional Expenses to either Landlord or Tenant, (ii) that Tenant shall pay as
Tenant's Share its fairly allocated portion of Additional Expenses which are
variable in amount based on the level of occupancy in the Building, and (ii)
that Tenant's Share of Additional Expenses which do not vary based on occupancy
within the Building not be greater or lesser because of different levels of
Building Occupancy. The following two examples illustrate the parties' concerns
in this regard:
(A) Where Landlord's cost for cleaning and janitorial services
(included in Expenses) are based on Building square footage of occupied
space, Tenant's Share should reflect those costs related to its pro-rata
share of Common Area cleaning and janitorial services plus its respective
costs for those services rendered to its own Demised Premises. If the
Building is less than 100% leased, however, simply allocating Tenant's
Share of those Additional Expenses on a percentage basis will not charge to
Tenant its fairly allocable share of the incremental increase, and will
result in Landlord actually paying at least a portion of the increase in
the cost of providing those services to Tenant. Moreover, the share
allocated to Tenant in each Lease Year could in the same manner depend on
the relative levels of occupancy in the Building during those Lease Years,
producing different levels of allocated Expenses in different Lease Years
even if the actual expenses incurred with respect to the Demised Premises
stayed precisely the same.
(B) Where Landlord incurs a truly Common Area Expense (i.e., not
allocable to leasable premises within the Building), Tenants actual cost
incurred as an Additional Expense should not vary based on the impact of
relative levels of occupancy, rather only on the amount of general Expense
itself. Therefore, if Landlord restripes only that portion of a parking
lot which is in proportion to a partial occupancy level in the Building, no
mechanism in the Lease should recalculate that Expense for allocation to
Tenant at a higher amount premised on an assumption of full occupancy and
the restriping of the entire parking lot, or for any other reason.
Thus, In determining both Base Expenses and Expenses for the purpose of
calculating Additional Expenses to be paid by Tenant under this Lease, the
following shall apply: (x) if less than 100% of the Building's total leasable
area (computed in the same manner as space in both the Premises and the Building
has been determined under this Lease) shall have been occupied by tenants and
fully used by them at any time during that Lease Year, Expenses which are
dependent upon or calculated based upon occupied and/or utilized area within the
Building shall be deemed to be increased to an amount equal to those Expenses
which would normally be expected to be incurred if that occupancy had been 100%
and all leasable space within the Building was fully utilized during that
period; and (y) if Landlord does not furnish any particular work or service (the
cost of which if performed by Landlord would otherwise be a proper Expense and
for which Landlord's cost is incurred on the basis of the leasable area for
which that work or service is rendered) to a tenant which has undertaken to
perform that work or service in lieu of Landlord, Expenses shall be deemed
increased by an amount equal to the Additional Expense which would reasonably
have been incurred by Landlord during that period if it had at its own cost
furnished that work or service to that tenant. However, where the foregoing
adjustments shall specifically involve cleaning or janitorial services, or other
services which are incurred on the basis of leasable area for which those
services within the Building are rendered, if a tenant of the Building shall
(pursuant to its lease) receive no such services, Tenants Share shall, insofar
as it addresses those services, be computed by excluding from the denominator of
the fraction by which Tenant's Share is computed the leasable area (including
common area factor) of those premises and not imputing to the actual Expenses to
be allocated any cost in addition to the actual Expense incurred.
(b) The term "BASE EXPENSES" shall mean the amount per square foot set
forth in Section 1 (h) hereof.
(c) The term "ADDITIONAL EXPENSES" shall mean the total dollar
increases, if any, over the Base Expenses paid or incurred by Landlord in the
respective calendar year, provided that Tenant's Share of Additional Expenses
shall not exceed in the aggregate $0.50/sq. ft./Lease Year (i.e., $27,430/Lease
Year) on a cumulative basis, commencing in 1998 (i.e., the annual cap shall be
cumulated beginning in the second Lease Year through the ninth Lease Year,
producing a cap of $0.50/sq. ft. during the second Lease Year and $4.00/sq. ft.
in the aggregate during the ninth Lease Year).
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(d) The term "TAXES" shall mean the amount incurred by Landlord of
all ad valorem real property taxes and assessments, special or otherwise,
levied upon or with respect to the Development, or the rent and additional
charges payable hereunder, imposed by any taxing authority having
jurisdiction. Taxes shall also include all taxes, levies and charges which
may be assessed, levied or imposed in replacement of, or in addition to, all
or any part of ad valorem real property taxes as revenue sources, and which
in whole or in part are measured or calculated by or based upon the
Development, the freehold and/or leasehold estate of Landlord or Tenant, or
the rent and other charges payable hereunder. Taxes shall include any
expenses incurred by Landlord in determining or attempting to obtain a
reduction of Taxes.
(e) The term "BASE TAXES" shall mean the amount per square foot
set forth in Section 1(i) hereof.
(f) The term "ADDITIONAL TAXES" shall mean the total dollar
increase, if any, over the Base Taxes paid or incurred by Landlord in the
respective calendar year.
(g) The term "TENANT'S SHARE" shall mean the percentage set forth
in Section 1 (j) hereof. Tenant's Share has been computed on the basis of the
square foot area of the Demised Premises divided by the total leasable square
foot area of the Building (including the Demised Premises). In the event the
square foot area of the Demised Premises or the leasable square foot area of
the Building shall be determined to differ from that utilized in computing
Tenant's Share, Tenant's Share shall be adjusted accordingly.
5.3.
(a) Commencing with the second Lease Year, on January 1, 1998, and
continuing during the balance of the Term thereafter, Tenant shall pay to
Landlord as Additional Rent Tenant's Share of Additional Expenses and
Additional Taxes in the manner and at the times herein provided.
(b) With respect to Additional Expenses, prior to the beginning of
each calendar year commencing January 1, 1998, or as soon thereafter as
practicable, Landlord shall give Tenant notice of Landlord's estimate of
Tenant's Share of Additional Expenses for the ensuing calendar year (prorated
for any partial Lease Years), and with respect to Additional Taxes, prior to
the beginning of each calendar year thereafter, or as soon thereafter as
practicable, Landlord shall give Tenant notice of Landlord's estimate of
Tenant's Share of Additional Taxes for the ensuing calendar year. On or before
the first day of each month during the ensuing calendar year, Tenant shall pay
to Landlord one-twelfth (1/12th) of such estimated amounts, provided that until
such notice is given with respect to the ensuing calendar year, Tenant shall
continue to pay the amount currently payable pursuant hereto until after the
month such notice is given. If at any time or times (including, without
limitation, upon Tenant taking occupancy of the Demised Premises) it appears to
Landlord that Tenant's Share of Additional Expenses or Tenant's Share of
Additional Taxes for the then current calendar year, will vary from Landlord's
estimate by more than five percent (5%), Landlord may, by notice to Tenant,
revise its estimate for such year and subsequent payments by Tenant for such
year shall be based upon such revised estimate.
Within ninety (90) days after the close of each calendar year, or as
soon after such ninety (90) day period is practicable, Landlord shall deliver
to Tenant a statement prepared by Landlord of Tenant's Share of Additional
Expenses and Additional Taxes, respectively, for such calendar year,
respectively. If on the basis of either of such statements, Tenant owes an
amount that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall credit such excess amount against the
next payment(s) due from Tenant to Landlord of Additional Expenses or
Additional Taxes, as the case may be. If on the basis of such statement,
Tenant owes an amount that is more than the estimated payments for such
calendar year previously made by Tenant, Tenant shall pay the deficiency to
Landlord within the later of (i) the date when the next regular monthly of
installment of Basic Rent is due hereunder or (ii) fifteen (15) days after
delivery of such statement.
The statement prepared by Landlord and delivered to Tenant regarding
Tenant's Share of Additional Expenses and Additional Taxes shall be accompanied
by (i) copies of the tax bills serving as the basis of the determination of
Tenant's Share of Taxes, and (ii) a breakdown of all expenses (summarized by
category) for which Landlord seeks Tenant's reimbursement, together with a
calculation of Tenant's Share thereof. Tenant shall have the right, at its own
expense, to examine Landlord's books and records wiht respect to the foregoing
(limited to those necessary to verify the Additional Expenses and the Taxes
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incurred), upon providing Landlord with at least 15 days prior written notice
and upon payment to Landlord for the reasonable third party expenses directly
incurred by Landlord in the conduct of that inspection, if any. The inspection
shall be conducted at a place designated by Landlord and in a manner which does
not disrupt the conduct of Landlord's business or the management of the affairs
of the Development.
(c) If this Lease shall commence on a day other than the first day of
such calendar year, Tenant's share of Additional Expenses that is applicable to
the year in which such commencement shall occur shall be prorated on the basis
of the number of calendar days within such year as are within the Term. If this
Lease shall terminate on a day other than the last day of a calendar year,
Tenant's Share of Additional Taxes that is applicable to the calendar year in
which such termination shall occur shall be prorated on the basis of the number
of calendar days within such year as are within the Term.
5.4. The installment of the Basic Rental provided for in Section 5.1
hereof for the first full month of the Term shall be paid by Tenant to Landlord
upon commencement of the Lease Term. Basic Rental shall be paid to Landlord on
or before the first day of each and every successive calendar month in advance
after the first month during the Term. In the event the Commencement Date is
other than the first day of a calendar month, or the Expiration Date is other
than the last day of the calendar month, then the monthly rental for the first
and last fractional months of the Term shall be appropriately prorated.
5.5. Tenant shall pay as Additional Rent any money and charges
required to be paid by Tenant pursuant to the terms of this Lease, whether or
not the same may be designated "Additional Rent."
5.6. Except as otherwise specifically provided to the contrary under
the terms of this Lease or other written agreement between Landlord and Tenant
specifically regarding this Lease, Basic Rental and Additional Rental shall be
paid to Landlord without notice or demand and without deduction or offset, in
lawful money of the United States of America at Landlord's address for notices
hereunder or to such other person or at such other place as Landlord may from
time to time designate in writing. All amounts payable by Tenant to Landlord
hereunder, if not paid when due, shall bear interest from the due date until
paid at the rate equal to two percent (2%) in excess of the then current "prime
rate" of National Bank of Detroit, but not in excess of the highest rate
permitted by law. Such prime rate shall be the rate announced by such Bank as
its "PRIME RATE"; if no such prime rate is announced, the prime rate shall be
deemed to be fifteen percent (15%).
6. Other Taxes Payable by Tenant.
In addition to the monthly rental and other charges to be paid by Tenant
hereunder, Tenant shall reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes and taxes included within
Taxes) whether or not now customary or within the contemplation of the parties
hereto: (a) upon, measured by or reasonably attributable to the cost or value of
Tenants equipment, furniture, fixtures and other personal property located in
the Demised Premises or by the cost or value of any leasehold improvements made
in or to the Demised Premises by or for Tenant, other than building standard
tenant improvements made by Landlord, regardless of whether title to such
improvements shall be in Tenant or Landlord; (b) upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Demised Premises or any portion thereof; and (c)
upon this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Demised Premises, excluding taxes
associated with Landlord's sale or transfer of the Development or any part
thereof or any interest therein. In the event that it shall not be lawful for
Tenant so to reimburse Landlord, the monthly rental payable to Landlord under
this Lease shall be revised to net to Landlord the same rental after imposition
of any such tax upon Landlord as would have been payable to Landlord prior to
the imposition of any such tax
7. Use.
7.1. The Premises shall be used only for the purposes of "TENANT'S
USE" as set forth in Section 1(k) hereof, and for no other purpose or purposes
whatsoever.
7.2. Tenant shall not do or permit to be done in or about the Demised
Premises, nor bring or keep or permit to be brought or kept therein, anything
which is prohibited by or will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated, or which is prohibited by the standard form of fire
insurance policy, or will in any way increase the existing rate of or affect any
fire or other insurance upon the Building or any of its contents,
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or cause a cancellation of any insurance policy covering the Building or any
part thereof or any of its contents, or adversely affect or interfere with any
services required to be furnished by Landlord to Tenant, or to any other
tenants or occupants of the Building, or with the proper and economical
rendition of any such service. Tenant shall not do or permit anything to be
done in or about the Demised Premises which will in any way obstruct or
interfere with the rights of other tenants of the Building, or injure or annoy
them, or use or allow the Demised Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Demised Premises or commit or suffer to
be committed any waste in, on or about the Demised Premises. If anything done,
omitted to be done or suffered to be done by Tenant, or kept or suffered by
Tenant to be kept in, upon or about the Demised Premises shall cause the rate
of fire or other insurance on the Building in companies acceptable to Landlord
to be increased beyond the minimum rate from time to time applicable to the
Building, Tenant shall pay the amount of any such increases. Tenant shall not
cause or permit the use, generation, storage or disposal in or about the
Demised Premises or the Building of any substances, materials or wastes subject
to regulation under federal, state or local laws from time to time in effect
concerning hazardous, toxic or radioactive materials, unless Tenant shall have
received Landlord's prior written consent, which Landlord may withhold or at
any time revoke in its sole discretion. Tenant hereby covenants to indemnify
and hold Landlord, its successors and assigns, harmless from any loss, damage,
claims, costs, liability or cleanup costs arising out of Tenant's use,
handling, storage or disposal of any such hazardous, toxin or radioactive
materials on the Demised Premises.
8 Services.
8.1. Landlord shall maintain the Common Areas including any
lobbies, stairs, elevators, corridors and restrooms, together with the windows
and exterior walls, roofs, foundations and structure itself of the Building and
the mechanical, plumbing and electrical equipment servicing the Building,
parking deck and parking lot, in good order and condition as reasonably
determined by Landlord and the cost shall be included in Expenses, except for
the repairs due to fire and other casualties (to the extent the cost of such
repairs are covered by insurance proceeds) and for the repair of damages
occasioned by the acts or omissions of Tenant, which Tenant shall pay to
Landlord in full.
8.2. Landlord will arrange for the furnishing of heat and
electricity (including electricity for air conditioning) to the Demised
Premises, and Landlord shall elect either: (i) to charge Tenant for
electricity as determined by metering at the applicable secondary rates filed
by Landlord with the proper regulating authorities in effect from time to time
covering such services, but not more than the secondary rates which would be
charged to Tenant by the public utility company; or (ii) to charge Tenant for
electricity based upon engineering surveys of the Demised Premises and the use
by Tenant thereof, including, at the option of Landlord, periodic spot check
demand and/or consumption metering by Landlord. Such charge to Tenant for
electricity shall be payable in monthly installments together with Basic Rental
in the amount invoiced to Tenant. In the event that Landlord shall fail to pay
to the providing utility any charges for utility services provided to the
Development, and as a result thereof that utility provider shall either make a
demand upon Tenant to pay the same or threaten to interrupt utility service to
the Demised Premises or the Common Areas of the Development, Tenant shall (upon
at least ten [101 days prior written notice to Landlord) have the right to pay,
within the five day period prior to any threatened shut-off, all utility
expenses which the utility provider demands in order to avoid any such shut-off
(and regardless of whether or not they apply to other areas within the
Development), those charges directly to the demanding utility provider, and
shall have the further right to offset any such payment against the next
installment(s) of Basic Rental and/or Additional Rent falling due hereunder.
Engineering surveys shall be performed by independent licensed professional
electrical engineering consultants selected by Landlord. From time to time
during the Term, Landlord may inspect the Demised Premises in order to evaluate
Tenants kilowatt hour electric consumption and demand, and if as a result of
such inspection, the amount charged to Tenant shall change because of changes
in demand and/or consumption, or in the cost of electricity to Landlord,
Landlord shall notify Tenant and commencing with the first day of the next
calendar month, Tenant shall pay such revised charge in monthly installments.
Notwithstanding anything herein contained to the contrary, Landlord reserves
the right to terminate the furnishing of electricity at any time upon thirty
(30) days notice to Tenant, in which event Tenant shall make application
directly to the utility company servicing the Building for Tenant's separate
supply of electric current, and Landlord shall permit its wires and conduits to
be used for such purposes, to the extent available and capable of being used
safely.
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8.3. At Tenant's cost, Landlord shall furnish the Demised Premises
with (a) heat, ventilation and air conditioning to the extent required for the
occupancy of the Demised Premises to standards of comfort and during such hours
in each case as reasonably determined by Landlord for the building (which
hours, until Landlord shall otherwise designate, shall be from 8:00 a.m. to
6:00 p.m. on weekdays and from 8:00 a.m. to 12:00 p.m. on Saturdays; in each
case except holidays), or as may be prescribed by any applicable policies or
regulations adopted by any utility or governmental agency, (b) elevator
service, and (c) janitorial service only to the areas of the Demised Premises
used for office purposes during the times and in the manner that services are
furnished in comparable first class office buildings in the area, provided that
Landlord shall not provide janitorial services to any portion of the Demised
Premises used for other than office purposes such as preparing, dispensing
or consumption of food or beverages or as an exhibition area or for storage,
shipping room, washroom or similar purposes, or as private restrooms or a shop
or for the operation of computer data processing, reproduction, duplicating or
similar equipment. Landlord shall not be in default hereunder or be liable for
any damages directly or indirectly resulting from, nor shall the rental herein
reserved by abated by reason of: (1) the installation, use or interruption of
use of any equipment in connection with the furnishing of any of the foregoing
services, (2) failure to furnish or delay in furnishing any such services when
such failure or delay is caused by accident or any condition beyond the
reasonable control of Landlord or, by the making of necessary repairs or
improvements to the Demised Premises or to the Building, or (3) any limitation,
curtailment, rationing or restriction on use of water, electricity, steam, gas
or any other form of energy serving the Demised Premises or the Building by any
governmental authority or any utility otherwise providing that service, or
caused by circumstances or events beyond Landlord's reasonable control.
Landlord shall use reasonable efforts diligently to remedy any interruption in
the furnishing of such services. Notwithstanding the provisions of this
Section 8.3, Landlord shall not be required to provide ventilation and air
conditioning to the Demised Premises to the extent that additional ventilation
and/or air conditioning is required due to Tenant's utilization in the Demised
Premises of heat generating equipment or lighting other than building standard
lights which affect the temperature otherwise maintained by the air
conditioning system or if the Demised Premises are occupied by a number of
persons in excess of the design criteria of the air conditioning system.
8.4. Tenant shall pay as Additional Rent the cost of providing all
heating, ventilating and air conditioning, excluding all costs associated with
the installation of meters for measuring the same, to the Demised Premises in
excess of that required for normal office use or during hours requested by
Tenant when heating, ventilating and air conditioning is not otherwise
furnished by Landlord. Tenant shall notify Landlord in writing at least
twenty-four (24) hours prior to the time it requires heating, ventilating and
air conditioning during periods the same are not otherwise furnished by
Landlord.
9. Alterations and Repairs.
9.1. Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Demised Premises or any part thereof,
or attach any fixtures or equipment thereto, without first obtaining Landlord's
consent. All such alterations, additions and improvements shall be performed by
contractors and subject to conditions specified by Landlord. If any such
alterations, additions or improvements to the Demised Premises consented to by
Landlord shall be made by Landlord for Tenant's account, Tenant shall reimburse
Landlord for the cost thereof (including a reasonable charge for Landlord's
overhead related thereto) as the work proceeds within fifteen (15) days after
receipt of statements therefor. All such alterations, additions and
improvements shall become the property of Landlord upon their installation
and/or completion and shall remain on the Demised Premises upon the expiration
or termination of this Lease without compensation to Tenant unless Landlord
elects by notice to Tenant to have Tenant remove the same, in which event
Tenant shall promptly restore the Demised Premises to their condition prior to
the installation of such alterations, additions and improvements.
9.2. Subject to the provisions of Section 8.1 hereof, Tenant shall
keep the Demised Premises and every part thereof in good condition and repair.
All repairs made by or on behalf of Tenant shall be made and performed in such
manner as Landlord may designate, by contractors or mechanics approved by
Landlord and in accordance with the rules relating thereto annexed to this
Lease as Exhibit D and all applicable laws and regulations of governmental
authorities having jurisdiction. Tenant shall, subject to the provisions of
Section 9.1 hereof, at the end of the term hereof surrender to Landlord the
Demised Premises in the same condition as when received, ordinary wear and tear
and damage by fire, earthquake, act of God or the elements excepted. Landlord
has no obligation and has made no promise to alter, remodel, improve, repair,
decorate or paint the Demised Premises or any part thereof, and no
representations
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respecting the condition of the Demised Premises or the Building have been
made by Landlord to Tenant, except as expressly set forth herein.
10. Liens.
Any mechanic's lien filed against the Demised Premises or the Building
for work claimed to have been done or materials claimed to have been furnished
to Tenant shall be discharged by Tenant within thirty (30) days thereafter,
unless an earlier date is required under Landlord's mortgage upon the
Development, in which case all such lien's shall be discharged by Tenant with
ten (10) days thereafter. For the purposes hereof, the bonding of such lien
by a reputable casualty or insurance company reasonably satisfactory to
Landlord shall be deemed the equivalent of a discharge of any such lien.
Should any action, suit, or proceeding be brought upon any such lien for the
enforcement or foreclosure of the same, Tenant shall defend Landlord therein,
by counsel satisfactory to Landlord, and pay any damages and satisfy and
discharge any judgment entered therein against Landlord.
11. Destruction or Damage.
11.1. In the event the Demised Premises or any portion of the
Building necessary for Tenant's occupancy are damaged by fire, earthquake, act
of God, the elements or other casualty in each case insured against by
Landlord's fire and extended coverage insurance policy covering the Building
and, if Landlord's reasonable estimate of the cost of making such repairs does
not exceed the proceeds of such insurance by more than One Hundred Thousand
Dollars ($100,000), Landlord shall forthwith repair the same if such repairs
can, in Landlord's opinion, be completed within ninety (90) days after
commencement of such repairs. This Lease shall remain in full force and effect
except that an abatement of Basic Rental shall be allowed Tenant for such part
of the Demised Premises as shall be rendered unusable by Tenant in the conduct
of its business during the time such part is so unusable to the extent Landlord
is reimbursed therefor by loss of rental income or other insurance. If such
repairs cannot, in Landlord's opinion, be made within ninety (90) days, or if
such damage or destruction is not insured against by Landlord's fire and
extended coverage insurance policy covering the Building or if Landlord's
reasonable estimate of the cost of making such repairs exceeds the proceeds of
such insurance by more than One Hundred Thousand Dollars ($100,000), Landlord
may elect, upon notice to Tenant within thirty (30) days after the date of such
fire or other casualty, to repair or restore such damage, in which event this
Lease shall continue in full force and effect, but the Basic Rental shall be
partially abated as provided in this Section 11. 1. If Landlord elects not to
make such repairs, this Lease shall terminate as of the date of such election
by Landlord, or if Landlord shall fail to notify Tenant of Landlord's election,
this Lease shall terminate thirty (30) days after the date of such fire or
other casualty.
If Landlord shall diligently prosecute the adjustment of any insured
loss and proceed to restore the Building with reasonable dispatch, but the
required repairs are not completed (to the extent necessary to permit Tenant to
reoccupy the Demised Premises) within ninety (90) days after the occurrence of
the casualty, other than by reason of causes beyond Landlord's reasonable
control (e.g., strikes, lockouts, material shortages, weather delays and other
further acts of God) which do not extend for in excess of an additional thirty
(30) days, Tenant may elect, upon thirty (30) days notice to Landlord and its
Mortgagee (of which Tenant shall have written notice prior thereto) to
terminate as of the date of that election.
11.2. A total destruction of the Building shall automatically
terminate this Lease.
11.3. If the Demised Premises are to be repaired under this Article
11 , Landlord shall repair at its cost any injury or damage to the Building
itself and building standard tenant improvements in the Demised Premises to be
constructed or installed by Landlord as set forth in Exhibit C. Tenant shall
perform and pay the cost of repairing any other improvement in the Demised
Premises and shall be responsible for carrying such casualty insurance as it
deems appropriate with respect to such other tenant improvements.
12. Subrogation.
Landlord and Tenant shall each obtain from their respective insurers
under all policies of fire insurance maintained by either of them at any time
during the Term insuring or covering the Building or any portion thereof or
operations therein, a waiver of all rights of subrogation which the insurer of
one party might have against the other party, and Landlord and Tenant shall
each indemnify the other against any loss or expense, including reasonable
attorneys' fees, resulting from the failure to obtain such waiver and, so long
as such waiver is outstanding, each party waives, to the extent of the proceeds
received under such
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policy, any right of recovery against the other party for any loss covered by
the policy containing such waiver; provided, however, that if at any time their
respective insurers shall refuse to permit waivers of subrogation, Landlord or
Tenant, in each instance, may revoke said waiver of subrogation effective
thirty (30) days from the date of such notice, unless within such thirty (30)
day period, the other is able to secure and furnish (without additional
expense) equivalent insurance with such waivers with other companies
satisfactory to the other party.
13. Eminent Domain.
If all or any part of the Demised Premises shall be taken as a result of
the exercise of the power of eminent domain, this Lease shall terminate as to
the part so taken as of the date of taking, and, in the case of partial taking,
either Landlord or Tenant shall have the right to terminate this Lease as to
the balance of the Demised Premises by notice to the other within thirty (30)
days after such date; provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the Demised
Premises taken shall be of such extent and nature as substantially to handicap,
impede or impair Tenant's use of the balance of the Demised Premises. In the
event of any taking, Landlord shall be entitled to any and all compensation,
damages, income, rent, awards, or any interest therein whatsoever which may be
paid or made in connection therewith, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease or otherwise. In
the event of a partial taking of the Demised Premises which does not result in
a termination of this Lease, the rental thereafter to be paid shall be reduced
on a per square foot basis.
14. Landlord's Insurance.
Landlord shall, during the Term, provide and keep in force or cause to
be provided or kept in force:
(a) Comprehensive general liability insurance with respect to
Landlord's operation of the Development for bodily injury or death and damage
to property of others (with a minimum coverage of $2,000,000 per
occurrence/general aggregate, together with a minimum of $5,000,000 aggregate
umbrella coverage, the latter of which may apply to other properties among
Landlord's affiliates);
(b) Fire insurance (including standard extended coverage
endorsement perils and leakage from fire protective devices) in respect of the
Building, excluding Tenants trade fixtures, equipment and personal property;
(c) Loss of rental income insurance;
together with such other insurance as Landlord, in its sole discretion, elects
to obtain. Insurance effected by Landlord shall be in amounts which Landlord
shall from time to time determine reasonable and sufficient (an in any event in
amounts which shall preclude the reduction of coverage for any insured casualty
by the operation s of co-insurance provisions), shall be subject to such
deductibles and exclusions which Landlord may deem reasonable and shall
otherwise be on such terms and conditions as Landlord shall from time to time
determine reasonable and sufficient. Tenant acknowledges that Landlord's loss
of rental income insurance may provide that (i) payments thereunder by the
insurer will be limited to a period of one year following the date of any
destruction and damage, and (ii) no insurance proceeds will be payable
thereunder in the case of destruction or damage caused by any occurrence other
than fire and other risks included in the standard extended coverage
endorsement perils of a fire insurance policy.
15. Indemnification and Tenant's Insurance.
15.1. Tenant hereby waives all claims against Landlord for damage to
any property or injury or death of any person in, upon or about the Demised
Premises arising at any time and from any cause whatsoever, and Tenant shall
hold Landlord harmless from any damage to any property or injury to or death of
any person arising from the use of the Demised Premises by Tenant, its
employees or invitees, with the exception of claims (i) caused by the
intentional action or gross negligence of Landlord, or (ii) directly caused by
faulty construction of the Building (other than by Tenant or at its direction),
subject nevertheless to the provisions of this Lease regarding waiver of
subrogation. The foregoing indemnity obligation of Tenant shall include
reasonable attorneys' fees, investigation costs and all other reasonable costs
and expenses incurred by Landlord from the first notice that any claim or
demand as to be made or may be made. The provisions of this Section 15.1 shall
survive the termination of this Lease with respect to any damage, injury or
death occurring prior to such termination.
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15.2. Tenant shall procure and keep in effect comprehensive general
liability insurance, including contractual liability, with minimum limits of
liability of One Million Dollars ($1,000,000) per occurrence for bodily injury
or death, and Two Hundred Fifty Thousand Dollars ($250,000) per occurrence for
property damage. From time to time, Tenant shall increase the limits of such
policies to such higher limits as Landlord shall reasonably require. Such
insurance shall name Landlord and its mortgagee(s) as additional named insureds,
shall specifically include the liability assumed hereunder by Tenant, and shall
provide that it is primary insurance and not excess over or contributory with
any other valid, existing and applicable insurance in force for or on behalf of
Landlord, and shall provide that Landlord shall receive thirty (30) days notice
from the insurer prior to any cancellation or change of coverage.
15.3. Tenant shall procure and keep in effect fire insurance
(including standard extended coverage endorsement perils and leakage from fire
protective devices) for the full replacement cost of Tenant's trade fixtures,
equipment, personal property and leasehold improvements.
15.4. Tenant shall deliver policies of the insurance required
pursuant to Sections 15.2 and 15.3 hereof or certificates thereof to Landlord
on or before the Commencement Date, and thereafter at least thirty (30) days
before the Expiration Dates of expiring policies.
16. Compliance with Legal Requirements.
Tenant shall promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted, with any occupancy
certificate or directive issued pursuant to any law by any public officer or
officers, as well as the provisions of all recorded documents affecting the
Demised Premises and of which Tenant shall have been given actual notice by
Landlord, insofar as any thereof relate to or affect the condition, use or
occupancy of the Demised Premises, excluding requirements of structural changes
not related to or affected by improvements made by or for Tenant or not
necessitated by Tenant's act.
17. Assignment and Subletting.
17.1. Except as expressly permitted pursuant to this Article 17,
Tenant shall not, without the prior written consent of Landlord, assign,
encumber or hypothecate this Lease or any interest herein or sublet the Demised
Premises or any part thereof, or permit the use of the Demised Premises by any
party other than Tenant. This Lease shall not, nor shall any interest herein,
be assignable as to the interest of Tenant by operation of law without the
consent of Landlord. Sales aggregating fifty percent (50%) or more of the
capital or voting stock of Tenant (if Tenant is a nonpublic corporation) or
transfers aggregating fifty percent (50%) or more of Tenant's partnership
interest (if Tenant is a partnership) shall be deemed to be an assignment of
this Lease.
17.2. PERMITTED TRANSFERS. Landlord shall not unreasonably withhold
its consent to any request by Tenant to assign this Lease or sublet any portion
or all thereof, provide there shall be compliance with each of the following
conditions
(a) Tenant shall not be in material default under this Lease
(i.e., beyond any notice and cure periods provided herein), and no
condition shall exist that (with the giving of notice, the passage
of time, or both) would constitute such a material Default.
(b) The assignee or sublessee (the "SUCCESSOR TENANT") must be a
reputable person, and shall, in Landlord's reasonable judgment,
have sufficient assets and working capital with which to operate
its business upon the Demised Premises in accordance with the
terms and provisions of this Lease. Tenant shall provide
Landlord with all information reasonably requested by Landlord
concerning the proposed Successor Tenant and its proposed.use of
the Demised Premises.
(c) The business or other activity to be conducted from the
Demised Premises by the Successor Tenant must be consistent with
the uses within the Development and not conflict with any other
business or activity conducted by any other tenant within the
Development.
(d) In the event Tenant shall so sublet all or any portion of the
Demised Premises, or assign this Lease, all of the sums or
other economic consideration received by Tenant as a result
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of such subletting or assignment whether denominated rentals or
otherwise, under the sublease or assignment, 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 Demised Premises subject to
such sublease) shall be payable to Landlord as Additional Rent
under this Lease without affecting or reducing any other
obligation of Tenant hereunder.
(e) Tenant shall acknowledge in a separate writing reasonably
acceptable to Landlord in form and substance that no such
Transfer shall relieve Tenant from liability for payment of rent
or other sums herein provided or for the obligation to keep and
be bound by the terms, conditions and covenants of this Lease,
notwithstanding the fact that this Lease may be amended by
agreement between such assignee or subtenant and Landlord
(provided that Tenant shall not be liable for any greater sum or
performance than would accrue or arise under the terms of this
Lease prior to any such amendment).
(f) Tenant shall unconditionally release Landlord from all actual or
potential claims and Liabilities under or pursuant to the Lease
arising by reason of Landlord's default prior to the date of the
proposed Transfer, of which Tenant shall have any knowledge as of
that date, unless Tenant shall have served upon Landlord a
default notice in connection with which the claims specifically
set forth therein have not then been resolved.
(g) Any Successor Tenant which shall be an assignee shall agree in a
writing, reasonably acceptable to Landlord in both form and
substance, to assume all of Tenant's obligations of payment and
performance under and pursuant to this Lease.
(h) An assignment for the benefit of creditors or by operation of law
shall not be effective to transfer any rights to assignee
without the written consent of the Landlord first having been
obtained.
Tenant shall furnish Landlord with an executed counterpart of the agreement
under which any such permitted Transfer has been agreed to (which may be
redacted for confidential provisions, including the consideration to be paid,
unless the transaction as limited to the sale and/or assignment of the business
operations and/or assets upon the Demised Premises). Upon request by Tenant,
and if Landlord has so consented, Landlord shall give written consent to a
qualifying assignment acknowledging that it has no legal objection thereto and
that to Landlord's knowledge that Transfer conforms to the provisions and
requirements of this Lease. Prior to delivery of Landlord's consent, Tenant
shall deliver to Landlord (i) an executed counterpart of the assignment
conforming to the requirements of this Section, and providing for the
assumption by the Successor Tenant or other assignee of the Tenant's
obligations of payment and performance from and after the effective date of the
Assignment, and (ii) if a sublease is involved, an executed counterpart of the
sublease, which shall not extend beyond the Term of this Lease and shall
contain an agreement by the subtenant to be bound to the provisions of this
Lease with respect to assignments thereunder.
17.3. Notwithstanding the provisions of Section 17.1, but subject
to compliance with the requirements of Section 17.2 (with the exception of
those requirements in the first sentence of subsection 17.2[b], Tenant may
assign this Lease or sublet the Demised Premises or any portion thereof,
without Landlord's consent, to any corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from
the merger or consolidation with Tenant, or to any person or entity which
acquires all the assets of Tenant as a going concern of the business that is
being conducted on the Demised Premises, provided that said assignee assumes,
in full, the obligations of Tenant under this Lease.
17.4. Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation or alter the primary liability of
Tenant to pay the rental and to perform all other obligations to be performed
by Tenant hereunder. The acceptance of rental by Landlord from any other
person shall not be deemed to be a waiver by Landlord or any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default of any of the
terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such assignee or successor. Landlord
may consent to subsequent assignments or subletting of this Lease or amendments
or modifications to this Lease with
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assignees of Tenant, without notifying Tenant, or any successor of Tenant, and
without obtaining its or their consent thereto and such action shall not
relieve Tenant of liability under this Lease.
17.5. In the event Tenant shall assign this Lease or sublet the
Demised Premises or request the consent of Landlord to any assignment or
subletting or if Tenant shall request the consent of Landlord for any act that
Tenant proposes to do, then Tenant shall pay Landlord's reasonable attorneys'
fees and processing fees incurred in connection therewith.
17.6. In the event of a proceeding involving Tenant under the
Federal Bankruptcy Code, 11 U.S.C. 101 et seq., if this Lease is assumed by
Tenants trustee in bankruptcy (after he has cured all existing defaults,
compensated Landlord for any loss resulting therefrom and provided adequate
assurance of future performance), then this Lease may not be assigned by the
trustee to a third party, unless such party (i) executes and delivers to
Landlord an agreement in recordable form whereby such party assumes and agrees
with Landlord to discharge all obligations of Tenant under this Lease,
including, without limitation, the provisions relating to the permitted use of
the Demised Premises and the manner of operation thereof, and (ii) has a
tangible net worth at least equal to twice the annual Basic Rental payable
during the ensuing 12 months, an operating experience over an uninterrupted
period of at least the previous five years without material default under any
premises lease and free of any bankruptcy or similar debtor relief proceedings
having been filed by or against it, and a credit history (as reflected in
customary credit reports, litigation and lien searches) which is satisfactory
to Landlord in the exercise of its reasonable judgment taking into
consideration the materiality of the Lease revenue upon the financial well
being of the Development.
18. Rules.
Tenant shall faithfully observe and comply with the rules and
regulations annexed to this Lease as Exhibit D and, after notice thereof, all
reasonable modifications thereof and additions thereto from time- to time
promulgated in writing by Landlord. No such modifications or additions shall
unreasonably interfere with or materially and adversely affect any of Tenant's
rights under this Lease, materially and adversely increase Tenant's obligations
of performance as required under the terms of the Lease and the rules and
regulations in effect as of the Commencement Date or increase Tenant's Rental
obligations hereunder. Landlord shall not be responsible to Tenant for the
nonperformance by any other tenant or occupant of the Building of any of such
rules and regulations.
19. Entry by Landlord.
19.1. Landlord and its designees may enter the Demised Premises at
reasonable hours to (a) inspect the same, (b) exhibit the same to prospective
purchasers, lenders or tenants, (c) determine whether Tenant is complying with
all of its obligations hereunder, (d) supply janitor service and any other
services to be provided by Landlord to Tenant hereunder, (e) post notices of
nonresponsibility, and (f) make repairs required of Landlord under the terms
hereof or repairs to any adjoining space or utility services or make repairs,
alterations or improvements to any other portion of the Building; provided,
however, that all such work shall be done as promptly as reasonably possible.
Where circumstances reasonably permit prior notice to be given of any such
entry by Landlord, Landlord shall give such notice as shall be reasonable under
the circumstances, but shall not be liable or responsible to Tenant for the
result of any such entry which is delayed or obstructed by Tenant. In so
entering upon the Demised Premises, Landlord shall take reasonable steps under
the circumstances to not unreasonably disrupt or interfere with Tenant's
occupancy and quiet enjoyment of the Demised Premises. Tenant hereby waives
any claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Demised
Premises or any other loss occasioned by such entry, other than (i) caused by
Landlord's gross negligence or (ii) for the costs of repairing or restoring the
Demised Premises as a direct result of actual damage to the Demised Premises,
beyond reasonable wear and tear, caused by Landlord's entry and which Landlord
does not repair or restore within a reasonable time thereafter.
19.2. Landlord shall at all times have and retain a key with which
to unlock all of the doors in, on or about the Demised Premises (excluding
Tenant's vaults, safes and similar areas designated in writing by Tenant in
advance); and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in any emergency in order to obtain
entry to the Demised Premises, and any entry to the Demised Premises obtained
by Landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into or
a detainer of the
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Demised Premises or an eviction, actual or constructive, of Tenant from the
Demised Premises, or any portion thereof.
20. Events of Default.
20.1. The occurrence of any one or more of the following events
(hereinafter referred to as "EVENTS OF DEFAULT") shall constitute a breach of
this Lease by Tenant: (a) if Tenant shall fail to pay the Basic Rental and
regularly scheduled monthly installments of Additional Rental when and as the
same become due and payable after expiration of the Rent Grace and Notice
Period (defined below); or (b) if Tenant shall fail to pay any other sum when
and as the same becomes due and payable and such failure shall continue for
more than ten (10) days (after notice from Landlord, where any such payment is
due Landlord, as opposed to a third party); or (c) if Tenant shall fail to
perform or observe any other term hereof or of the rules and regulations
referred to in Article 18 hereof to be performed or observed by Tenant, such
failure shall continue for more than thirty (30) days after notice thereof from
Landlord, and Tenant shall not within such thirty (30) day period commence with
due diligence and dispatch the curing of such default, or, having so commenced,
shall thereafter fail or neglect to prosecute or complete with due diligence
and dispatch the curing of such default; or (d) if Tenant shall make a general
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts as they become due or shall file a petition in
bankruptcy, or shall be adjudicated as insolvent or shall file a petition in
any proceeding seeking any reorganization, arrangements, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file an answer admitting or fail
timely to contest or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or any material part of its properties; or (e) if within
ninety (90) days after the commencement of any proceeding against Tenant
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed, or if, within
ninety (90) days after the appointment without the consent of acquiescence of
Tenant, of any trustee, receiver or liquidator of Tenant or of any material
part of its properties, such appointment shall not have been vacated; or (f) if
this Lease or any estate of Tenant hereunder shall be levied upon under any
attachment or execution and such attachment or execution is not vacated within
thirty (30) days.
20.2. If, as a matter of law, Landlord has no right on the
bankruptcy of Tenant to terminate this Lease, then, if Tenant, as debtor, or
its trustee wishes to assume or assign this Lease, in addition to curing or
adequately assuring the cure of all defaults existing under this Lease on
Tenant's part on the date of filing of the proceeding (such assurances being
defined below), Tenant, as debtor, or the trustee or assignee must also furnish
adequate assurances of future performance under this Lease (as defined below).
Adequate assurance of curing defaults means the posting with Landlord of a sum
in cash sufficient to defray the cost of such a cure. Adequate assurance of
future performance under this Lease means posting a deposit equal to three (3)
months rent, including all other charges payable by Tenant hereunder, such as
the amounts payable pursuant to Article 5 hereof, and, in the case of an
assignee, assuring Landlord that the assignee is financially capable of
assuming this Lease, and that its use of the Demised Premises will not be
detrimental to the other tenants in the Building or Landlord. In a
reorganization under Chapter 11 of the Bankruptcy Code, the debtor or trustee
must assume this Lease or assign it within one hundred twenty (120) days from
the filing of the proceeding, or he shall be deemed to have rejected and
terminated this Lease.
20.3. For the purpose of this the forgoing Section 20.1, the "RENT
GRACE AND NOTICE PERIOD" shall be as provided in this Section 20.3. Monthly
installments of Basic Rental and regularly scheduled monthly installments of
Additional Rental (i.e., those regular payments of Additional Rental due under
this Lease with the payment of Basic Rental and of which Tenant has been given
prior notice as to amount, as required under this Lease) are each due and
payable on the first day of each month during the Term, but shall not be deemed
late until the fourth day of each month. An Event of Default shall not arise
with respect to either payment obligation unless the failure to pay those sums
shall continue for more than ten (10) days after notice to Tenant from
Landlord, as provided under this Lease. However, in the event that any such
payment is made after the foregoing four day grace period, Tenant shall be
liable and shall reimburse Landlord for any lawful penalty or default interest
(i.e., the interest assessed over the non-default rate) properly assessed
against Landlord under and pursuant to the terms of Landlord's then existing
first mortgage upon the Development by reason of the failure to make that
month's corresponding regularly scheduled payment of principal, interest and
tax and insurance escrows required thereunder. In order to be entitled to this
payment/reimbursement from Tenant, Landlord shall be required to establish that
it had
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sufficient additional funds on deposit with which to make the balance of that
required monthly payment on a timely basis if Tenant's payments had been
received as required under this Lease.
The foregoing provision has been agreed to (i) in light of Tenant's
request for a grace period and notice and cure rights with respect to the
affected payments and (ii) in light of the significance to Landlord of Tenant's
relative occupancy of the Building and the resulting importance of Tenant's
timely payments in order to permit Landlord to make correspondingly timely
payments on its first mortgage indebtedness. Landlord represents and warrants
to Tenant that Landlord's current first Mortgage Note requires the payment of
scheduled monthly installments on the first day of each month, imposes a 5%
late payment penalty upon any such late installment not paid by the 1Oth day of
any month, and in like fashion increases the applicable interest rate by adding
an aggregate 5% per annum thereto as the Default Rate, which is applicable to
debt at the Lender's option once a regular installment remains unpaid for more
than 10 days. Upon any refinancing of first mortgage indebtedness hereunder,
Landlord shall give Tenant notice of any change in the provisions for payments
thereunder, including applicable late payment charges and default interest
rate. Tenant shall not have any liability under this Section 20.3 for any such
charges which are assessed, or which accrue for any period of time, prior to
the fifth day of any month.
21. Remedies,.
If any of the Events of Default shall occur, then Landlord shall have
the following remedies:
(a) Landlord at any time after the Event of Default, at Landlord's
option, may give to Tenant ten (10) days notice of termination of this Lease,
and in the event such notice is given, this Lease shall come to an end and
expire (whether or not the Term shall have commenced) upon the expiration of
such ten (10) days, but Tenant shall remain liable for damages as provided in
Article 22 hereof.
(b) Either with or without terminating this Lease, Landlord may
immediately or at any time after the Event of Default or after the date upon
which this Lease shall expire, reenter the Demised Premises or any part
thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, or by force or otherwise (without being liable
to indictment, prosecution or damages therefor), and may repossess the Demised
Premises and remove any and all of Tenant's property and effects from the
Demised Premises.
(c) Either with or without terminating this Lease, Landlord may
relet the whole or any part of the Demised Premises from time to time, either
in the name of Landlord or otherwise, to such tenant or tenants, for such term
or terms ending before, on or after the Expiration Date, at such rental or
rentals and upon such other conditions, which may include concessions and free
rent periods, as Landlord, in its sole but reasonable discretion, may
determine. In the event of any such reletting, Landlord shall not be liable
for the failure to collect any rental due upon any such reletting, and no such
failure shall operate to relieve Tenant of any liability under this Lease or
otherwise to affect any such liability; and Landlord may make such repairs,
replacements, alterations, additions, improvements, decorations and other
physical changes in and to the Demised Premises as Landlord, in its sole but
reasonable discretion, considers advisable or necessary in connection with any
such reletting or proposed reletting, without relieving Tenant of any liability
under this Lease or otherwise affecting such liability.
(d) Landlord shall have the right to recover the rental and all
other amounts payable by Tenant hereunder as they become due (unless and until
Landlord has terminated this Lease) and all other damages incurred by Landlord
as a result of an Event of Default.
(e) The remedies provided for in this Lease are in addition to any
other remedies available to Landlord at law or in equity by statute or
otherwise.
22. Termination upon Default.
Upon termination of this Lease by Landlord pursuant to Article 21
hereof, Landlord shall be entitled to recover from Tenant the aggregate of: (a)
the worth at the time of award of the unpaid rental which had been earned at
the time of termination; (b) the worth at the time of award of the amount by
which the unpaid rental which would have been earned after termination until
the time of award exceeds the then reasonable rental value of the Demised
Premises during such period; (c) the worth at the time of the award of the
amount by which the unpaid rental for the balance of the term of this Lease
after the time of award exceeds the reasonable rental value of the Demised
Premises for such period; and (d) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to
perform
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its obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom. The "WORTH AT THE TIME OF AWARD" of the
amounts referred to in clauses (a) and (b) above is computed from the date such
rent was due or would have been due, as the case may be, by allowing interest
at the rate of one percent (1%) in excess of the prime rate of National Bank of
Detroit or, if a higher rate is legally permissible, at the highest rate
legally permitted. The "wORTH AT THE TIME OF AWARD" of the amount referred to
in clause (c) above is computed by discounting such amount at the discount rate
of the Federal Reserve Bank of Chicago at the time of award, plus one percent
(1%).
23. Landlord's Right to Cure Defaults.
All covenants, terms and conditions to be performed by Tenant under
any of the terms of this Lease shall be at its sole cost and expense and
without any abatement of rental. If Tenant shall fail to pay any sum of money,
other than Basic Rental, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder and such failure
shall continue for thirty (30) days after notice thereof by Landlord, Landlord
may, but shall not be obligated so to do, and without waiving or releasing
Tenant from any obligations of Tenant, make any such payment or perform any
such other act on Tenant's part to be made or performed as in this Lease
provided. All sums so paid by Landlord and all necessary incidental costs
shall be deemed Additional Rent hereunder and shall be payable to Landlord on
demand, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the nonpayment thereof
by Tenant as in the case of default by Tenant in the payment thereof by Tenant
as in the case of default by Tenant in the payment of Basic Rental.
24. Attorneys' Fees.
If either party to this Lease uses the services of an attorney in
connection with (i) any breach or default in the performance of any of the
provisions of this Lease, in order to secure compliance with such provisions or
recover damages therefor, or to terminate this Lease or evict Tenant, or (ii)
any action brought by either party against the other, or (iii) any action
brought against Tenant or Landlord in which the other is made a party, the
non-prevailing party shall reimburse the other upon demand for any and ail
reasonable attorneys' fees and expenses so incurred by Landlord.
25. Subordination.
25.1. This Lease is and shall be subject and subordinate, at all
times, to the following:
(a) The lien of any mortgage or mortgages which may now
or hereafter affect the Building, and to all advances
made or hereafter to be made upon the security
thereof and to the interest thereon, and to any
agreements at any time made modifying, supplementing,
extending or replacing any such mortgages, provided
that such lien by its terms, or by separate agreement
with Tenant, provides that this Lease shall not
terminate as a result of the foreclosure of such
lien, and that Tenant's rights under this Lease shall
continue in full force and effect and its possession
be undisturbed, except in accordance with the
provisions of this Lease. Tenant agrees that it
will, upon request of the lienholder, be a party to
such an agreement, and will agree that if that
lienholder succeeds to the interest of Landlord,
Tenant will recognize that lienholder (or its
successor-in-interest) as its Landlord under the
terms of this Lease. Tenant shall execute and
deliver upon Landlord's demand those instruments
which comply with the foregoing provisions.
(b) Any ground or underlying lease which may now or
hereafter affect the Building, including all
amendments, renewals, modifications, consolidation,
replacements and extensions thereof.
Notwithstanding the foregoing, at the request of the holder of any of the
aforesaid mortgage or mortgages or the lessor under the aforesaid ground or
underlying lease, this Lease may be made prior and superior to such mortgage or
mortgages and/or such ground or underlying lease.
25.2. At the request of Landlord, Tenant shall promptly execute and
deliver such further instruments as may be reasonably required to implement the
provisions of this Article 25.
25.3. This Lease has been executed by Landlord and Tenant with the
following understandings: (i) the effectiveness of this Lease is specifically
subject to the written approval of Landlord's first mortgagee
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within ten (10) days after the execution of this Lease (the "MORTGAGE APPROVAL
PERIOD"); (ii) his Lease shall not be enforceable by or against either Landlord
or Tenant unless and until this Lease is approved in its current form by
Landlord's first mortgagee within the Mortgage Approval Period, unless that
Period is extended by written agreement between Landlord and Tenant; (iii)
Landlord's interest hereunder may, at the option of that mortgagee, be assigned
to that mortgagee as collateral security on a separate form to be provided by
and acceptable to that mortgagee; and (iv) Tenant may be required by that
Mortgagee to execute and deliver to that mortgagee a separate Attornment
Agreement provided by and acceptable to that mortgagee. If that Attornment
Agreement is inconsistent with the terms, provisions and requirements of this
Lease, Tenant shall have the right and option of terminating this Lease upon
written notice to Landlord within thirty (30) days after receipt of the
requested form. In addition, the parties hereto hereby incorporate herein and
agree to the provisions of Exhibit G attached hereto, which are specific
provisions required by the terms of Landlord's first mortgage.
25.4. [Intentionally Omitted]
25.5. If a mortgagee or any other person acquires title to the
Demised Premises pursuant to the exercise of any remedy provided for in the
mortgage, Tenant covenants and agrees to attorn to mortgagee or such person as
its new Landlord, and this Lease shall continue in full force and effect as a
direct lease between Tenant and mortgagee or such other person upon all the
terms, covenants, conditions and agreements set forth in the Lease, provided
that the mortgagee has entered into a non-disturbance agreement with Tenant.
However, in no event shall mortgagee or such person be (a) bound by any payment
of rent or Additional Rent made by the Tenant to the Landlord for more than one
(1) month in advance; or (b) bound by any amendment or modification of the
Lease adversely affecting the interest of mortgagee made without the written
consent of mortgagee; or (c) liable for any act or omission of any prior
Landlord (including Landlord); or (d) liable for the return of any security
deposit (unless any such security deposit has actually been received by
mortgagee); or (e) liable for any offsets, credits or other claims against
rentals for any prior periods and/or against any other party or Landlord
(including Landlord), except to the extent specifically provided for under this
Lease. Tenant agrees to execute all tenant estoppel certificates and attornment
agreements as mortgagee shall reasonably require, provided Tenant receives a
non-disturbance agreement from mortgagee.
26. Merger.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation hereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
27. Nonliability of Landlord.
27.1. In the event the Landlord hereunder or any successor owner of
the Building shall sell or convey the Building, all liabilities and obligations
on the part of the original Landlord or such successor owner under this Lease
accruing thereafter shall terminate, and thereupon all such liabilities and
obligations shall be binding upon the new owner. Tenant shall attorn to such
new owner.
27.2. Landlord shall not be responsible or liable to Tenant for any
loss or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining areas or any part of the area adjacent to or
connected with the Demised Premises or any part of the Building or for any loss
or damage resulting to Tenant or its property from theft or a failure of the
security systems in the Building, or for any damage or loss of property within
the Demised Premises from any other cause whatsoever (except for Landlord's
negligence and/or intentionally tortious actions, but only if and to the extent
that any such loss or damage to Tenant or its property is not covered by
Tenant's insurance and applicable insurance deductibles), and no such occurrence
shall be deemed to be an actual or constructive eviction from the Demised
Premises or result in an abatement of rental.
27.3. If Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord's part to be performed, and, if as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only against the right, title and
interest of Landlord in the Development and out of rents and other income from
the Development, and/or insurance proceeds (net of any portion thereof to which
a mortgagee of the Development shall have a superior right), receivable by
Landlord, or out of the consideration received by Landlord from the sale or
other disposition of
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all or any part of Landlord's right, title and interest in the Development, and
Landlord shall not be liable for any deficiency.
28. Estoppel Certificate.
At any time and from time to time upon ten (10) days prior request by
Landlord, Tenant will promptly execute, acknowledge and deliver to Landlord, a
certificate indicating (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification),
(b) the date, if any, to which rental and other sums payable hereunder have
been paid, (c) that no notice has been received by Tenant of any default which
has not been cured, except as to defaults specified in said certificate, and
(d) such other matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any deed of trust of the Building or any part thereof.
29. No Light, Air or View Easement.
Any diminution or shutting off of light, air or view by any structure
which may be erected on lands adjacent to the Building shall in no way affect
this Lease or impose any liability on Landlord.
30. Holding Over.
If Tenant holds possession of the Demised Premises beyond the
expiration of the Term, such continued possession by Tenant shall not have the
effect of extending or renewing the Term for any period of time and Tenant
shall be presumed to occupy the Demised Premises against the will of Landlord
who shall thereupon be entitled to all remedies provided for the expulsion of
Tenant, including all claims for loss and damage; provided, however, that
Landlord may, at its option, give to Tenant at any time during such continued
possession by Tenant written notice that Tenant may continue to occupy the
Demised Premises under a tenancy from month to month and otherwise under such
terms and conditions (including rental) as Landlord may specify in said written
notice.
31. Abandonment.
If Tenant shall abandon or surrender the Demised Premises, or be
dispossessed by process of law or otherwise, any personal property belonging to
Tenant and left on the Demised Premises for a period in excess of fourteen (14)
days shall be deemed to be abandoned, or, at the option of Landlord, may be
removed by Landlord at Tenant's expense.
32. Security Deposit. [INTENTIONALLY OMITTED]
33. Waiver.
33.1. No waiver of any covenant or condition or of the breach of any
covenant or condition of this Lease shall constitute a waiver of any subsequent
breach of such covenant or condition, or justify or authorize the nonobservance
on any other occasion of the same or of any other covenant or condition hereof.
No custom or practice which may grow up between the parties in the
administration of the terms hereof be construed to waive or to lessen the right
of Landlord or Tenant to insist upon the performance by the other of the terms
hereof in strict accordance with said terms. The subsequent acceptance of
rental hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any agreement, condition or provision of this
Lease, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rental.
33.2. 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 Demised
Premises by Tenant or any person claiming through or under Tenant, any claim of
injury or damage, and any emergency or other statutory remedy; provided,
however, the foregoing waiver shall not apply to any action for personal injury
or property damage.
34. Notices.
Any notice, demand, request or consent made under this Agreement shall
be in writing, addressed to the party to whom that notice is to be given, and
shall be deemed to have been received by the
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addressee on (i) the day that notice is personally delivered to the addressee,
(ii) the 3rd day following the day that notice is deposited with the United
States postal service first class certified mail, return receipt requested,
(iii) the day following the day on which that notice is delivered to a
nationally recognized overnight courier delivery service, or (iv) the day upon
which facsimile transmission is confirmed after transmission by telecopy to the
telecopier number which the addressee shall have previously designated in
writing. All such notices shall be provided as follows: to Tenant at the
address set forth in Section 1 (m) hereof, or to such other place as Tenant may
form time to time designate in a notice to Landlord; to Landlord at the address
set forth in Section 1 (n) hereof, or to such other place as Landlord may from
time to time designate in a notice to Tenant; or, in the case of Tenant,
delivered to Tenant at the Demised Premises. Either party hereto may at any
time change the address to which notices are to be directed by the giving of
notice to the other party hereto in the manner set forth above.
35. Guaranty. [INTENTIONALLY OMITTED]
36. Complete Agreement.
There are no oral agreements between Landlord and Tenant affecting
this Lease, and this Lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if any,
between Landlord and Tenant or displayed by Landlord to Tenant with respect to
the subject matter of this Lease or the Building. There are no representations
between Landlord and Tenant other than those contained in this Lease and all
reliance with respect to any representations is solely upon such
representations. This Lease supersedes Tenant's present Lease for Suites 100,
145, 185, 195 and 295, effective upon the Commencement Date.
37. Corporate Authority.
If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a
fully authorized and existing corporation, that Tenant has and is qualified to
do business in Michigan, that the corporation has full right and authority to
enter into this Lease, and that each and all of the persons signing on behalf
of the corporation are authorized to do so.
38. Inability to Perform.
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 utility or service required to be furnished by Landlord under the
provisions of Article 8 hereof or any other provisions of this Lease or any
collateral instrument, or is unable to perform or make or is delayed in
performing or making any installations, decorations, repairs, alterations,
additions, or improvements, whether required to be performed or made under this
Lease or under any collateral instrument, or is unable to fulfill or is delayed
in fulfilling any of Landlord's other obligations under this Lease or any
collateral instrument, no such inability or delay shall constitute an actual or
constructive eviction in whole or in part, or entitle Tenant to terminate the
Lease or, except for a delay in delivering the Demised Premises to Tenant (in
which case all rent due hereunder shall be abated, and the Lease Term extended,
for a period equal to that delay), any abatement or diminution of rental or
other charges due hereunder or 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. Notwithstanding the foregoing, in the event that for
reasons not caused by Tenant, essential utility services are not rendered to
the Demised Premises for a period in excess of three days, and as a result
thereof, the Demised Premises are as a practical matter not reasonably
habitable or suitable for the conduct of Tenant's regular business operations,
and Landlord shall not have made a reasonable and effective interim substitute
therefor (i.e., portable heaters, generators, etc.), Rental shall xxxxx during
the continuation of that interruption thereafter until restored.
39. Covenant of Quiet Enjoyment.
Upon Tenant paying the rental and other charges due hereunder and
performing all of Tenant's obligations under this Lease, Tenant may peacefully
and quietly enjoy the Demised Premises during the term of this lease; subject,
however, to the provisions of this Lease and to any mortgages referred to in,
and in accordance with the provisions of, Article 25 hereof.
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40. Miscellaneous.
40.1. The words "LANDLORD" and "TENANT" as used herein shall include
the plural as well as the singular. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
40.2. Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
40.3. The agreements, conditions and provisions herein contained
shall, subject to the provisions as to assignment, set forth in Article 17
hereof, apply to and bind the heirs, executors, administrators, successors and
assigns of the parties hereto.
40.4. Tenant shall not without the consent of Landlord, use the name
of the Building for any purpose other than as the address of the business to be
conducted by Tenant in the Demised Premises. Landlord reserves the right to
select the name of the Building and to make such changes of name as it deems
appropriate from time to time.
40.5. If any provisions of this Lease shall be determined to be
illegal or unenforceable, such determination shall not affect any other
provisions of this Lease and all such other provisions shall remain in full
force and effect.
40.6. This Lease shall be governed by and construed pursuant to the
laws of the State of Michigan.
40.7. Upon Landlord's written request, Tenant shall promptly furnish
Landlord, from time to time, financial statements reflecting Tenant's current
financial condition.
41. RIGHT OF FIRST REFUSAL/OPTION TO EXTEND
41.1. Providing Tenant is not in default of any of the terms or
conditions of this Lease at the time of exercise of the following option,
Tenant will have the right of first refusal to lease newly vacated space
("ADDITIONAL PREMISES") in the Building at any time during the initial or any
extended or renewal Term of this Lease, providing that Tenant shall exercise
this option in a writing served upon Landlord within fourteen (14) days of
receipt of Landlord's written notification to Tenant of available Additional
Premises. Landlord shall provide that notice to Tenant as and when Additional
Space becomes available. If Tenant's option is exercised, the Additional
Premises shall be added to this Lease under the same terms and conditions
contained in this Lease, with the exception that the Additional Premises shall
be added and accepted by Tenant in its then present condition, "As Is" and
without any requirement upon Landlord to repair or improve those Additional
Premises, except that if this right is exercised during the initial Term of
this Lease Landlord shall provide to Tenant a renovation/improvement allowance
(in the same manner and under the same terms, conditions and requirements as
provided in Article 4 hereof for renovations and improvements) as follows:
Space Added to Lease
During Lease Year Allowance
----------------- ---------
1-5 $15.00/sq. ft., reduced proportionately in proportion to reflect only the number of
days remaining in the original Term of the Lease as they relate to the full nine
year initial Lease Term
6 $3.00/sq. ft.
7 $2.00/sq. ft.
8-9 No allowance provided
The addition of space to this Lease shall be effective as of the date when the
Additional Premises are delivered to Tenant by Landlord, with completion of
that work agreed to between Tenant and Landlord, including that provided for
out of the foregoing allowances. Tenant shall promptly provide all
information, documents, consents and approvals, and perform all work required
of Tenant, in order to provide for the
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design, costing, governmental approval and completion of the
renovation/improvement work, and the Additional Premises to this Lease, each as
soon as reasonably possible under the circumstances.
41.2. OPTION TO EXTEND. Tenant may extend the Term of this Lease for
one (1), additional period of five (5) years, on the terms and conditions set
forth herein except that Basic Rent during the extended term shall be
$22.00/sq. ft. (without a change in the Base Year), by notifying the Landlord
in writing not less than one hundred eighty (180) days prior to the then
pending Expiration Date. It is a precondition to Tenant's right to exercise the
foregoing option that, at the time of the exercise thereof and at all times
thereafter prior to the effective date of the commencement of the extended
Term, Tenant shall not be in material default under this Lease, nor shall there
exist any condition which, with the giving of Notice, the passage of time, or
both, would constitute such a material Default, unless that Default or other
condition is fully cured on or before the commencement of the extended Term.
42. PARKING.
Landlord hereby grants Tenant the right for its employees to use at
all times wherein Tenant is not in default, ninety-three (93) reserved parking
spaces in the Dearborn Atrium parking structure. Landlord, in its sole
discretion, shall be entitled to replace, reassign and/or relocate such spaces
within the parking structure, parking lot, or other lease parking areas
controlled by the Landlord.
43. SIGNAGE.
No sign and/or other display relative to Tenant or Tenant's business
shall be displayed in and about the Demised Premises, Building, and/or the
Development without the prior written consent of Landlord. Landlord shall, in
its sole discretion, determine the size, type, character, aesthetic quality,
and permissible location of any such sign and/or display, which determination
may be changed by Landlord from time to time, subject to the limitations of
this paragraph. The cost of any such sign and/or display shall be borne
exclusively by Tenant, except if, Landlord unilaterally, without request by
Tenant, requires a change to an existing sign and/or display to conform to a
general standard being applied by Landlord to all other exterior signage upon
the Building, in which event, Landlord shall pay the cost of replacing the
former sign with a newly approved sign. Notwithstanding the foregoing, Tenant
shall have the exclusive right to have its name placed on the exterior facade
of the Building, in a location and manner approved by Landlord in its sole but
reasonable discretion.
(a) COMPLIANCE WITH LAW. Tenant's signage shall comply with all
applicable laws. Landlord shall reasonably work, assist and
cooperate with Tenant in all respects with the application and
review process necessary for the approval of such signage as
required by any governmental entity; provided that Tenant
shall pay Landlord's reasonable costs and expenses associated
therewith.
(b) TENANT'S MAINTENANCE OF SIGN. Tenant shall maintain its sign
in a good state of repair and save Landlord harmless from any
loss, cost or damage as a result of the erection, maintenance,
existence or removal of the same and shall repair any damage
which may have been caused by the erection, existence,
maintenance or removal of such sign. Upon vacating the
Demises Premises, Tenant shall remove all signs and exterior
displays and repair all damage caused by that removal.
The foregoing exclusive building exterior signage right shall not restrict
Landlord from erecting a monument sign on the Development grounds, upon which
one or more Tenants names may appear at Landlord's discretion. However, that
monument sign shall not obscure the visibility of Tenant's Building sign.
44. ARBITRATION
44.1. Any controversy or claim between the parties hereto arising
out of or relating to an assertion of an Event of Default or disputes relating
to construction or reasonable evidence under this Lease, or any other dispute
or claim which by the explicit terms of this Lease is to be resolved by
Arbitration, shall (i.e., must) be submitted to binding arbitration before a
single arbitrator (unless the parties hereto otherwise consent in writing to
three arbitrators) conducted in accordance with the arbitration rules of the
American Arbitration Association ("AAA") as in existence at the time any such
arbitration is commenced, provided, however, that nothing contained herein
shall be construed as approving, authorizing or allowing arbitration for any
other matters and/or disputes arising under this.
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44.2. The provisions of this Section shall be construed as
independent of any other covenant or provision of this Lease; provided,
however, that if a court of competent jurisdiction or property appointed
arbitrator determines that any such provision is invalid or unenforceable in
any respect, such court or arbitrators shall modify or interpret such provision
to the minimum extent necessary to comply with applicable law and public
policy. Notwithstanding any provision of this Lease relating to the governing
Law of this Lease, all issues relating to arbitrability or the enforcement of
the agreement to arbitrate contained herein shall be governed by the Laws of
the State of Michigan, without reference to the principles of comity or
conflicts of Laws.
44.3. Judgment upon an arbitration award may be entered in any court
having competent jurisdiction, and shall be binding, final, and non-appealable.
Landlord and Tenant hereby waive to the fullest extent permitted by law, any
right to or claim for punitive or exemplary damages against the other, and
agree that in the event of a dispute between them, each shall be limited to the
recovery of any actual, and incidental damages sustained, along with reasonable
attorneys fees or court costs incurred in connection with any arbitration or
litigation related thereto and cost and expenses of investigation.
44.4. Upon initiation but prior to commencement of any arbitration
proceeding, Landlord or Tenant may, at their respective option, elect to have
the arbitrator conduct, in a separate proceeding prior to the actual
arbitration, a preliminary hearing, at which hearing testimony and other
evidence may be presented and briefs may be submitted, including, without
limitation, a brief setting forth the then applicable statutory or common law
methods of measuring damages in respect of the controversy or claim being
arbitrated.
44.5. The arbitration provisions contained this Lease shall be
deemed to be self-executing. Arbitration shall take place in the City of
Southfield, State of Michigan, unless otherwise agreed to in writing in each
specific instance by Landlord and Tenant.
44.6. Neither the termination of this Lease, nor the exercise of any
other right or remedy by a party hereto, shall terminate the right of either
party hereto to commence arbitration or, if permitted pursuant to the terms of
this Lease, litigation.
44.7. Notwithstanding anything contained herein to the contrary,
either party shall have the right to seek specific enforcement or an injunction
from a court of competent jurisdiction during the pendency of any arbitration
proceedings with regard to the actions of the other party which are the subject
matter at issue in connection with such proceedings.
44.8. Each of the parties hereto hereby irrevocably (i) agrees that
any suit, action or other legal proceeding against any of them arising with
respect to this Lease shall be brought in the courts of the United States
within the State of Michigan (Eastern District, Southern Division) or (if a
basis of federal jurisdiction does not exist) the Xxxxx County, Michigan
Circuit Court or applicable District Court having jurisdiction under the
circumstances; and (ii) waives any and all objections any of them might
otherwise now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any of the courts referred to in this Section or to
service of any writ, summons or other legal process in accordance with any of
the provisions therefor set forth referred to in this Section.
45. TENANT'S ENVIRONMENTAL OBLIGATIONS
Except as shall exist upon the Commencement Date, or be caused by
Landlord or as shall migrate from a point source property other than the
Demised Premises, Tenant shall not cause or permit (with the exception of any
such substances may have been upon the Demised Premises when delivered to
Tenant by Landlord, other than as placed there by or at the instruction of
Tenant or its contractors or agents) any hazardous substances to be upon,
about, or a part of, the Demised Premises. Tenant shall, at its sole cost and
expense, promptly take all actions to comply fully with all present and future
federal, state, or local laws, ordinances, regulations, or governmental
policies concerning hazardous material (whether directed to Landlord or Tenant,
or both), and all actions to enable Tenant or Landlord to use and lease the
Demised Premises free of hazardous substances, in each case to the extent that
such hazardous substance was caused or permitted by Tenant to be there
("CORRECTIVE ACTIONS"). Corrective Actions include, without limitation the
investigation of the environmental condition, the preparation and delivery of
any notices, studies, or reports, and the performance of any cleanup, disposal,
removal, remedial, or restoration work. When any Corrective Actions affect the
condition of any area in the Demised Premises, even in the absence of hazardous
substances, Tenant shall, at Tenant's sole cost and expense, take the further
action of putting the affected area in a condition (without hazardous
substances) that is
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as good as or better than the condition the area was in or required to be in
before taking any Corrective Actions, whichever is better in Landlord's
opinion, despite any lower standard allowable under any regulations, or
applicable federal, state, or local laws, ordinances, or governmental policies.
Tenant shall obtain Landlord's written consent before taking any actions, which
consent Landlord shall not unreasonably withhold or delay. In the event of any
communication between Tenant and any governmental authorities concerning
hazardous substances upon, about, as a part of, above, or beneath the Demised
Premises, Tenant shall promptly send Landlord copies of all such notices and
correspondence and promptly inform Landlord fully of all other such
communications. The foregoing restrictions shall not forbid Tenant's use or
storage of customary cleaning, copying and other agents in quantities customary
to office use, so long as that use and storage conforms to the requirements of
applicable law. Tenant shall indemnify Landlord against, hold Landlord
harmless from, and reimburse Landlord for, any and all claims, losses, damages,
costs, and expenses, including, without limitation, reasonable attorneys' fees,
court costs (whether at trial or appeal, in arbitration, or otherwise) and the
costs and expenses of investigation (collectively, "LIABILITY" or
"LIABILITIES", as appropriate), incurred by Landlord and which arise out of or
in connection with any or failure by Tenant to perform any covenant or
agreement of Tenant contained in this Section. Tenant's obligations hereunder
shall survive any termination of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date set forth in Section 1 (a).
WITNESS:
DEARBORN ATRIUM ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: DEARBORN PARTNERS, a Michigan co-
partnership is General Partner
Xxxxxxx X. Xxxxxxx By: [sig.]
------------------------- ------------------------------------------
Xxxxxxx X. Xxxxxxx Its: Managing Partner
------------------------------------------
Xxxx X. Xxxxx "LANDLORD"
-------------------------
Xxxx X. Xxxxx
NATIONAL TECH TEAM, INC., a Delaware corporation
[sig.] By: [sig.]
------------------------- ------------------------------------------
[sig.] Its: Cheif Financial Officer
------------------------- ------------------------------------------
"TENANT"
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EXHIBIT A
LEGAL DESCRIPTION
Xxxx 00 xxxx 00 & Xxxx 00 xxxx 00, inclusive of "Detroit Arsenal Ground"
subdivision, T2S, RIOE, City of Xxxxxxxx, Xxxxx County, Michigan, according to
the plot thereof as recorded in Volume "B" of Private Plots, Xxxxx County
Records.
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EXHIBIT B
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EXHIBIT C
BUILDING STANDARDS
DEARBORN ATRIUM OFFICE CENTER
By Landlord's Contractor:
The following work shall be performed by Landlord's Contractor
pursuant to plans and specifications (the "APPROVED PLANS") which shall be
mutually agreed upon by both Landlord and Tenant. The parties shall have a
period of fifteen (15) days after the execution of the Lease in which to agree
upon the Approved Plans. However, if they cannot do so within that period, the
Lease shall not terminate, but the Anticipated Commencement Date shall be
extended for a period equal to the number of days beyond that initial fifteen
(15) day period before the Approved Plans are in fact approved by both parties.
If the parties shall fail to agree upon the Approved Plans on or before
December 31, 1996, this Lease shall thereafter be terminable by either Landlord
or Tenant upon no less than five (5) days prior written notice to the other.
1. General Conditions
1.1. Standard Allowances:
The standard allowances as outlined below are maximum limits
to be provided at no cost to the Tenant, for the area of
35,006 square feet contained in Suites 160 and 200, subject to
the limitations set forth in Section 4.2 of the Lease.
2. Standard Work Performed by Landlord at Landlord's Cost:
2.1. Partitions and Wall Finishes:
Office partitions will be constructed of 5/8" drywall each
side of 3 5/8" - 25 ga. Metal studs, unless otherwise noted
on the Approved Plans, with one (1) coat primer and two (2)
coats flat latex paint.
3. Interior Doors and Hardware
Solid core oak doors, 3' x 9', stained finish in hollow metal frames,
painted with Building Standard latch sets. One (1) suite entry door
to be provided by Landlord as shown on Approved Plans.
4. Floor Covering and Base:
Landlord will furnish from landlord's sample board a carpet of
commercial quality, at a cost allowance of $15.00-$17.00 per square
yard installed, including a 4" straight vinyl base.
5. Electrical:
Wall receptacles - in accordance with the Approved Plans; Switches -
in accordance with the Approved Plans; Telephone outlets - in
accordance with the Approved Plans; Electrical outlets shall be 110
volt, standard.
6. Lighting:
Standard recessed 2' x 4', fluorescent lamp fixture to provide average
of 70 foot candles to work area, one (1) Lithonia fixture 2GT-44O-A12.
7. 2 x 4 lay-in ceiling - 9' O" high grid to be white painted metal.
Tile to be non-directional fissured numeral tile.
8. HVAC System:
Landlord will provide leased premises with Building Standards heating
and air conditioning so that the temperature does not exceed 78
degrees with 55 percent relative humidity in the summer time and is
not lower than 65 degrees in the winter time, in the times specified
in the Lease. If special Tenant equipment requires modification of
HVAC capacities, Tenant will be responsible for additional HVAC to
maintain above standards.
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9. Window Coverings:
The Landlord shall be responsible for repairing, replacing as
necessary and cleaning the existing mini-blinds.
10. Suite Signage:
Entrances will be signed by Landlord with Building Standard type faces
and mounted heights.
11. Keys:
The Tenant will comply with Landlord's keying system to be furnished
by Landlord.
12. Sprinkler Heads:
The Landlord will furnish sprinkler heads as required by the
municipality, based on the approved floor plans within the Approved
Plans.
13. Design Services:
Tenant shall utilize the services of Landlord's designer for the
preparation of the necessary Tenant layout, Approved Plans and working
drawings.
14. Tenant Work Above Building Standards:
If the Approved Plans approved by Tenant includes items of work above
the Building Standard allowances as outlined above, such Approved
Plans will be submitted by Landlord to the General Contractor for the
determination of cost of such items of work.
After the approval by Tenant of such above Building Standard costs,
Tenant will pay as follows:
At time of approval of cost;
When work is 50% completed;
Upon completion.
If there are any changes requested by Tenant after completion, Tenant
will be responsible for all architectural and engineering costs and
related design expenses resulting from such changes. No such changes
will be made without prior written approval of Landlord. Landlord
will respond within fifteen (15) days.
Landlord will not be responsible for delay in occupancy by Tenant
because of changes to plans after approval and sign-off by Tenant.
15. In the event the Tenant chooses wall finish, floor finish or base that
is other than those identified above, the allowances and cost
established by the Landlord shall remain in force, but such changes
shall first be approved by all parties to this Lease and if the finish
of the Demises Premises is delayed by such selections by the Tenant,
the Landlord shall not be responsible for the completion of the
Demised Premises as to the occupancy and completion date. All
finishes must be noted on the Approved Plans. Tenant may substitute
for Building Standard allowance as long as the price per unit of any
like substitution is not greater than that of the Building Standard.
16. On all existing space contained in suites 100, 145, 175, 185, 195 and
295, containing 19,853 square feet, a renovation allowance will be
given as provided in Section 4.1 of the Lease.
17. The allowances given to Tenant under this Lease shall not be available
for personal property (including without limitation furnishings,
cables and similar items). However, Landlord acknowledges that Tenant
has certain unique requirements which are peculiar to and necessary
for Tenant's business, particularly in the number of telephone and
cable outlets. In applying the allowances, therefore, Landlord shall
reasonably accommodate those unique requirements which exceed or do
not specifically come within the Building Standards (subject,
nevertheless, to a maximum overall expenditure by Landlord as provided
within each such allowance).
APPROVED BY TENANT: [sig.]
----------------------------------
Chief Financial Officer
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EXHIBIT D
BUILDING RULES AND REGULATIONS
Attached to and made a part of Lease dated November 18, 1996, between DEARBORN
ATRIUM ASSOCIATES LIMITED PARTNERSHIP ("LANDLORD") and NATIONAL TECH TEAM, INC.
("TENANT").
Tenant agrees for itself, its employees, agents, clients, customers, 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 Building:
(a) Any sign, lettering, picture, notice or advertisement installed within
the Premises which is visible form the public corridors within the
Building shall be installed in such manner and be of such character
and style as Landlord shall approve in writing, which approval shall
not be unreasonably withheld. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or in a position
to be visible from outside the Building.
(b) Tenant shall not use the name of the Building for any purpose other
than that of the business address of Tenant, and shall not use any
picture or likeness of the Building in any circulars, notices,
advertisements or correspondence.
(c) 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 the exterior of the Building.
(d) No animals or pets or bicycles or other vehicles shall be brought or
permitted to be in the Building or the Premises.
(e) Tenant shall not make excessive noise, cause disturbances or
vibrations, or use or operate any musical, electrical or electronic
devices or other devices that emit loud sounds or air waves which may
disturb or annoy other tenants or occupants of the Building.
(f) Tenant shall not make any room-to-room canvas to solicit business from
other tenants of the Building and shall cooperate to prevent the same.
(g) Tenant shall not create any odors which may be offensive to other
tenants of the Building.
(h) Tenant shall not waste electricity, water or air-conditioning and
shall cooperate fully with Landlord to assure the most efficient
operation of the Building's hearing and air-conditioning. Tenant
shall not adjust the 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.
(i) No additional locks or similar devices shall be attached to any door
and no locks shall be changed except by Landlord. 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 combinations of all
locks, safes, cabinets and vaults which are not removed by Tenant.
(j) Tenant assumes full responsibility for protecting the Premises from
theft, 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.
(k) 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.
(l) Tenant shall not employ any person or perform any cleaning, repairing,
janitorial, decorating, painting, or other services or work in or
about the Premises, except with the approval of Landlord, which
approval shall not be reasonably withheld.
(m) 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.
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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.
(n) Tenant shall no overload any floor 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 location 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 the 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 therefor at the office of the Building
and shall present such writing to a designated employee of Landlord.
(o) Tenant shall not bring into the Building or Premises inflammables such
as gasoline, kerosene, naphtha and benzine, or explosives or any other
articles of an intrinsically dangerous nature. Tenant shall not in
any manner deface or damage the Building.
(P) Movement in or out of the Building of furniture of 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 and in a manner to
be agreed upon between Tenant and Landlord by prearrangement before
performance. 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.
(q) Landlord shall not be responsible for any lost or stolen property,
equipment, money or jewelry from the leased Premises or the public
areas of the Building regardless of whether such loss occurs when the
leased Premises are locked or not.
(r) No food shall be prepared or cooked in the Demised Premises, and the
Premises shall not be used for housing, lodging, sleeping or for any
immoral or illegal purpose. Nothing contained in this clause,
however, shall be construed to prohibit Tenant's operation of an
employee coffee lounge facility in the Demised Premises, wherein a
microwave oven may be used. Further, Tenant shall not install or
operate and/or permit to be installed or operated, in the Demised
Premises, any vending machine of any kind whatsoever.
(S) The work of a 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 hardship to Landlord in discharging its obligations
regarding cleaning services.
(t) Tenant will refer all contractors and installation technicians
rendering any services for Tenant to Landlord for supervision and
approval before performance of any services. Tenant will not permit
any mechanic's liens to be placed against the Demised Premises and any
contract Tenant enters into for work to be performed on the Premises
will contain a waiver of mechanic's liens.
(u) Landlord shall designate, in its absolute discretion, the normal
business hours for the Building during which time the entrances to the
Building shall be unlocked. At all other times the entrances to the
Building shall be locked and Tenant shall not unlock or prop open any
entrance to the Building during any such time that the Landlord has
locked same.
(v) At all times that the Building has been locked, Tenant shall
personally open the door to allow its invited guests access to the
Building and upon such entrance Tenant shall personally escort such
guests to and from the Premises.
(w) Tenant agrees for itself, is employees, agents, clients, customers,
invitees and guests to not allow rollerblading, rollerskating, and
skateboarding on the Building premises.
Tenant shall be responsible for the observance of all of the foregoing rules
and regulations by Tenant's employees, agents, clients, customers, invitees and
guests.
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EXHIBIT E
JANITORIAL SERVICES
DAILY SERVICES (Five times per week)
1. Empty waste baskets.
2. Empty and clean ash trays, including ones in public areas.
3. Dust desk tops which are clear of working papers.
3.1. Dust reasonably accessible high areas and blinds.
4. Sweep or vacuum entire floor area - public and private.
5. Toilet rooms:
5.1. Empty all waste receptacles.
5.2. Sweep and wet mop floors.
5.3. Clean and disinfect all fixtures and clean mirrors and
shelves.
6. Clean and disinfect drinking fountains and water coolers.
7. Damp mop public vending areas. Damp wipe vending machines.
WEEKLY SERVICES:
1. Damp mop floors, stairways, lobbies and corridors.
2. Machine buff reception area, lunchroom and aisles.
3. Dust tops of file cabinets, ledges and baseboards, and heat
conductors.
4. Wash and disinfect all ceramic tile; toilet partitioning, fixtures and
waste receptacles in toilet rooms. Refill deodorant containers.
5. Removes smudges and scuff marks from all painted surfaces and glass
office partitions wherever possible - public and private areas.
Spot clean hall carpeting.
6. Police parking areas for rubbish and trash.
MONTHLY SERVICES:
1. Strip, wax and polish floor in reception area, lunchroom and aisles.
2. Wash entrance door glass and all glass in office partitions.
3. Wash outside and inside building entry mats.
QUARTERLY SERVICES:
1. Strip and rewax entire floor area with wax or floor treatment.
2. Wash first floor windows. (Upper floor windows shall be washed at six
month intervals)
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EXHIBIT F
EXCLUSIONS FROM EXPENSES
Expenses shall specifically exclude the following items:
(i) Expenses for amortization of any capital improvement which is erected
or installed for the use or benefit of a specific existing or
prospective tenant of the Development. Amortization expenses that are
included in operating expenses shall be reasonably determined by
Landlord in accordance with Generally Accepted Accounting Principles.
(ii) Expenses for painting, tenant improvements, redecorating, altering or
other special work, materials or services which Landlord performs with
respect to premises demised to other tenants in the Development or
provides specifically for any other tenant, or for which Landlord
receives direct reimbursement from another tenant.
(iii) Costs and expenses for repairs, replacement or other work occasioned
by a fire, windstorm or other casualty in excess of $5,000, which sum
represents Landlord's insurance deductible.
(iv) Costs and expenses arising in connection with any claim covered by an
insurance policy maintained or required to be maintained by Landlord
hereunder in excess of $5,000.00, which sum represents Landlord's
insurance deductible.
(v) Expenses incurred directly in procuring new tenants and retaining and
relocating existing tenants, including without limitation brokerage
commissions and expenses, legal, architectural, engineering and
other professional fees, advertising expenses and marketing expenses.
(vi) Principal, interest and/or prepayment charges of any kind paid or
payable with respect to any mortgage or obligation in the nature
of a mortgage.
(vii) All costs and expenses incurred in connection with any financing or
refinancing transaction.
(viii) All transaction costs associated with any sale or transfer of the
Landlord's interests.
(ix) Land rent or ground lease payments and costs and expenses related
thereto.
(x) Interest or penalty of any kind incurred as a result of any late
payment by Landlord, provided that the late payment is not occasioned
by a corresponding late payment or other default in payment or
performance by Tenant.
(xi) Property management fees in excess of five percent (5%) of all rental
and other charges payable by tenants in the Development.
(xii) Wages, salaries, benefits and other expenses of employing any person
over the rank of property manager or substantially equivalent title.
(xiii) Costs and expenses resulting from actual or alleged violation by
Landlord of the terms of any lease of space in the Development or of
any ground or underlying lease or mortgage, or of any law, rule
or regulation, of any governmental authority having jurisdiction over
the Development, except laws, rules or regulations adopted or first
having effect as a practical matter subsequent to the Commencement
Date, but only to the extent that they require physical changes to any
portion or all of the Development or changes in the current manner of
operating the Development in order to effect compliance (but there
shall not be included in any Common Area Expenses the cost of
remediation of any environmental condition which exists on or with
respect to the Development on or before the Commencement Date, or
caused by Landlord).
(xiv) Any costs incurred to affiliates of Landlord, except to the extent
such costs do not exceed the costs which would reasonably be incurred
for comparable services, materials or products from unrelated third
parties
(xv) Costs incurred for environmental remediation of conditions existing
prior to the date of this Lease.
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EXHIBIT G
SPECIAL LEASE PROVISIONS REQUIRED BY LANDLORD'S MORTGAGEE
Tenant agrees not to look to the holder of any first mortgage on the
Development (the "MORTGAGEE") as mortgagee, mortgagee in possession, or
successor in title to the premises, for accountability for any security deposit
required by the Landlord hereunder as security for the Tenant's performance of
this Lease.
Tenant agrees not to handle, store, or dispose of any hazardous or toxic
waste or substance upon the property comprising any portion or all of the
Development (for the purpose of this Exhibit G, the "PROPERTY") which are
prohibited by any federal, state or local statute, ordinance or regulation.
Tenant hereby covenants to indemnify and hold Landlord, its successors and
assigns, harmless from any loss, damage, claims, costs, liability or cleanup
costs arising out of Tenant's use, handling, storage or disposal of any such
hazardous or toxic wastes or substances on the property.
If Mortgagee or any other person acquires title to the Property pursuant
to the exercise of any remedy provided for in the Mortgage, Tenant covenants
and agrees to attorn to Mortgagee or such person as its new Landlord, and the
Lease shall continue in full force and effect as a direct Lease between Tenant
and Mortgagee or such other person upon all the terms, covenants, conditions
and agreements set forth in the Lease. However, in no event shall Mortgagee or
such person by (i) bound by any payment of rent or additional rent made by the
Tenant to the Landlord for more than one (1) month in advance; or (ii) bound by
any amendment or modification of the Lease adversely affecting the interest of
Mortgagee made without the written consent of the Mortgagee; or (iii) liable
for any act or omission of any prior Landlord (including Landlord); or (iv)
liable for the return of any security deposit (unless any such security deposit
has actually been received by Mortgagee); or (v) liable for any offsets,
credits or other claims against rentals for any prior periods and/or against
any other party or Landlord (including Landlord). Tenant agrees to execute all
Tenant estoppel certificates and attornment agreement as Mortgagee shall
require, provided that Tenant is given a non-disturbance and attornment
agreement by the mortgagee which is consistent with the provisions of the Lease
and reasonably satisfactory to Tenant.
Until Tenant is notified in writing to the contrary by Mortgagee, all sums
due under this Lease shall be paid to Mortgagee in accordance with any written
instructions Tenant receives from Mortgagee.
To the extent that the foregoing provisions are inconsistent with any
other provisions of the Lease, the foregoing provisions shall govern and
control.
-33-
34
LEASE COMMISSION AGREEMENT
DEARBORN ATRIUM ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited
partnership ("LANDLORD"), NATIONAL TECH TEAM, INC., a Delaware corporation
("TENANT") and XXXXX & XXXXX, Inc., a Delaware corporation ("BROKER"), in
consideration of the contemporaneous execution and delivery by each of a
certain "LEASE" between Landlord and Tenant, for Suites 100, 145, 160, 185,
195, 200 and 295, located in the Dearborn Xxxxxx Xxxxxx Xxxxxxxx, xx 000 Xxxxx,
Xxxxxxxx, Xxxxxxxx, hereby agree as follows:
Landlord shall be responsible for payment of all amounts due to Broker in
connection with the Lease, as provided under a Commission Agreement dated
September 16, 1996, between Landlord and Broker, which shall be paid in twelve
equal monthly installments (due on the first day of each month, with a 10 day
grace period), without interest, beginning on the Commencement Date, but to be
paid in full on or before December 31, 1997. However, in the event that
Landlord fails to make any payment under the Commission Agreement within 10
days after first due thereunder, and upon a further 10 days prior written
notice to Landlord by Tenant, Tenant may (but shall not be obligated to) make
any such payment to Broker and, in that event, the full amount of any such
payment may, at Tenant's option, be credited against and deducted from the next
payments of Basic Rental, Additional Rental or other charges otherwise payable
by Tenant to Landlord under the Lease, or Tenant may instead make a demand for,
and be immediately entitled to, full reimbursement thereof upon Landlord.
This Agreement has been executed as of the 15th day of November, 1996.
DEARBORN ATRIUM ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: DEARBORN PARTNERS, a Michigan co-
partnership as General Partner
By: [sig.]
--------------------------------------------
Its: Managing Partner
-------------------------------------------
"LANDLORD"
NATIONAL TECH TEAM, INC., a Delaware corporation
By: [sig.]
--------------------------------------------
Its: Chief Financial Officer
-------------------------------------------
"TENANT"
XXXXX & XXXXX, INC., a Delaware corporation
By: [sig.]
--------------------------------------------
Its: Sr. Vice President
-------------------------------------------
"BROKER"
