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EXHIBIT 10.15
I. LEASE OF THE PREMISES.................................................1
II. LEASE TERM............................................................1
III. BASE RENT ............................................................1
IV. COMMON COSTS AS ADDITIONAL RENT.......................................2
A. Taxes and Assessments.................................................2
B. CAM Charges...........................................................3
C. Estimated Payments....................................................3
D. Multiple Tenants - Proration of Taxes, Insurance, and CAM Charges.....4
E. Late Charges..........................................................4
1. Landlord May Incur Unanticipated Costs................................4
2. Tenant Owes Late Charge...............................................4
3. Late Charge is Fair Estimate..........................................4
4. If Tenant's Check Returned............................................4
5. Charges Become "Additional Rent"......................................4
6. Application of Money From Tenant......................................4
7. Payment by Landlord on Tenant's Behalf and Associated Charges.........4
8. Landlord May Pursue Other Remedies....................................5
9. Landlord May Require Advance Quarterly Payment........................5
V. SECURITY PROVISION....................................................5
VI. INSURANCE.............................................................6
A. Property Insurance....................................................6
B. Liability Insurance...................................................6
C. Form, Amount and Coverage, Etc........................................6
D. Increase in Insurance Premium.........................................6
E. Accidents.............................................................6
F. Payment By Landlord...................................................6
G. Waivers of Claims/Subrogation.........................................6
VII. USE...................................................................7
A. Use...................................................................7
B. Use of Common Areas...................................................7
C. Management and Operation of Common Areas..............................7
VIII. DEFAULT...............................................................7
IX. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT..............................8
X. MISCELLANEOUS DEFAULT PROVISIONS......................................9
XI. ASSIGNMENT AND SUBLETTING............................................10
XII. HAZARDOUS SUBSTANCES.................................................10
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XIII. ALTERATIONS..........................................................11
A. Changes, Alterations and Additional Construction.....................11
B. Manner of Construction...............................................12
C. Title to Alterations.................................................12
XIV. SURRENDER............................................................12
A. Delivery of Possession...............................................12
B. Holding Over.........................................................13
C. Removal of Personal Property.........................................13
D. Retention of Personal Property.......................................13
XV. RIGHT TO MORTGAGE....................................................13
XVI. ESTOPPEL CERTIFICATES................................................13
XVII. MAINTENANCE AND REPAIRS..............................................14
A. Utilities............................................................14
B. Cleaning and Upkeep..................................................14
C. Grounds Maintenance..................................................14
D. Snowplowing..........................................................14
E. Landlord's Right of Entry............................................14
F. Repairs by Landlord..................................................14
G. Repairs by Tenant....................................................14
H. Liens................................................................15
XVIII. DAMAGE OR DESTRUCTION...............................................16
XIX. CONDEMNATION.........................................................17
A. Total Taking.........................................................17
B. Award on Total Taking................................................17
C. Partial Taking.......................................................17
D. Reconstruction.......................................................17
E. Award on Partial Taking..............................................18
F. Temporary Taking.....................................................18
G. Settlement Agreement.................................................18
H. Abatement in Basic Rent..............................................18
XX. LIABILITY; INDEMNIFICATION OF LANDLORD AND TENANT....................18
A. Damage in General....................................................18
B. Indemnification of Landlord..........................................18
C. Indemnification of Tenant............................................19
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XXI. MISCELLANEOUS PROVISIONS.............................................19
A. Governing Law........................................................19
B. References...........................................................19
C. Binding Effect.......................................................19
D. Entire Agreement.....................................................19
E. Enforceability of Provisions.........................................20
F. Remedies Not Exclusive...............................................20
G. Consequential and Indirect Damages...................................20
H. Re-Leasing...........................................................20
I. Advertising and Signs................................................20
J. Quiet Enjoyment......................................................20
K. Sale by Landlord.....................................................20
L. Limitation of Liability..............................................21
M. Authority............................................................21
N. No Liability for Curtailment, Etc., of Services......................21
O. Survival.............................................................21
P. Notices..............................................................21
GUARANTOR PAGE.............................................................22
EXHIBIT A - Hazardous and Toxic Materials...................................1
EXHIBIT B - Rules and Regulations...........................................1
1. Control of Common Areas...............................................1
2. Observance of Rules ..................................................1
3. No Obstruction .......................................................1
4. Security of Premises .................................................1
5. Locks.................................................................1
6. No Soliciting.........................................................1
7. No Advertising........................................................1
8. Proper Use of Facilities..............................................1
9. Load Limits on Floors.................................................1
10. Machinery and Equipment...............................................1
11. Moving of Equipment ..................................................2
12. Replacement of Broken Glass...........................................2
13. No Hazardous Materials................................................2
14. Good Houskeeping......................................................2
15. Landlord Not Liable...................................................2
16. Modifications to Rules and Regulations................................2
17. Drives and Parking Areas..............................................2
18. Storage and Loading Areas.............................................2
19. Contractors and Service Maintenance...................................2
20. Lodging...............................................................2
21. Exterior Installations................................................2
22. Waivers...............................................................3
23. Additions to Lease....................................................3
24. Access to Roof........................................................3
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25. Sales From Premises...................................................3
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LEASE
THIS LEASE is made effective as of July 22, 1998, between DART CONTAINER
CORPORATION OF MICHlGAN, a Michigan corporation with offices at 000 Xxxxxxxx
Xxxx, Xxxxx, Xxxxxxxx 00000 ("Landlord"), and GENOMIC SOLUTIONS, INC., a
Delaware corporation, currently located at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxx 00000 ("Tenant").
I. LEASE OF THE PREMISES. Landlord, in consideration of the rents to be paid
and the covenants and agreements to be performed by Tenant hereby leases to
Tenant for the Term set forth below, the following described property (the
"Premises"), located in Oakwood Executive Park (the "Park"):
Xxx 0, Xxxxx X, Xxxxxxx Xxxxxxxxx Xxxx, according to the Plat
thereof recorded at Liber 50, Page 38 of Plats, Xxxxxx County
Records, and commonly known as 0000 Xxxxxxxxx Xxxxx, Xxxxx X,
Xxxxxxx, Xxxxxxxx.
Tenant shall be entitled to park in common with other tenants. Tenant will be
allowed thirty (30) assigned parking spaces within the Park, immediately
adjacent to the Premises and signage shall be placed by Landlord at the
entryway(s) to the parking area indicating that such parking spaces are for
Tenant's use only.
Tenant hereby hires the Premises for the Lease Term and covenants to pay, or
cause to be paid, to Landlord, at the dates and times set forth herein, the
entire Rent.
II. LEASE TERM. The term of this Lease ("Lease Term") shall commence on the
22nd day of July, 1998 ("Commencement Date"), which shall be the later of
the date that the Certificate of Occupancy is issued by the appropriate
municipal authority or the date which has been agreed to by Landlord and
Tenant. Unless terminated earlier in accordance with the terms of this
Lease, this Lease shall terminate on July 21, 2003 ("Termination Date").
III. BASE RENT. During the Lease Term, Tenant shall pay annual Base Rent and all
other rent due and owing by Tenant under this Lease ("Additional Rent") to
Landlord at such place as Landlord shall from time to time designate in
writing. Annual Base Rent will be payable in equal monthly installments, as
follows:
Lease Year Annual Base Rent Monthly Installment
---------- ---------------- -------------------
1 $77,000.04 $6,416.67
2 80,520.00 6,710.00
3 84,036.00 7,003.00
4 87,890.04 7,324.17
5 91,850.04 7,654.17
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If Tenant has not been in default under the terms of this Lease, Tenant shall
have a one-time option to renew the Lease for an additional five (5) year term.
Tenant must notify Landlord in writing of its intent to renew the Lease at least
three (3) months before the Termination Date set forth above, or the Lease shall
terminate on such Termination Date. The Annual Base Rent for the extended Lease
Term will be payable in equal monthly installments, as follows:
6 $95,983.29 $7,998.61
7 100,302.54 8,358.54
8 104,816.15 8,734.68
9 109,532.88 9,127.74
10 114,461.86 9,538.49
A. All Monthly installments of Base Rent shall be payable to Landlord in
advance on the first day of each month during the Lease Term without
notice, demand, deduction or set off, except as expressly set forth
herein. Tenant shall pay the first month's installment of Base Rent on
the date of Tenant's execution of this Lease.
B. As used in this Lease, the term "Rent" shall include all amounts
payable pursuant to this Lease and all other additional charges or sums
payable to Landlord hereunder. All Rent due and owing by Tenant under
this Lease shall be paid by Tenant to Landlord without deduction, set
off or abatement.
C. Tenant's obligation to pay Base Rent, Additional Rent, and all other
charges due and owing by Tenant under this Lease shall survive the
expiration or earlier termination of this Lease.
D. Right of First Refusal. Tenant shall have the right of first refusal to
lease the adjacent premises known as Xxx 0, Xxxxx X, Xxxxxxx Xxxxxxxxx
Xxxx, provided Tenant has not been in default of any provision of the
Lease.
IV. COMMON COSTS AS ADDITIONAL RENT.
A. TAXES AND ASSESSMENTS. Tenant shall be responsible for and agrees to
pay directly to Landlord its prorata share as Additional Rent all ad
valorem real property taxes and assessments which may be levied or
assessed by any lawful authority during each calendar year during the
term of this Lease against the Premises or any part thereof
(hereinafter referred to as the "Taxes"). 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 real property taxes
as revenue sources, and which in whole or in part are measured or
calculated by or based upon the Premises, the freehold estate of the
Landlord in and to the Premises, the leasehold estate of the Tenant
created herein, or the rent and other charges payable hereunder. In
no event shall Tenant be obligated to pay any income taxes, Single
Business Tax, inheritance, estate, gift, transfer taxes, penalties and
interest of Landlord. Landlord currently represents that there are no
special assessments on the Property. Should any special assessment be
incurred, Tenant shall be responsible only for its prorata share of
installments due during the Lease Term.
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Taxes shall be computed by adding all taxes levied against the Premises
during the calendar year regardless of the tax bill's stated period of
coverage. Tenant will be billed its respective share thereof either for
the entire year or its prorata share of any partial year in which
Tenant occupies the Premises. As an accommodation and not a condition
of this Lease, Landlord will provide Tenant with a copy of the tax xxxx
after it has been paid.
B. CAM Charges. During the Lease Term, Tenant shall pay to Landlord, as
Additional Rent, Tenant's prorata share of all reasonable common area
electrical, grounds maintenance, security services (if any) and other
common area charges and expenses (the "CAM Charges"), as provided
below. The term "grounds maintenance" shall include, without
limitation, all landscaping, planting, lawn and grounds care, all
maintenance of and improvements to the grounds and other common areas
adjacent to the Premises and to all sidewalks, driveways, loading
areas, parking areas, and all snow and trash removal. Current monthly
estimated CAM Charges, based on fifty-four and 3/10 percent (54.30%) of
building occupancy, are One Thousand Six Hundred Forty Dollars
($1,640.00).
C. Estimated Payments. Prior to the Commencement Date and prior to January
1 of each calendar year during the Lease Term, or as soon as possible
thereafter, Landlord shall deliver to Tenant an estimate of: (1) the
total Taxes assessed for that calendar year (the "Tax Estimate"); (2)
the total Insurance rates for that calendar year (the "Insurance
Estimate"); and (3) the total CAM Charges for that calendar year (the
"CAM Estimate"). (The Tax Estimate, the Insurance Estimate and the CAM
Estimate are sometimes referred to hereinafter collectively as the
"Common Cost Estimates".) In addition, at that time, Landlord shall
provide Tenant with a statement of Tenant's estimated prorata share of
the foregoing charges due pursuant to subsections (A) and (B) above and
subject to the proration described in subsection (D) below and any
proration due as a result of an incomplete calendar year at the
commencement or end of the Lease Term. Tenant shall thereafter during
that calendar year pay to Landlord one-twelfth (1/12) of the amount of
Tenant's Share of the Common Cost Estimates at the same time its
monthly installments of Base Rent hereunder are due and payable. In the
event Landlord shall not have furnished the Common Cost Estimates to
Tenant by January 1 of any calendar year, then until the first day of
the month following the month in which the Common Cost Estimates are
furnished to Tenant, Tenant shall continue to pay to Landlord on the
first day of each calendar month its share of the Common Cost Estimates
based on the previous year's estimate. At such time as Landlord
furnishes the Common Cost Estimates to Tenant, Landlord shall give
Tenant notice stating whether the aggregate amount of the installments
of Tenant's Share of Tax Increase, Insurance Increase and CAM Charges
previously paid for such calendar year is more or less than the
aggregate amount of the installments due for such portion of the
calendar year as computed in accordance with the Common Cost Estimates,
and (1) if there shall be a deficiency, then within thirty (30) days
after the Tenant receives the Common Cost Estimates, Tenant shall pay
the amount of such deficiency, (2) if there shall have been an
overpayment, Landlord shall credit Tenant in the amount thereof toward
the subsequent installments of the Tax Increase, Insurance Increase and
CAM Charges, and (3) on the first day of the first month next following
the month in which the Common Cost Estimates are furnished to Tenant,
and monthly thereafter for the balance of such calendar year, Tenant
shall pay to Landlord one-twelfth (1/12) of the amount of Tenant's
Share of the Tax Increase, Insurance Increase and CAM Charges as set
forth in the Common Cost Estimates. Tenant's right to contest CAM
Charges shall be limited to six months from
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date of notification by Landlord. In the event Tenant contests any
applicable charges, Landlord shall make all relevant books and records
available for audit by Tenant upon request.
D. MULTIPLE TENANTS - PRORATION OF TAXES, INSURANCE, AND CAM CHARGES. Real
estate taxes, property insurance and CAM Charges shall be prorated
based upon the square footage occupied by each tenant in relationship
to the total square footage of the Premises, including each tenant's
prorata share of common areas. Tenant's prorata share is fifty-four and
3/10 percent (54.30%).
E. LATE CHARGES.
1. LANDLORD MAY INCUR UNANTICIPATED COSTS. Tenant's failure to pay
Rent, Additional Rent, or any other Lease costs when due under
this Lease may cause Landlord to incur unanticipated costs. The
exact amount of such costs are impractical or extremely difficult,
to ascertain. Such costs may include, but are not limited to,
processing and accounting charges and late charges that may be
imposed on Landlord by any ground lease, mortgage, or other lien
encumbering the Park
2. TENANT OWES LATE CHARGE. Therefore, if Landlord does not receive
the Rent, Additional Rent, or any other Lease costs in full on or
before the third (3rd) business day of the month it becomes due,
Tenant shall pay Landlord a late charge, which shall constitute
liquidated damages, equal to here Hundred Twenty-Five Dollars
($325.00) ("Late Charge"), which shall be paid to Landlord
together with such Rent, Additional Rent, or other Lease costs
then in arrears.
3. LATE CHARGE IS FAIR ESTIMATE. The parties agree that such Late
Charge represents a fair and reasonable estimate of the cost
Landlord will incur by reason of such late payment.
4. IF TENANT'S CHECK RETURNED. For each Tenant payment check to
Landlord that is returned by a bank for any reason, Tenant shall
pay both a Late Charge (if applicable) and a Returned Check Charge
or such amount as shall be customarily charged by Landlord's bank
at the time.
5. CHARGES BECOME "ADDITIONAL RENT". All Late Charges and any
Returned Check Charge shall then become Additional Rent and shall
be due and payable immediately, along with such other Rent,
Additional Rent, or other Lease costs then in arrears.
6. APPLICATION OF MONEY FROM TENANT. Money paid by Tenant to Landlord
shall be applied to Tenant's account in the following order: (a)
to any unpaid Additional Rent, including, without limitation, Late
Charges, Returned Check Charges, legal fees and/or court costs
legally chargeable to Tenant, and Operating/CAM Charges; and then
(b) to unpaid Base Rent.
7. PAYMENT BY LANDLORD ON TENANT'S BEHALF AND ASSOCIATED CHARGES. If
Tenant fails to make any payment or expenditure required to be
paid by it under the terms of the Lease, Landlord may, at its
option, make such payment or expenditure on behalf of Tenant. In
that event, the amount of any such payment or expenditure together
with interest at the rate
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of ten percent (10%) per annum from due date forward, shall be
immediately due and payable to Landlord as Additional Rent.
8. LANDLORD MAY PURSUE OTHER REMEDIES. Nothing herein contained shall
be construed so as to compel Landlord to accept any payment of
Rent, Additional Rent, or other Lease costs in arrears or Late
Charge or Returned Check Charge should Landlord elect to apply its
rights and remedies available under this Lease or at law or equity
in the event of default hereunder by Tenant. Landlord's acceptance
of Rent, Additional Rent, or other Lease costs in arrears or Late
Charge or Returned Check Charge pursuant to this Clause shall not
constitute a waiver of Landlord's rights and remedies available
under this Lease or at law or equity.
9. LANDLORD MAY REQUIRE ADVANCE QUARTERLY PAYMENT. If Rent due
hereunder shall be late for three (3) consecutive months, then
Landlord shall have the option to require that the Base Rent due
shall be paid quarterly, in advance.
V. SECURITY PROVISION. Landlord acknowledges the receipt of Fifteen Thousand
Dollars ($15,000.00), which it is to retain as security for Tenant's faithful
performance of all the covenants, conditions, and agreements of the Lease.
But in no event shall Landlord be obligated to apply the security upon rents or
other charges in arrears or upon damages for Tenant's failure to perform its
obligations. Landlord, at its sole discretion, may elect to apply the security
to any delinquent amount owed by Tenant and shall give Tenant notice of the
fact. Landlord's right to possession of the Premises for nonpayment of rent or
for any other reason shall not be affected by reason of the fact that Landlord
holds this security.
The security, if not applied toward the payment of rent in arrears or toward the
payment of damages suffered by Landlord by reason of Tenant's default under the
Lease, is to be returned to Tenant at the expiration of the Term of the Lease
provided Tenant is not in default of any provision of the Lease. In no event is
the security to be returned until Tenant has vacated the Premises and delivered
possession of same in an acceptable condition to Landlord.
If Landlord so uses or applies all or any portion of the security, Tenant shall
deposit sufficient cash with the Landlord to restore the security to the full
amount within fifteen (15) days after written demand therefor, and failure to do
so shall be a material and immediate breach of this Lease.
In the event of the sale or other transfer of the Building and/or Property,
Landlord to transfer the security to such purchaser or Transferee, and Landlord
shall thereupon be released by Tenant from all liability for return of such
security. Tenant covenants that it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as security. As an accommodation
and not a condition of this Lease, Landlord will provide Tenant with notice of
the sale of the Building and/or Property.
In the event that Landlord repossesses the Premises because of Tenant's default,
Landlord may apply the security to all damages suffered to the date of
repossession and may retain the security to apply to such damages as may be
suffered or shall accrue thereafter by reason of Tenant's default or breach.
Landlord shall not be obligated to keep the security as a separate fund but may
mix the security with its own funds.
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VI. INSURANCE.
A. PROPERTY INSURANCE. During the term of the Lease, Landlord, on behalf
of Tenant, shall keep the Premises insured with Broad Form fire and
extended coverage insurance in an amount not less than $540,000.00 for
the suite based on a value of $980,000.00 for the entire building, as
determined annually. Landlord will xxxx Tenant monthly, as Additional
Rent, one-twelfth (1/12) of the annual insurance premium for the
Premises. Landlord at its expense will maintain liability insurance on
the Common Areas of the Park.
B. LIABILITY INSURANCE. Tenant, at Tenant's sole cost and expense, shall
maintain comprehensive public liability insurance against any claims
for bodily injury, death, or property damage, occurring on, in or
about the Premises, and against contractual liability for such claims,
such insurance to afford minimum protection in the amount of One
Million Dollars ($1,000,000.00) or in such higher amount as Landlord
may deem reasonably necessary. Landlord and any mortgagee of the
Premises designated by Landlord shall be named as co-insured or
additional insured parties under all such policies. Tenant may provide
public liability insurance under a blanket policy or policies which
cover other properties in addition to the Premises. Tenant shall
provide Landlord with an Evidence of Insurance form (ACORD27) or, in
the alternative and at Landlord's sole discretion, Landlord may require
Tenant to provide a true copy of the actual liability insurance policy.
C. FORM, AMOUNT AND COVERAGE, ETC. The form, amount, and coverage of each
policy of insurance which Tenant is required to maintain shall be
subject to Landlord's approval, which shall not be unreasonably
withheld. Tenant shall not permit any condition to exist on the
Premises and shall not commit any act or omission which would wholly or
partially invalidate any insurance.
D. INCREASE IN INSURANCE PREMIUMS. If anything done, omitted to be done,
or allowed by Tenant to be kept on the Premises shall cause the rate of
fire or other insurance on the Premises, or on other property of
Landlord or of other Tenants in the Park, to be increased beyond the
minimum rate from time to time applicable to the Premises or such other
property, Tenant shall pay, as Additional Rent, the amount of any such
increase upon Landlord's demand.
E. ACCIDENTS. Upon the occurrence of any accident, injury, or personal
property casualty in or about the Premises, Tenant shall give immediate
notice thereof to Landlord, and shall provide Landlord with evidence
that any liability of Landlord relating thereto is covered by the
insurance which Tenant is required by this Lease to carry.
F. PAYMENT BY LANDLORD. Tenant shall deliver copies of all required
policies to Landlord. If Tenant fails to maintain the insurance
coverage required under this section, Landlord may, at its option, pay
the cost of maintaining the required insurance, which shall be
Additional Rent due and payable immediately upon demand.
G. WAIVERS OF CLAIMS/SUBROGATION. Landlord and Tenant hereby waive all
rights of action against the other for any loss, cost, damage, or
expense resulting from fire, explosion, or any other casualty or
occurrence incurred by either, which loss, cost, damage, or expense is
then covered in whole or in part by insurance maintained or required to
be maintained pursuant to
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this Lease, and each party waives any right of subrogation that might
otherwise exist in or accrue to any person or account thereof.
H. If Tenant can procure like type insurance at a lower cost from a
company which has the same rating as Landlord's insurance, Landlord
will give Tenant a rent credit equal to the savings. Proof of such
insurance shall be the same as required in Section VI(B).
VII. USE.
A. USE. The Premises shall be used for laboratory, warehouse, production,
light assembly, light manufacturing, and office purposes only. Tenant
shall not permit any liens to attach or exist as against the Premises
or the Park, nor commit any waste. The Premises shall not be used for
any illegal purposes, nor in any manner shall Tenant allow, suffer,
or permit any vibration, noise, odor, light or other effect that could
constitute a nuisance or trespass for Landlord or any other tenant,
their customers, agents, or invitees. Upon notice by Landlord to
Tenant that any of the aforesaid is occurring, Tenant agrees to
immediately remove or control the same.
B. USE OF COMMON AREAS. Landlord grants to Tenant and its agents,
employees and customers a non-exclusive license to use the Common
Areas in common with others during the Lease and, subject to the
exclusive control and management thereof at all times by Landlord.
C. MANAGEMENT AND OPERATION OF COMMON AREAS. Landlord Will operate and
maintain or will cause to be operated and maintained the Common Areas
in a manner deemed by Landlord to be reasonable and appropriate and in
the best interests of the Park, as per the Lease. Landlord will have
the right: (1) to establish, modify, and enforce reasonable rules and
regulations with respect to the Common Areas; (2) to enter into,
modify, and terminate easements and other Common Areas; (3) to close
temporarily any or all portions of the Common Areas; and (4) to do any
or perform such other acts in and to said areas and improvements as,
in the exercise of good business judgment, Landlord shall determine to
be advisable. A copy of the current Rules and Regulations is attached
as Exhibit B and made a part of this Lease.
VIII. DEFAULT. The following shall constitute Events of Default under this
Lease.
A. Failure of Tenant to pay Rent or Additional Rent or any other charges
payable hereunder within ten (10) days after the due date for such
payment.
B. Failure of Tenant to perform any of the other terms, conditions or
covenants of this Lease to be observed or performed by Tenant for a
period of more than thirty (30) days after written notice of such
failure is mailed to Tenant.
However, if a non-monetary default cannot reasonably be cured within
thirty (30) days, no default shall take place if Tenant begins to cure
said default within the thirty (30) days and diligently prosecutes
said cure to completion within an agreed upon time as set forth in
writing by Landlord and Tenant.
C. Filing Of a voluntary petition in bankruptcy or being filed against is
an Event of Default.
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E. If Tenant makes an assignment for the benefit of creditors or enters
into an arrangement with creditors.
For the purposes of the Events of Default specified in this Section, the word
"Tenant" shall include, without limitation: (1) any party comprising Tenant,
should more than one person or entity execute this Lease as Tenant, or any
general partner or joint venturer of Tenant or any such party; and (2) any
person or entity now or hereafter liable, whether primarily, secondarily or
continently, for the performance of the duties and obligations of Tenant under
this Lease, including without limitation any principal, maker, endorser,
guarantor, or surety.
IX. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT. If any Event of Default shall
have occurred and shall be continuing beyond those periods of time herein
granted to cure the same, then Landlord shall have all of the following rights
and remedies:
A. Landlord may, by notice to Tenant, accelerate all Basic Rent due
hereunder and otherwise payable in installments over the remainder of
the Lease Term, and, at Landlord's option, Additional Rent to the
extent that Additional Rent can be determined and calculated to a fixed
sum; and the amount of accelerated Rent shall be due and payable to
Landlord upon Landlord's demand. Additional Rent which has not been
included, in whole or in part, in accelerated Rent shall be due and
payable by Tenant during the remainder of the Lease Term, in the
amounts and at the times otherwise provided for in this Lease.
B. Landlord may, at Landlord's option, with judicial process, enter upon
the Premises and remove Tenant and any and all other persons therefrom
and take and retain possession thereof and of any and all goods,
inventory, equipment, fixtures, and all other personal property of
Tenant situated in the Premises without liability for trespass or
conversion, and may sell all or any part thereof at public or private
sale. Tenant agrees that five (5) days' prior notice of any public or
private sale shall constitute reasonable notice. The proceeds of any
such sale shall be applied, first, to the payment of all costs and
expenses of conducting the sale or caring for or storing said property,
including all attorneys' fees; second, toward the payment of any
indebtedness, including (without limitation) indebtedness for Rent,
which may be or may become due from Tenant to Landlord; and third, to
pay the Tenant, on demand in writing, any surplus remaining after all
indebtedness of Tenant to Landlord has been fully paid.
C. Landlord from time to time may re-let the Premises, or any part
thereof, for such term or terms and on such conditions as Landlord, in
its sole discretion, may determine, and Tenant shall be liable to
Landlord for the difference between the amount of Rent and Additional
Rent payable hereunder and the net proceeds of such re-letting. In
computing the amount of such difference there shall be added thereto
such reasonable expenses as Landlord may have incurred in connection
with. such re-letting, including without limitation reasonable
attorneys' fees, brokerage commissions, and expenses for keeping the
Premises in good order and for preparing them for re-letting.
D. Landlord may give Tenant notice of Landlord's intention to terminate
this Lease on a date specified in such notice, on which date this lease
shall terminate. If landlord shall so elect to terminate this Lease,
then Landlord shall be entitled to recover from Tenant, in addition to
all accrued Rent and other sums due from Tenant as of such termination
date, damages in an amount equal to: (1) the amount of Rent reserved
for the balance of the Lease Term, less the
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fair rental value of the Premises for the balance of the Lease Term,
plus (2) all costs and expenses incurred by Landlord in securing
possession from Tenant, in restoring the Premises to the condition in
which Tenant is herein obligated to surrender same to Landlord, in
preparing to re-let the Premises, in maintaining and safeguarding the
Premises in attempting to re-let the Premises, and in recovering said
damages from Tenant, which costs and expenses shall include, without
limitation, attorneys' fees and expenses, costs of security services,
costs of storing or disposing of property left upon the Premises and
cleaning and restoration costs: No act or proceeding done or undertaken
by Landlord with respect to an Event of Default shall constitute a
termination of this Lease by Landlord unless and until Landlord shall
give to Tenant the termination notice specified in the first sentence
of this Subsection D.
E. If Tenant is in monetary default twice in any six (6) month period,
Landlord shall have the right to demand automatic wire transfer of Rent
from Tenant's account.
Landlord's pursuit of any one or more of the remedies provided in this
Lease shall not constitute an election of remedies excluding the
election of another remedy or other remedies, or a forfeiture or waiver
of any rent or other amounts payable under this Lease by Tenant or of
any damages or other sums accruing to Landlord by reason of Tenant's
violation of any provision of this Lease. No action taken by or on
behalf of Landlord shall be construed to mean acceptance of a surrender
of this Lease. No failure of Landlord to pursue or exercise any of
Landlord's powers, rights or remedies or to insist upon strict and
exact compliance by Tenant with any provision of this Lease, and no
custom or practice at variance with the terms of this Lease, shall
constitute a waiver by Landlord of the right to demand strict and exact
compliance with the terms and conditions of this Lease.
X. MISCELLANEOUS DEFAULT PROVISIONS. The right to enforce all of the
provisions of this Lease may, at the option of any assignee of Landlord's rights
in this Lease, be exercised by any such assignee.
A. Any notation or statement by Tenant on any draft, check, or other
method of payment of any obligation hereunder, or in any writing
accompanying or accomplishing such payment, which notation or statement
purports to impose conditions on such payment or to invoke the doctrine
of accord and satisfaction, shall be absolutely void and of no effect,
and may be ignored by Landlord.
B. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and every right
and remedy shall be cumulative and in addition to any other right or
remedy given hereunder or now or hereafter existing at law or in
equity. Landlord shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant,
agreement, condition or provision of this Lease and to a decree
compelling performance of any covenant, agreement, condition or
provision of this Lease, or to any other remedy allowed by law or in
equity.
C. No failure by a party hereto to insist upon the strict performance of
any covenant, agreement, term or condition of this Lease on the part of
the other party to be performed, or to exercise any permitted right or
remedy consequent upon a default therein, and no acceptance of the
other party's performance or, in the case of Landlord, of Tenant's
payment of full or partial Rent after such default, shall constitute a
waiver by the party not in default of such default or
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of such covenant, agreement, term or condition, or any right or remedy
of the party not in default with respect thereto.
XI. ASSIGNMENT AND SUBLETTING. Tenant shall not, directly or indirectly,
without the prior written consent of Landlord, which shall not be unreasonably
withheld, sell, assign, hypothecate or otherwise transfer this Lease or any
interest hereunder, or sublet the Premises or any part thereof, or permit the
use of the Premises by any party other than Tenant. Consent to any assignment or
sublease shall not be deemed a waiver of the right of Landlord to disapprove any
further assignment or subletting. Not withstanding any permitted assignment or
subletting, Tenant shall remain liable for the full and complete performance,
satisfaction and compliance with each and every agreement, term, covenant,
condition, requirement, provision and restriction of this Lease, as principal
and not as surety or guarantor, and as if no such assignment or subletting had
been made.
Landlord is expressly given the night to assign any or all of its interest in
the Premises or this Lease. Landlord shall give written notification to Tenant
promptly after any such assignment.
XII. HAZARDOUS SUBSTANCES. The term "Hazardous Substances," as used in this
Lease, shall mean pollutants, contaminants, toxic or hazardous wastes, or any
other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law", which term shall
mean any existing or future federal, state, or local law or ordinance relating
to pollution or protection of the environment. Tenant hereby represents and
warrants and covenants with Landlord that:
A. Tenant has obtained and shall maintain in good standing all local,
state and federal government licenses necessary in order to conduct its
operations at the Premises;
B. No activity shall be conducted on the Premises by Tenant that will
produce any Hazardous Substance, except for such activities that: (1)
are part of the ordinary course of Tenant's business activities; (2)
have been approved in advance by Landlord in writing; and (3) are
conducted in accordance with all Environmental Laws (the "Permitted
Activities");
C. The Premises shall not be used in any manner by Tenant for the storage
of any Hazardous Substances except for the temporary storage of such
materials that: (1) are used in the ordinary course of Tenant's
business; (2) have been approved in advance by Landlord in writing; and
(3) are properly stored in a manner and location meeting the
requirements of all Environmental Laws (the "Permitted Materials"); and
which are listed on Exhibit A attached to and made a part of this
Lease.
D. No portion of the Premises shall be used by Tenant as a landfill or a
dump;
E. Tenant shall not install any underground tanks of any type;
F. Tenant shall not cause any surface or subsurface conditions to exist or
come into existence that constitute, or with the passage of time may
constitute, a public or private nuisance;
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G. Tenant shall not permit any Hazardous Substances to be brought onto
the Premises, except for the Permitted Materials, and if so brought or
found thereon, the same shall be immediately removed, with proper
disposal, and all required cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws at Tenant's sole
expense.
The Tenant shall defend, indemnify, and hold harmless the Landlord, its
employees, agents, officers, directors, and shareholders from and against any
and all claims of every kind of nature, known or unknown, contingent or
otherwise, demands, criminal and civil penalties, fines, liabilities,
settlements, judgments, damages, costs or expenses, including without
limitation, actual reasonable attorneys' fees, consultants' fees, investigation
and laboratory fees, court costs and all litigation expenses, arising out of or
in any way related to: (1) the disposal, release or threatened release of any
Hazardous Materials caused by Tenant, on, over, under, from or affecting the
Premises or the soil, water, vegetation, buildings, personal property, persons,
or animals; (2) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or in any way related to the release of
such Hazardous Materials on the Premises by Tenant; (3) any lawsuit brought or
threatened, settlement reached, or government order relating to the release of
such Hazardous Materials by Tenant with respect to the Premises; and/or (4) any
violation of Governmental Regulations which are based upon or in any way
related to the release of such Hazardous Materials by Tenant.
The Landlord shall defend, indemnify, and hold harmless the Tenant, its
employees, agents, officers, directors, and shareholders from and against any
and all claims of every kind of nature, known or unknown, contingent or
otherwise, demands, criminal and civil penalties, fines, liabilities,
settlements, judgments, damages, costs or expenses, including without
limitation, actual reasonable attorneys' fees, consultants' fees, investigation
and laboratory fees, court costs and all litigation expenses, arising out of or
in any way related to: (1) the, disposal, release or threatened release of any
Hazardous Materials caused by Landlord or any third party other than Tenant, on,
over, under, from or affecting the Premises or the soil, water, vegetation,
buildings, personal property, persons, or animals; (2) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or in any way related to the release of such Hazardous Materials on the Premises
by Landlord or any third party other than Tenant; (3) any lawsuit brought or
threatened, settlement reached, or government order relating to the release of
such Hazardous Materials by Landlord or any third party other than Tenant with
respect to the Premises; and/or (4) any violation of Governmental Regulations
which are based upon or in any way related to the release of such Hazardous
Materials by Landlord or any third party other than Tenant.
Landlord shall have the right, at any time, to inspect the Premises for
violations of this section.
XIII. ALTERATIONS.
A. Changes, Alterations and Additional Construction. Tenant, at its
expense, shall be responsible for any and all other improvements to
the Premises, including but not limited to those required for
compliance with fire and building codes, the Americans with
Disabilities Act (and any regulations implementing said Act), and any
other applicable federal, state, or local law or regulation, provided
such improvements are required on account of Tenant's activities on
the Premises after Lease commencement. Tenant shall not construct any
change, alteration, or addition in or to the Premises or the Park (any
and all of the foregoing being sometimes herein collectively called an
"Alteration") unless and until, in each instance, Tenant shall have
submitted to Landlord plans, specifications and other materials for
such Alteration as Landlord
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may request and Landlord shall have approved the same in writing,
within thirty (30) days of receipt of same.
B. Manner of Construction. All Alterations which Landlord shall have
approved shall be constructed by Tenant, without expense to Landlord,
in a good, first class, and workmanlike manner, employing new
materials of first class quality, and in compliance with the
Landlord-approved plans and specifications therefor and all applicable
permits, laws, ordinances and regulations and order, rules and
regulations of the Board of Fire Insurance Underwriters or any other
body exercising similar functions, and in compliance with the terms
and conditions of this Lease.
C. Title to Alterations. Except to the extent otherwise expressly
provided herein, upon the completion of construction of each
Alteration, such Alteration shall automatically be deemed part of the
Premises for purposes of this Lease. Notwithstanding the foregoing,
upon any termination of this Lease or Tenant's right of possession of
the Premises, prior to such expiration or termination, all such
Alterations, or any parts or parts thereof designated by Landlord,
shall be removed from the Premises and the Premises restored
substantially to their condition immediately prior to the construction
thereof, all at Tenant's expense. Notwithstanding the foregoing, upon
any termination of this Lease or Tenant's right of possession of the
Premises, any or all such Alterations, or any parts thereof, may be
removed at Tenant's discretion, prior to such expiration or
termination. In such events, at Tenant's expense, the Premises shall
be restored to substantially the same condition immediately prior to
the addition of the Alteration, reasonable wear and tear excepted.
XIV. SURRENDER.
A. Delivery of Possession. Tenant shall, subject to condemnation and
casualty on the Expiration Date of the Lease Term, or upon any earlier
termination of this Lease, or upon any termination of Tenant's right
to possess the Premises pursuant to the provisions of this Lease,
surrender and deliver up the Premises into the possession and use of
Landlord without fraud or delay and in the condition in which Tenant
has herein agreed to maintain them, broom clean and free of all debris
and hazardous or toxic materials caused by Tenant and not present on
the Commencement Date, and free and clear of all lettings,
occupancies, liens and encumbrances, created by or through Tenant.
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B. Holding Over. If Tenant holds over in the Premises after the expiration
of the Lease Term or any earlier termination of this Lease or of
Tenant's right to possess the Premises in violation of the Lease, then
at Landlord's option, and without limitation to any right or remedy of
Landlord with respect to such holding over, such holding over shall
create a tenancy from week-to-week only, subject to Tenant's obligation
to pay Rent equal to one hundred twenty-five percent (125%) of the
Basic Rent (prorated to a weekly basis) in effect immediately prior to
such expiration or termination (as well as any Additional Rent), and
subject to all the provisions and conditions of this Lease, other than
provisions relating to length of Lease Term, which tenancy may be
terminated at any time by Landlord giving notice thereof to Tenant.
Landlord's acceptance of any such rental during the period of Tenant's
holding over shall not waive or otherwise affect any claim or right
which Landlord may have with respect to such holding over.
C. Removal of Personal Property. Any and all personal property, machinery,
and equipment furnished or installed by or at the expense of Tenant
which does not constitute part of the Premises shall be removed by
Tenant and all damage to the Premises caused by such removal repaired
by Tenant prior to the expiration or earlier termination of the Lease
Term or the termination of Tenant's right to possess the Premises.
D. Retention of Personal Property. Any personal property, machinery, or
equipment of Tenant which shall remain on the Premises after the
expiration of the Lease Term or earlier termination of this Lease or
Tenant's right to possess the Premises may, at the option of Landlord,
be deemed to have been abandoned by Tenant and may be retained by
Landlord as Landlord's property or be disposed of, without liability to
Landlord, in such manner as Landlord may see fit, or Landlord, at its
option, may require Tenant to remove the same at Tenant's expense. In
case of such removal, all costs of removal and of repairing any damage
to the Premises arising from such removal shall be paid by Tenant upon
Landlord's demand. Tenant shall pay to Landlord on demand (1) a
reasonable fee for storing and disposing of any such personal property,
and (2) all costs and expenses incurred by Landlord in storing and
disposing of any such personal property (including, without limitation,
counsel fees relating to claims against Landlord by any and all parties
claiming interests in such personal property).
XV. RIGHT TO MORTGAGE. Landlord reserves the right to subject and subordinate
the Lease to the lien of any mortgage or security interest now or hereafter
placed upon Landlord's interest in all or any part of the Premises and upon the
land, buildings, and fixtures of which the Premises are a part or upon any
buildings hereafter placed upon the land of which the Premises form a part.
Tenant covenants and agrees to execute and deliver upon demand such further
instruments subordinating this Lease to the lien of any present or future
mortgage or security interest or other lien as shall be desired by Landlord.
Landlord currently represents there is no mortgage on the Property. Tenant shall
be required to subordinate to any future mortgage only if a Non-Disturbance
Agreement is provided to Tenant.
XVI. ESTOPPEL CERTIFICATES. The parties agree, at any time and from time to time
upon not less than ten (10) days' prior written notice, to the other party, to
execute, acknowledge and deliver to the other party a statement in writing
certifying: (1) that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as
modified and stating the modifications); (2) whether there are then existing any
offsets or defenses against the enforcement of any of the terms, covenants or
conditions hereof upon the part of Landlord or Tenant to be performed (and if
so, specifying the same); and (3) the dates to which the Rent and other charges
have been paid in advance, if
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any, it being intended that any such statement delivered pursuant to this
Section may be relied upon by any prospective purchaser of the Premises.
XVII. MAINTENANCE AND REPAIRS.
A. Utilities. Tenant shall promptly pay all charges for utilities and
other services furnished to the Premises by Landlord or the applicable
utility company, including, but not limited to, gas, water,
electricity, fuel, light and heat. In the event any utilities
furnished to the Premises are not separately metered, Tenant shall pay
to Landlord, as Additional Rent, Tenant's share of the utilities. All
utilities charges reflect actual costs and will not be marked up by
Landlord.
B. Cleaning and Upkeep. Tenant shall keep the Premises, including any
adjoining parking areas, walkways, drives, streets, alleys or yards
clean and free of rubbish.
C. Grounds Maintenance. Tenant shall be responsible for all costs and
expenses related to maintaining the lawn, shrubs, and any other
landscaping on the Premises up to the standard which Landlord has
historically maintained. Cost will be included in Tenant's CAM
Charges.
D. Snowplowing. Tenant shall be responsible for all costs and expenses
for keeping the Premises free from ice and snow at all times. Cost
will be included in Tenant's CAM Charges.
E. Landlord's Responsibility and Right of Entry. Landlord agrees to
promptly provide the utilities, grounds maintenance and snowplowing
described in this Section XVIII. Landlord shall have the right to
enter upon the Premises at all reasonable hours, with prior notice,
for the purpose of inspection and repairs, except in case of
emergency in which case no notice shall be required.
F. Repairs by Landlord. Tenant accepts the Premises in their condition at
Lease commencement and as suited for the uses intended by Tenant.
Except as otherwise expressly provided in this Lease, Landlord shall
not be required to make any repairs or improvements to the Premises,
except repairs to the foundation, exterior walls or roof of the
Building as necessary for safety and tenantability, and then only if
not brought about by any act or neglect of Tenant, its agents,
employees, contractors, invitees, licensees or assignees. Without
limiting the generality of the foregoing limitation, Landlord
specifically shall have no obligation to repair any interior or
exterior glass or doors (including loading doors) located in or on or
constituting a part of the Premises, nor shall Landlord have any
obligation to maintain exterior lighting, except that Landlord
provides a one (1) year warranty on all mechanical, electrical and
plumbing systems only.
During the first year of the Lease, Landlord shall be obligated to
promptly correct any defects in material or workmanship throughout the
Premises. Tenant is not responsible for any repairs if they are
required as a direct results of damage caused by Landlord.
G. Repairs by Tenant. Tenant shall repair, maintain, replace as
necessary, and keep in good, clean, and safe repair all interior
portions of the Premises and all equipment, fixtures, and systems
therein which are not specifically set forth as the responsibility of
Landlord elsewhere in this Lease. Tenant's repairs and replacements
shall include, without limitation, all electrical, plumbing, heating
and air conditioning systems, parts, components, and fixtures. In
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connection therewith, Tenant shall maintain in force at all times a
maintenance contract for the heating, ventilation and air conditioning
equipment: (1) acceptable in form and content to Landlord; (2) with a
service organization acceptable to Landlord; and (3) providing for at
least semi-annual maintenance of such equipment, and shall provide
Landlord with a true copy of such maintenance contract. Tenant shall
also promptly repair or replace all partitions and all glass and plate
glass within or constituting a part of the Premises immediately when
cracked or broken, unless caused by Landlord or Landlord's employees
or agents, and Tenant shall be liable for and shall hold Landlord
harmless against all loss, cost, and damage (including reasonable
attorneys' fees) arising from any damage or injury to the Premises or
the Park or to any person or property caused or contributed to by any
act or negligence of Tenant, any invitee, agent, affiliate, customer
or client of Tenant or anyone in Tenant's control or employ. Landlord
gives to Tenant exclusive control of the interior Premises and shall
be under no obligation to inspect the Premises. Tenant shall
immediately reasonably attempt to report in writing to Landlord any
defective conditions known to Tenant which Landlord is required to
repair, and failure to promptly report such defects shall make Tenant
liable to Landlord for any liability incurred by Landlord by reason
of such defects, and Tenant indemnifies and holds Landlord harmless
from and against all loss, costs and damage (including reasonable
attorneys' fees) arising from or related to Tenant's failure to so
report such defective conditions. In no event shall Tenant cause or
allow any outside storage of trash, refuse, debris, or anything else
on the Premises. All personal property of Tenant or Tenant's
employees, agents, affiliates or invitees located in or brought upon
the Premises or any part of the Park shall be at risk of Tenant only,
and Landlord shall not be liable to Tenant or any other party for any
damage thereto or theft thereof resulting from any cause, unless
caused by Landlord's negligence.
If Tenant does not comply with this Section, Landlord shall have the
right to do or cause to be done all acts necessary to bring Tenant
into compliance and xxxx Tenant for all costs involved.
Tenant shall obtain all necessary governmental permits before making
any renovations, improvements, alterations or additions to the
Premises. Landlord agrees to cooperate with Tenant in obtaining such
permits. However, Landlord shall have no obligation to pay any fees or
charges in connection therewith.
H. Liens. If a mechanic's or construction lien is filed against any
portion of the Premises or Park as a result of work undertaken by
Tenant, then within fifteen (15) days after receiving notice of any
such lien, Tenant shall discharge the lien either by payment of the
indebtedness due lien claimant or by filing a bond as provided by
statute.
If Tenant fails to discharge any lien in accordance with the terms
hereof, Landlord shall have the right to discharge the lien by filing
a bond or paying the indebtedness. In this event, Tenant shall pay the
cost of the bond or the amount of the lien indebtedness to Landlord as
Additional Rent immediately upon demand. If Tenant does not do so
within ten (10) days of demand by Landlord, then Tenant shall be in
default under this Lease and Landlord shall have the same remedies as
provided for in section 8.
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XVIII. DAMAGE OR DESTRUCTION.
A. If the Premises are rendered partially or wholly unfit for occupancy
by fire, the elements, act of God, or other casualty (fire, the
elements, acts of God, or other casualties hereinafter referred to as
a "Casualty"), and if such damage cannot, in Landlord's reasonable
estimation, be materially restored within one hundred twenty (120)
days after such Casualty, then Landlord may, at its sole option,
terminate this Lease as of the date of such Casualty and the Lease
Term shall end on such date as if that date had been originally fixed
in this Lease for the expiration of the Lease Term. Landlord shall
exercise its election to terminate provided herein by written notice
to Tenant within sixty (60) days after such Casualty. For purposes
hereof, the Premises shall be deemed "materially restored" if they
are in such condition as would not prevent or materially interfere
with Tenant's use of the Premises for the purpose for which it was
then being used.
B. If this Lease is not terminated pursuant to Subsection A above, then
Landlord shall proceed with all due diligence to repair and restore
the Premises, as the case may be (except that Landlord may elect not
to rebuild, and thus terminate this Lease, if such Casualty occurs
during the last year of the Lease Term exclusive of any renewal or
extension option that is unexercised at the date of such Casualty).
If Landlord shall fail to complete such repairs and material
restoration within one hundred fifty (150) days after the date of the
Casualty, then Tenant may at its option and as its sole remedy
terminate this Lease by delivering written notice to Landlord,
whereupon the Lease shall end on the date of such notice as if the
date of such notice were the date originally fixed in this Lease for
the expiration of the Lease Term hereof; provided, however, that if
construction is delayed because of changes, deletions, or additions
in construction requested by Tenant, or because of strikes, lockouts,
casualties, acts of God, war, material or labor shortages,
governmental regulation or control, or other causes beyond the
reasonable control of Landlord, then the period for restoration,
repair or rebuilding shall be extended for the amount of time
Landlord is so delayed. In no event shall Landlord be required to
rebuild, repair or replace any part of the partitions, fixtures,
additions, or other property and improvements that may have been
placed in or about the Premises by Tenant.
C. If this Lease shall not be terminated by Landlord pursuant to this
Section and if the Premises are unfit for occupancy in whole or in
part following such Casualty, then the Base Rent plus all other
Additional Rent payable during the period in which the Premises are
unfit for occupancy shall xxxxx in proportion to the percentage of
the retable area of the Premises rendered unusable by such Casualty;
provided, however, that no such abatement shall be made under the
provisions of this Subsection C if such Casualty shall have been
caused through the negligence or willful misconduct of Tenant, its
agents, employees, contractors, invitees, licensees, tenants, or
assignees.
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D. Notwithstanding anything herein to the contrary, if, following any
Casualty, the holder of any indebtedness secured by a mortgage or
deed to secure debt or similar instrument covering the Premises
requires that any insurance proceeds resulting from the Casualty be
paid to it rather than to Landlord for the rebuilding or restoration
of the Premises, then Landlord shall have the right to terminate this
Lease by delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such person,
whereupon the Lease shall end on the date of the Casualty as if the
date of such Casualty were the date originally fixed in this Lease
for the expiration of the Lease Term.
E. If any Casualty described in this subsection occurs, then Landlord
shall not be liable to Tenant for any inconvenience, annoyance, loss
of profits, expenses, or any other type of injury or damage resulting
from the repair of any such Casualty, or from any repair,
modification, arranging or rearranging of any portion of the Premises
or for termination of this Lease as provided in this subsection,
except to the extent of any bodily injury to persons or damage to
property resulting solely from Landlord's negligence or intentional
misconduct in performing such work.
XIX. CONDEMNATION.
A. Total Taking. In the event that the whole of the Premises shall be
taken under the exercise of the power of eminent domain or by
agreement with any condemnor in lieu of such taking (herein called a
"Total Taking"), then this Lease shall terminate as of the earlier of
the date when title thereto vests in the condemnor or the date when
possession thereof shall be delivered to the condemnor.
B. Award on Total Taking. The entire award with respect to any Total
Taking shall be paid to Landlord, except that Tenant shall be
entitled to any award which the condemnor may make, and which shall
be provided for by law, specifically for Tenant's moving expenses and
business dislocation damages, provided that same are not deducted
from the award otherwise payable to Landlord.
C. Partial Taking. In the event that any portion or portions of the
Premises or Common Areas shall be taken under the exercise of the
power of eminent domain or by agreement with any condemnor in lieu of
such taking (herein called a "Partial Taking"), then this Lease, only
as to the portion or portions so taken, shall terminate as of the
date possession thereof shall be delivered to the condemnor;
provided, however, if as a result of such Partial Taking, it is
economically unfeasible to reconstruct or operate for Tenant's
business the remaining portion of the Premises because of the
insufficiency in size of the remaining portion of the Premises or
Tenant's ability to access the Premises is severely reduced, and
Tenant so certifies to Landlord, then (1) this Lease shall terminate
thirty (30) days from the date possession of the part taken shall be
delivered to the condemnor, and (2) such Partial Taking shall be
deemed to be and treated as a Total Taking.
D. Reconstruction. If during the Lease Term there shall be a Partial
Taking, and if this Lease shall not be terminated on account thereof
pursuant to the provisions of the immediately preceding Subsection C,
then (1) Landlord shall repair and restore the remaining portion of
the Premises so that they constitute architectural units with the
same general character and condition to the nearest extent possible
under the circumstances as the previous Premises, and
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(2) this Lease shall remain in full force and effect with respect to
such remaining portion of the Premises, adjusting the proportionate
share accordingly. Landlord shall use its best efforts to complete the
reconstruction promptly and within the period mutually agreed upon by
the parties.
E. Award on Partial Taking. The entire award with respect to any Partial
Taking shall be paid to Landlord.
F. Temporary Taking. In the event a taking or condemnation of the
Premises, or any part thereof, shall be for temporary use or occupancy
or for a term of years only, then: (1) this Lease and all Tenant's
obligations hereunder shall continue in full force and effect (except
to the extent that performance by Tenant of Tenant's covenants and
agreements is prevented by such taking); (2) there shall be no
reduction or abatement of Rent; (3) Tenant shall be entitled to the
entire award with respect to any such taking, except that Landlord
shall be entitled to any portion of such award allocable to any period
of time beyond the expiration of the Term of this Lease; and (4) the
rights of Landlord and Tenant shall be unaffected by the other
provisions of this Article and shall be governed by applicable law or
Tenant shall have the option to terminate the Lease with no further
liability to Landlord.
G. Settlement Agreement. For the purposes of this Lease, all amounts paid
pursuant to an agreement with any condemnor in settlement of any
condemnation or any eminent domain proceeding affecting the Premises
shall be deemed to constitute an award made in such proceeding.
H. Abatement in Basic Rent. In a case of a Partial Taking which does not
result in a termination of this Lease, the annual Basic Rent payable
under this Lease, after possession of the portion so taken shall be
delivered to the condemnor, shall be reduced in the same proportion as
the amount of usable floor area of the Premises shall have been reduced
by such Taking, but any such Partial Taking shall not relieve Tenant
from Tenant's liability to pay the full Additional Rent payable under
this Lease, or from any of Tenant's other obligations hereunder, and
except as herein expressly provided.
XX. LIABILITY; INDEMNIFICATION OF LANDLORD AND TENANT.
A. Damage in General. Tenant agrees that Landlord, and its officers,
employees and agents and those of all affiliated legal entities shall
not be liable to Tenant, and Tenant hereby releases said parties, for
any loss, injury, death, or damage (including incidental or
consequential damages) to persons, property, or Tenant's business from
any cause whatsoever, unless such damage, loss or injury results from
the willful misconduct of Landlord, or its officers, employees or
agents. Landlord and its officers, employees, and agents shall not be
liable to Tenant for any such damage or loss, whether or not such
damage or loss results from willful misconduct, to the extent Tenant is
compensated therefor by Tenant's insurance.
B. Indemnification of Landlord. Tenant agrees to defend with counsel
reasonably satisfactory to Landlord, indemnify and save harmless
Landlord from and against any and all liabilities, claims, damages,
losses, cost and expenses, including without limitation attorneys'
fees, suffered or incurred by Landlord which is caused solely by: (1)
the conduct, operation or management of, or any work, act or thing
whatsoever by Tenant done in, on or about the
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Premises; (2) any condition of the Premises, resulting by reason of
Tenant's failure or refusal to perform its obligations under this
Lease; (3) any breach or default on the part of Tenant in the
observance or performance of any of its agreements or obligations
hereunder; (4) any act or omission of Tenant or any sublessee or
Assignee of Tenant or any of Tenant's or such sublessee's or Assignee's
agents, contractors, servants, employees, business invitees, licensees,
visitors or guests with respect to the Premises and/or Park; and (5)
any accident, injury to or death of any person or damage to any
property caused by Tenant or its officers, employees, agents,
contractors or invitees in or on the Premises. Landlord shall give
prompt written notice to Tenant of any claim asserted against Landlord
which, if sustained, may result in liability of Tenant hereunder, but
failure on the part of Landlord to give such notice shall not relieve
Tenant from Tenant's obligation to defend, indemnify and save harmless
Landlord as stated, except to the extent that the failure to give such
notice results in actual loss or damage to Tenant.
C. INDEMNIFICATION OF TENANT. Landlord agrees to defend with counsel
reasonably satisfactory to Tenant, indemnify and save harmless Tenant
from and against any and all claims, damages, losses, cost and
expenses, including without limitation attorneys' fees, suffered or
incurred by Tenant as the result of any accident, injury to or death of
any person or damage to any property solely caused in or about the
Premises by the gross negligence or willful misconduct of Landlord or
Landlord's employees or its authorized agents. Tenant shall give prompt
written notice to Landlord of any claim against Tenant which, if
sustained, may result in liability of Landlord hereunder, but Tenant's
failure to give such notice shall not relieve Landlord from Landlord's
obligation to defend, indemnify and save harmless Tenant as stated,
except to the extent that the failure to give such notice results in
actual loss or damage to Landlord.
XXI. MISCELLANEOUS PROVISIONS.
A. GOVERNING LAW. This Lease shall be construed and interpreted under the
laws of the State of Michigan applicable to contracts made and fully
performed within the state.
B. REFERENCES. All references made and pronouns used herein shall be
construed in the singular or plural, and in such gender as the sense
and circumstances require. All references to Section or paragraph
numbers or letters shall refer to sections or paragraphs of this Lease
unless otherwise indicated.
The headings inserted in this Lease are for reference purposes only and
shall in no way affect the construction of this Lease or limit the
generality of any of its provisions.
C. BINDING EFFECT. The terms and conditions of this Lease shall also bind
the respective heirs, successors, personal representatives and assigns
of the parties.
D. ENTIRE AGREEMENT. Except for the documents listed below, if any, this
Lease constitutes the entire agreement between the parties and shall be
deemed to supersede and cancel any other agreement between the parties
relating to the transaction herein contemplated. None of the prior and
contemporaneous negotiations, preliminary drafts or prior versions of
this Lease containing conditions not set forth herein shall be used by
any of the parties to construe or
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affect the validity of this Agreement. Each party acknowledges that no
representation, inducement or condition not set forth herein has been
made or relied upon by either party.
E. ENFORCEABILITY OF PROVISIONS. In case any provision of this Lease or
any agreement or instrument executed in connection herewith shall be
deemed invalid, illegal or unenforceable, such provision shall be
enforced to the fullest extent permitted by applicable law and the
validity of the remaining provisions hereof shall not in any way be
affected.
This Lease shall not be construed more strictly against one party as
opposed to the other, merely because it may have been prepared by
counsel for one of the parties. It is recognized that both Landlord
and Tenant have contributed substantially and materially to the
preparation of this Lease.
F. REMEDIES NOT EXCLUSIVE. All of the rights, remedies and benefits
provided by this Lease shall be cumulative and shall not be exclusive
of any other rights, remedies, and benefits allowed by law. One or more
waivers of any covenant or condition by Landlord shall not be construed
as a waiver of a further breach of the same or any other covenant or
condition.
G. CONSEQUENTIAL AND INDIRECT DAMAGES. In no event shall either party be
liable to the other for consequential or indirect damages arising out
of or as a result of breach of any provision of this Lease.
H. RE-LEASING. Tenant agrees that for a period commencing six (6) months
prior to the termination of this Lease, Landlord may show the Premises
to prospective tenants. Landlord may list the Premises for lease or
rent with a broker and may display in and about the Premises the usual
and ordinary signs.
I. ADVERTISING AND SIGNS. All signs and advertising displayed on and about
the Premises shall only advertise the business carried on upon the
Premises. Landlord shall control the character and size of all signs
and no sign shall be displayed except those approved in writing by
Landlord.
J. QUIET ENJOYMENT. Landlord covenants that Tenant, upon payment of all
the Rent and Additional Rent due under this Lease, and performance of
the covenants and obligations under this Lease or otherwise, may
peacefully and quietly occupy the Premises for the term of this Lease
including any written extensions or modifications of same.
K. SALE BY LANDLORD. In the event of any sale, conveyance, transfer, or
assignment by Landlord of its interest in and to the Premises, all
obligations under this Lease of the party selling, conveying,
transferring, assigning or otherwise disposing shall cease and
terminate and Tenant releases said party from same, and Tenant shall
thereafter look only and solely to the party to whom or which the
Premises were sold, conveyed, transferred, assigned or otherwise
disposed of for performance of all of Landlord's duties and obligations
under this Lease.
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L. LIMITATION OF LIABILITY. Landlord's obligation and liability to Tenant
with respect to this Lease shall be limited solely to Landlord's
interest in the Premises, and neither Landlord, nor any joint venturer,
partner, officer, director or shareholder of Landlord or its affiliated
legal entities or any of the joint venturers of Landlord shall have any
liability whatsoever with respect to this Lease.
M. AUTHORITY. Each party executing this Lease warrants that it has full
power, authority and legal right to execute and deliver this Lease, and
to keep and observe all of the terms and provisions of this Lease on
such party's part to be observed and performed. Each party warrants
that this Lease is its valid and enforceable obligation.
N. NO LIABILITY FOR CURTAILMENT, ETC., OF SERVICES. Landlord shall not be
liable in damages or otherwise and Tenant waives any claim for the
curtailment, delay, or failure in furnishing any services hereunder
from any cause whatsoever, except where such curtailment, delay or
failure is caused by Landlord's willful misconduct. In no event will
Landlord have any liability for any consequential, incidental, or
special damages in connection with furnishing services pursuant to this
Lease, nor shall any curtailment, delay, or failure in providing
services, regardless of cause, constitute an eviction of Tenant or
termination of this Lease. Landlord shall use reasonable efforts to
restore promptly the curtailed, delayed or failed service.
O. SURVIVAL. All agreements and obligations of Tenant hereunder which
require observance or performance after the expiration or termination
of this Lease, or which cannot reasonably be ascertained as having been
observed or performed at the time of such expiration or termination,
shall survive, and be enforceable against Tenant following such
expiration or termination.
P. NOTICES. Whenever a provision is made for notice of any kind, it shall
be served by United States first class mail, Federal Express, Airborne
Express, United Parcel Service, facsimile (acknowledged receipt only)
or personally delivered to the party being put on notice at the
addresses listed below or such other addresses as the parties may
indicate for themselves by written notice delivered in like manner.
IF TO LANDLORD: DART CONTAINER CORPORATION OF MICHIGAN
000 Xxxxxxxx Xxxx - Xxxxxxxx Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxxxxx Xxxxx
IF TO TENANT: GENOMIC SOLUTIONS, INC.
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
ATTN: Xxxxxxx Xxxxxxxx, President
WITH A COPY TO:
GENOMIC SOLUTIONS, INC.
00000 Xxxxxxxxx Xxxxx, Xx. 0X
Xxxxxxx, Xxxxxxxx 00000
ATTN: Office Manager
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This lease is signed and made effective as of the date first written above.
LANDLORD:
WITNESSED BY: DART CONTAINER CORPORATION OF
MICHIGAN
/s/ Xxxxxx X. Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxx
------------------------------ ----------------------------------------
[signature] Xxxxxxx X. Xxxxx
ITS: Treasurer
Xxxxxx X. Xxxxxxxx
------------------------------
[print name]
TENANT:
GENOMIC SOLUTIONS, INC.
BY: /s/ Xxxxxxx Xxxxxxxx
------------------------------ ----------------------------------------
[signature] Xxxxxxx Xxxxxxxx
ITS: President & CEO
------------------------------
[print name]
BY: /s/ Xxxxxx Richavalsky
------------------------------ ----------------------------------------
[signature] Xxxxxx Richavalsky
ITS: CFO
------------------------------
[print name]
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