1
EXHIBIT 10.18
LEASE AGREEMENT
000 XXXXXXXX XXXXX
XXX XXXXX, XX 00000
LANDLORD: 000 XXXXXXXX XXXXX L.L.C.
0000 X. XXXXXXX XXXXXX
XXX XXXXX, XX 00000
TENANT: SENSYS TECHNOLOGIES, INC.
0000 XXXXXXXX XXXX
XXXXXXXXX, XX 00000
PREMISES: South 12,500 square feet of 1st story building
000 Xxxxxxxx Xxxxx
XXX XXXXX, XX 00000
(See Attached)
Revised 9/30/98
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INDEX
PAGE
NUMBER
------
1.0. LEASE TERMS 1
---- -----------
1.1. Tenant 1
1.2. Tenant Address 1
1.3. Tenant Telephone 1
1.4. Landlord 1
1.5. Landlord Address 1
1.6. Landlord Telephone 1
1.7. Premises 1
1.8. Use 1
1.9. Date of Lease 1
1.10. Term of Lease 1
1.10.1. Start 1
1.10.2. End 1
1. 11. Rent 1
1.11.1. Total Base Rent 1
1.11.2. Monthly Base Rent 1
1.11.3. Due Date of First Monthly Base Rent 1
1.12. Complex Costs 1
1.12.1. Tenant Complex Cost Percentage 1
1.12.2. First Monthly Complex Cost Due 1
1.12.3. First Monthly Escrow Amount 1
1.13. Security Deposit 1
1.13.1. Security Deposit 1
2.0 PREMISES 3
--- --------
2.1. Complex 3
2.2. Premises 3
2.3. Improvements 3
3.0. TERM 4
---- ----
3.1. Term 4
3.2. Holding Over 4
4.0. RENT 5
--- ----
4.1. Base Rent 5
4.2. Tenant Complex Costs 5
5.0. SECURITY DEPOSIT 8
---- ----------------
5.1. Security Deposit 8
5.2. Holding of Security Deposit 8
5.3. Landlord Assignment of Security Deposit 8
5.4. Tenant Assignment of Security Deposit 8
3
5.5. Refund 8
PAGE
NUMBER
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6.0. USE 9
---- ---
6.1. Use of Premises 9
6.2. Delivery and Refuse 9
6.3. Parking 9
6.4. Right of Entry by Landlord 9
6.5. Rules and Regulations 10
6.6. Rights Reserved to Landlord 10
7.0. MAINTENANCE, REPAIR, ALTERATION 12
---- -------------------------------
7.1. Landlord's Obligations 12
7.2. Utilities 13
7.3. Exterior Lighting 13
7.4. Tenant's Obligations 13
7.5. Plumbing 14
7.6. Signs 14
7.7. Alterations 14
8.0. INSURANCE AND INDEMNITY 14
---- -----------------------
8.1. Indemnity 14
8.2. Landlord's Insurance 15
8.3. Tenant Insurance 15
8.4. Tenant Public Liability Insurance 15
8.5. Glass Insurance 15
8.6. Insurance Policies 16
8.7. Waiver of Subrogation 16
9.0. ASSIGNMENT 16
---- ----------
9.1. Tenant Assignment 16
9.2. Landlord Assignment 17
10.0. EMINENT DOMAIN 17
----- --------------
10.1. Total Condemnation 17
10.2. Partial Condemnation 17
10.3. Damages From Condemnation 17
11.0. DESTRUCTION OR DAMAGE TO PREMISES 18
----- ---------------------------------
11.1. Casualty Loss 18
12.0. TENANT BANKRUPTCY 18
----- -----------------
12.1. Tenant's Interest Not Transferab1e 18
12.2. Landlord's Option To Terminate 18
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PAGE
NUMBER
------
13.0. TENANT DEFAULT 19
----- --------------
13.1. Right to Re-Enter 19
13.2. Right to Re-Let 19
13.3. Legal Expenses 20
13 4. Receipt of Money After Termination of Lease 20
13.5. Self-Help 20
14.0. TENANT'S PROPERTY 21
----- -----------------
14.1. Taxes on Leasehold 21
14.2. Notice By Tenant 21
15.0. QUIET ENJOYMENT 21
----- ---------------
15.1. Landlord's Covenant 21
15.2. Tenant's Covenant 21
16.0. LEASE SUBORDINATE 22
----- -----------------
16.1. Subordination 22
16.2 Attornment 22
16.3. Tenant Off-Set Statement 22
MISCELLANEOUS 22
-------------
17.1. Successors 22
17.2. Waiver 23
17.3. Notice 23
17.4. Relationship 23
17.5. Consent Not Unreasonably Withheld 23
17.6. Accord and Satisfaction 23
17.7. Headings 24
17.8. Partial Invalidity 24
17.9. Reservation 24
17.10. Liens 24
17.11. Liability of Landlord 24
17.12. Force Majeure 25
17.13. Entire Agreement 25
17.14. Estoppel 25
17.15. Attorney Approval 25
RIDER A MODIFICATIONS OF LEASE 26
----- - ----------------------
RA.1. Terms 26
RA.2. Option To Renew 26
RA.3. Utilities Agreement 26
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ARTICLE 1.0 LEASE TERMS
----------- -----------
Section 1.1 Tenant : SENSYS Technologies Inc. "Tenant"
----------- ------------------------
Section 1.2 Tenant Address: 0000 Xxxxxxxx Xxxxx
----------- -------------------
Xxxxxxxxx, XX 00000
-------------------
Section 1.3 Tenant Telephone: (000) 000-0000
----------- --------------
Section 1.4 Landlord: 300 parkland Plaza, LLC, a limited liability corporation ("Landlord")
-----------
Section 1.5 Landlord Address: 0000 X. Xxxxxxx Xx.
----------- -------------------
Xxx Xxxxx, XX 00000
-------------------
Section 1.6 Landlord Telephone: (000) 000-0000
----------- --------------
Section 1.7 Premises: South 12, 419 S.F. of 1-story at 000 Xxxxxxxx Xxxxx
----------- ---------------------------------------------------
Xxx Xxxxx, XX 00000
---------------------------------------------------
Section 1.8 Use: Office, Engineering Labs, and Model Shop
----------- ----------------------------------------
Section 1.9 Date of Lease: December 1, 1998
----------- ----------------
Section 1.10 Term of Lease: Five (5) Years
------------ --------------
1.10.1. Start: December 1, 1998
----------------
1.10.2. End: November 31, 2003
-----------------
Section 1.11 Rent
------------
1.11.1 Total Base Rent: $558,855.00
-----------
1.11.2 Monthly Base Rent: $9,314.25
---------
1.11.3 Due Date of First Monthly Base Rent: December 1, 1998
----------------
Section 1.12 Complex Costs
------------
1.12.1. Tenant Complex Cost Percentage: 50%
---
1.12.2 First Monthly Complex Cost Due: December 1, 1998
----------------
1.12.3 First Monthly Escrow Amount: $3,200.00
---------
Section 1.13 Security Deposit
------------
1.13.1. Security Deposit: $12,575.00
----------------
1.13.2. Other Collateral: N/A
----------------
1.13.3. Guarantors: N/A
----------------------
WITNESSETH: Landlord, in consideration of the rents to be paid and
the covenants and agreements to be performed by Tenant, does hereby lease unto
Tenant, and Tenant hereby accepts this Lease of, the Premises upon the terms and
conditions of this lease, including pages 1 through 26 and all Riders and
Exhibits hereto, all of which are incorporated herein by this reference. Dated
the date first above written.
Witnesses: Landlord: 000 Xxxxxxxx Xxxxx, XXX, a limited
--------- -------- liability corporation, of Michigan
/s/ Xxxxxx X. Xxxxxx
------------------------
------------------------
By:
------------------------------
Its: Managing Member
---------------
/s/ Xxxxx Xxxxxx Tenant: SENSYS Technologies Inc.
------------------------ ------------------------
Assistant Secretary By:/s/ X. X. Xxxxx
------------------------ ---------------
Its: Senior Vice President of Finance
----------------------------------
0
XXXXX XX XXXXXXXX
XXXXXX XX XXXXXXXXX
Xx this 19th day of November, 1998, before me, a Notary Public in and
for said County, appeared Xxxxxxxxx X. Xxxxx, to me personally known, who being
by me duly sworn did say that he is an authorized general partner of 300
Parkland plaza L.L.C. a Michigan limited partnership, the partnership that
executed the within and foregoing instruments and as a general partner of said
limited partnership by authority of the other partners, acknowledged said
instruments to be the free act and deed of said limited partnership.
--------------------------------
Notary Public
County of Washtenaw
----------------------
My Commission expires: 03/09/01
------------
STATE OF VIRGINIA
COUNTY OF Prince Xxxxxxx
On this 13th day of November, 1998, before me, a Notary in and for
said County, appeared Xxxxxx X. Xxxxx to me personally known, who being by me
duly sworn, did acknowledge for himself and say that he is the Senior VP of
Finance of Sensys Technologies Inc., the entity described herein as Tenant, who
execute the within instrument as the duly authorized agent of Tenant with full
power to bind Tenant hereby who signed this Lease on behalf of Tenant and who
acknowledges said instrument to be the free act and deed of Tenant.
/s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
County of Prince Xxxxxxx
----------------------
My Commission expires: December 31, 2002
-------------------------
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ARTICLE 2.0. PREMISES
Section 2.1. Complex.
Landlord is the owner of fee title to the commercial real estate
complex known as 000 Xxxxxxxx Xxxxx which includes all common areas, parking
areas and sidewalks.
Section 2.2. Premises.
Subject to all terms and conditions of this Lease, Landlord hereby
leases to Tenant the space(s) within the Complex described in Section 1.7.
hereof, more fully described in Exhibit B hereto (the "Premises"), as well as
reasonable rights of uses in and to all common areas of the complex.
Section 2.3. Improvements.
The Premises are being leased to Tenant in an "as is" condition and
Tenant's taking possession shall be conclusive evidence against Tenant that the
Premises were in good order and satisfactory condition when Tenant took
possession except as to latent defects. Landlord has not made any promise to
Tenant to alter, remodel, or improve the Premises, the Complex, or any adjacent
area nor made any representation regarding the condition of the Premises or the
Complex except those provisions explicitly set forth in this Lease. Tenant may
make permanent or temporary alternations, additions, changes or improvements
(hereinafter "alternations") on or to the Premises upon receiving Landlord's
prior written consent in each instance. Such consent not be unreasonably
withheld, conditioned, or delayed. If Landlord consents to such alternations
by Tenant, Tenant shall pay the cost of such alternations, and before
commencement of the work or delivery of any materials to the Premises or
Complex, Tenant shall furnish Landlord with the following: (I) plans and
specifications, (ii) names and addresses of all contractors, (iii) copies of
contracts, (iv) necessary permits, (v) indemnification of Landlord in form and
mount reasonably satisfactory to Landlord against any and all claims, loss,
costs, damages, liabilities, and expenses which may arise in connection with
such alternations, (vi) waivers of lien for any and all labor, material or
equipment to e supplied or rendered in connection with such alternations, and
(vii) certificates of insurance from all contractors performing labor or
furnishing materials insuring Landlord against any an all liabilities which may
arise out of such alternations. All alterations shall be installed in a good,
workmanlike manner and only new materials shall be used. Whether tenant
furnishes Landlord the foregoing or not, Tenant hereby agrees to hold Landlord
harmless from and against any and all liabilities of every kind and nature
which may arise out of or be connected with said alterations. Upon completing
any alternations or additions, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills covering all
labor and materials expended and used in or for such alternations. All
alterations shall comply with all ordinances and regulations of the City of Xxx
Arbor and any department or agency thereof and with the requirements of all
federal, state, and local statutes and regulations of the State of Michigan and
any department thereof. All alterations and all improvements, temporary or
permanent, in or
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upon the Premises, placed there by Tenant shall become the property of Landlord
and shall remain upon the Premises at the termination of this Lease, by lapse
of time or otherwise, without compensation or credit to Tenant. If at the
expiration or earlier termination of this Lease and upon Landlord's request,
Tenant does not remove said additions and improvements, Landlord may remove the
same and Tenant shall pay the cost of such removal and damages occasioned
thereby to Landlord upon fifteen (15) days prior written notice. Tenant shall
remove its office furniture, machinery, medical and other property of every
kind and description (hereinafter "personal property") from the Premises within
a reasonable time of the termination of this lease, whether by lapse of time or
otherwise. If such personal property is not so removed, Landlord may request
its removal, and if Tenant does not remove it, Landlord may do so, and Tenant
shall pay the cost of such removal upon fifteen (15) days prior written notice.
ARTICLE 3.0. TERMS
Section 3.1. Term.
Tenant's right to occupy all or any part of the Premises shall
commence on 12:01 a.m. Eastern Standard Time on the date in Section 1.10.1
hereof and shall cease upon the earlier of:
1. 11:59 p.m. Eastern Standard Time on the date in Section 1.10.2
hereof, or
2. Tenant's default as described in Article 13.0 hereof.
Section 3.2. Holding Over.
If Tenant or anyone claiming under Tenant shall remain in possession
of the Premises or any part thereof after the expiration of the term of this
Lease without any agreement in writing between the Landlord and Tenant with
respect thereto, the person remaining in possession shall be deemed a
month-to-month tenant at a rental rate equal to one hundred and fifty percent
(150%) of the rent in effect upon the date of such expiration or termination
until tenancy is terminated in a manner provided by law.
ARTICLE 4.0. RENT
Section 4.1. Base Rent.
Tenant shall and hereby agrees to pay Landlord at the address set
forth in Section 1.5 hereof, or such other place or such other places as
Landlord may direct from time to time by notice to Tenant, payable monthly on
the first day of each month in advance in the amount set forth in Section
1.11.2 hereof ("Monthly Base Rent") commencing on the date described in Section
1.11.3 hereof and on the first day of every month thereof for the term of this
Lease. Tenant shall pay Additional Base Rent (described in Section 4.2 hereof)
and Tenant Complex Costs (described in Section 4.3 hereof) in addition to the
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Total Base Rent for the term of this Lease (the Total Base Rent, Additional
Base Rent and Tenant Complex Costs being sometimes hereinafter referred to as
"Rent"). Tenant's obligation to pay Rent shall be independent of every other
covenant in or regarding this Lease and Tenant hereby agrees to and shall pay
all Rent without notice or demand and without abatement, deduction, discount,
counterclaim or offset. If the term of this Lease shall commence on other than
the first day of a calendar month, then the Monthly Base Rent for such month
shall be prorated upon the number of days in that calendar month.
Section 4.2. Tenant Complex Costs.
(a) In addition to the payment of Total Base Rent and Additional
Base Rent, Tenant shall pay its proportionate share of the costs of operating
the Complex as such are computed in accordance with this Section 4.2 (such rent
herein referred to as "Tenant Complex Costs").
(b) On or before each Adjustment Date, or within ninety (90) days
thereafter, during the term of this Lease Landlord shall notify Tenant of the
expected Complex Costs (defined below) for the forthcoming calendar year based
upon contracts, union scales, tax information and other material available to
Landlord. Tenant shall pay, in advance, monthly installments equal to
one-twelfth (1/12) of the total amount of the projected Complex Costs
multiplied by the percentage described in Section 1.12.1 hereof. If Tenant is
notified of such estimate after the Adjustment Date, or if at any time during
the term of this Lease Landlord notifies Tenant that Landlord has determined
Complex Costs for such calendar year will be more or less than previously
estimated, upon the submission to Tenant of an adjusted estimate, the monthly
installments of Tenant Complex Costs to be paid by Tenant during such calendar
year shall be adjusted upward or downward, as the case may be, which adjustment
shall be made retroactive to the Adjustment Date for that calendar year. In
this event, Tenant shall pay Landlord within thirty (30) days of Landlord's
notice of increase the amount necessary to reflect an increase or Landlord
shall allow Tenant a credit against the next installment(s) of Tenant Complex
Costs due in such amounts as are necessary to reflect such decrease.
(c) "Complex Costs" shall consist of all reasonable costs,
expenses and disbursements of every kind, nature and description which Landlord
pays or is required to pay in connection with the ownership, management,
operation, maintenance and repair of the Complex, the land upon which the
Complex is located and of the personal property (related to the building),
fixtures, machinery, equipment, systems and apparatus located therein or used
in connection therewith. To the extent that any major repair or general
maintenance item is not done on a periodic basis, the cost thereof may be
amortized over the estimated life of such item and then only the amortized
amount applicable to any calendar year shall be included in Complex Costs in
such calendar year. Complex Costs shall include, but not be limited to, all
costs incurred by landlord for the maintenance, repair, and upkeep of parking
areas, access roads and facilities which may be furnished by Landlord within
the Complex, employee parking areas, driveways, lighting fixtures and
facilities, landscaped and planted areas, retaining walls, and all other areas
and improvements which may be provided by Landlord for the general use of
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improvements which may be provided by Landlord for the general use of all
tenants, their officers, agents, employees and customers. Costs also include
all real estate taxes, like assessments (whether they be general or special),
sewer rents, rates and charges, transit taxes, taxes based upon government
charges, and general, special, ordinary or extraordinary taxes (but not
including income or franchise taxes or any other taxes imposed upon or measured
by income or profits), which may be levied or assessed against any or all of
the Complex, the land on which it is located or the fixtures, machinery,
equipment, systems and apparatus located therein or used in connection
therewith (herein and collectively referred to as "Taxes"). In case of special
taxes or like assessments which may be payable in installments, only the amount
of each installment paid during a calendar year shall be included as Taxes for
that year. There shall be included in Taxes for any calendar year the amount
of all reasonable fees, costs and expenses (including attorneys' fees) paid
during such year in obtaining any refund or reduction thereof. If at any time
the method of taxation then prevailing shall be altered so that any new tax,
like assessment, levy, imposition, charge or any part thereof shall be imposes
in place therein, and shall be measured by or be based in whole or in part upon
the value of the Complex or land on which it is located, then all such new
taxes, like assessments levies, impositions or charges or part thereof, to the
extent that they are some measured or based, shall be included in Taxes to the
extent that such items would be payable if the value of the Complex and such
land were the only property of the Landlord subject thereto.
(d) Complex Costs shall not include Landlord's income taxes, costs
of alterations of any space in the Complex for tenants of costs, repair of
damages caused by insurable casualties or condemnation, depreciation, costs of
capital improvements to the Complex (provided, however, to any extent the
capital improvements, including the use of automobiles, reflects a reduction in
Complex cost, the amount of such capital costs shall be included as Complex
Costs amortized over the expected life of such capital improvements), interest
and principal payments on mortgages and other debt and ground rental payments
advertising and promotional expenditures, management or administrative fees
(except fees for a property management service), and any other expense which
under generally accepted accounting principles would not be considered a normal
maintenance or operating expense. Repairs or expenses scheduled less often
than annually may, at Landlord's election, be prorated over the period to which
such expenses are applicable.
(e) Landlord will cause to be kept books and records showing the
Complex Costs in accordance with the system of accounts and accounting, and in
accordance with generally accepted accounting principles and practices
consistently being maintained by Landlord for its properties. As soon as is
available after each Adjustment date, Landlord shall submit to Tenant a
computation of Complex Costs, if any, for the preceding calendar year to
reflect Tenant's proportionate share of the Complex Costs for the preceding
calendar year. Within thirty (30) days after the receipt of such statement.
Tenant shall pay any amount necessary to reflect any increase in Complex Costs
not previously paid because of the increase in Complex Costs for the preceding
calendar year, or Landlord shall pay or credit against the next monthly
installment of Complex Costs an amount necessary to reflect any excess payment
previously paid during the preceding
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year. Tenant shall have the right to inspect Landlord's books with respect to
the calculation of Complex Costs at reasonable times and upon reasonable
notice.
(f) Should this Lease commence or terminate for any
portion of the Premises at any time other than the first day
of a calendar year, the Complex Costs adjustment referred to
in this Section 4.2 shall be prorated for said space so that
said adjustment shall only apply for the days of the Lease
term for the partial year. This amount shall be computed by
the formula: Number of days of the lease term for such
partial year divided by 365, times the Complex Cost
Percentage, equals Complex Costs adjustment for the partial
year.
ARTICLE 5.0. SECURITY DEPOSIT
Section 5.1. Security Deposit.
Tenant agrees to deposit with Landlord the sum specified in Section
1.13.1 hereof, (the "Security Deposit"), as a deposit to secure the full faith
and faithful and timely performance by Tenant of all terms, conditions and
agreements of Tenant in this Lease. Tenant hereby agrees that in the event
Tenant defaults in any respect in any term, provision, covenant, agreement, or
condition of this Lease, including, but not limited to, the payment of any
Rent, without prior notice to Tenant, Landlord may use, apply, or retain the
whole or any part of the Security Deposit to the extent required for the
payment of any Rent and/or payment of any other sum in satisfaction of any
term, covenant, provision, agreement or condition to which the Tenant is in
default or for any sum which Landlord may have to expend or may be required to
expend by reason of Tenant's default.
Section 5.2. Holding of Security Deposit.
Landlord shall not be obligated to keep all or any portion of the
Security Deposit as a separate fund, but may mix the Security deposit with
Landlord's own funds.
Section 5.3. Landlord Assignment of Security Deposit.
In the event of a sale or transfer of the Complex, or any part
thereof, of which the Premises forms a part, Landlord shall transfer the
Security Deposit to the vendee or transferees and Landlord shall thereupon be
fully released by Tenant from all liability for the return of said Security
Deposit and Tenant agrees to look solely to the vendee or transferee for the
return of the Security Deposit.
Section 5.4. Tenant Assignment of Security Deposit.
Tenant covenants and agrees it will not assign or encumber the
Security Deposit and that neither Landlord, nor its successors or assigns shall
be bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance made by Tenant of the Security Deposit, unless such assignment is
pursuant to Section 9.1. hereof.
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Section 5.5. Refund.
In the event Tenant shall fully; and faithfully comply with all of the
terms, covenants, provisions, agreements and conditions of this Lease, the
Security Deposit shall be returned to the Tenant, without interest, after
inspection of the Premises by the Landlord, immediately following the end of
the term of this Lease.
ARTICLE 6.0. USE
Section 6.1. Use of Premises.
It is understood and agreed between the parties hereto that during the
term of this Lease and all extensions thereof the Premises shall be used and
occupied only for the use described in Section 1.8 hereof and for no other
purpose of purposes without the prior written consent of Landlord, such consent
not to be unreasonably withheld, conditioned or delayed. Tenant shall promptly
comply with all laws, ordinances and lawful orders and regulations affecting
Tenant's use of the Premises, including, but not limited to Landlord's
reasonable rules and regulations for the Complex.
Section 6.2. Delivery and Refuse.
All receiving, delivery and removal of goods, supplies, equipment,
garbage and refuse shall be made only by way of the areas provided therefore by
Landlord. Tenant and Tenant's employees, agents and invitees shall have the
right, during the term hereof, to use such areas, in common with other entitled
to use thereof, subject to such regulations as Landlord shall make from time to
time.
Section 6.3. Parking.
Landlord agrees to supply Tenant with sufficient parking in accordance
with all laws, ordinances and regulations. Tenant agrees to use their best
efforts to have long term parking concentrated in areas in the southerly
location of the Complex.
Section 6.4. Right of Entry by Landlord.
Landlord shall have the right to enter upon the Premises or any part
thereof with the least possible inconvenience to Tenant or its customers
without charge to Landlord at all reasonable times and upon reasonable notice,
and in case of emergency at any time, to inspect the Premises, show the
Premises to prospective purchasers, during the last sixty (60) days of the
Lease term show the Premises to prospective tenants, to make or facilitate any
repairs, alterations, additions or improvements to the Premises or any other
part of the Complex.
Section 6.5. Rules and Regulations.
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Tenant agrees that Tenant, Tenant's employees, agents, customers and
guests will at all times fully abide by, keep and observe all reasonable rules
and regulations which Landlord may from time to time make or promulgate and
which are applicable to all lessees, or to Tenant and other similar tenants, of
the Complex concerning the management, safety, care and cleanliness of the
Complex and for the preservation of good order and convenience of other lessees
and occupants of the Complex, including, without limitation, the Rules and
Regulations attached hereto and made an integral part hereof.
Any violation by Tenant of any of the rules and regulations contained
in the Rules and Regulations attached to this Lease or other Sections of this
Lease, or as may hereafter be adopted by Landlord pursuant to this Lease, may
be restrained; but, whether or not so restrained, Tenant acknowledges and
agrees that Tenant shall be and remain liable for all damages, loss, costs and
expenses resulting from any violation by Tenant or its employees, agents,
customers or quests, or any combination thereof, of any of said rules and
regulations. Except as provided in Section 15.1 hereof, nothing in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce
said rules and regulations, or the terms, covenants and conditions of any other
lease against any other tenant or any other persons, and Landlord shall not be
liable to Tenant for violation of the same by any other tenant, its employees,
agents, customers, guests or by any other person.
Section 6.6. Rights Reserved to Landlord.
Landlord reserves the following rights, exercisable without notice and
without liability of Landlord for damage or injury to property, person or
business and without regard to the effect, and without effecting, any eviction
or disturbance of Tenant's use or possession and without giving rise to any
claim for setoff or abatement of rent or affecting any of Tenant's obligations
under this Lease:
(a) To change the name or street address of the
Complex.
(b) To install and maintain signs on the exterior
and interior of the Complex.
(c) To prescribe the location and style of the
suite number and identification sign or lettering for
the Premises occupied by the Tenant.
(d) To retain at all times, and to use in
appropriate instances as described in the Lease, pass
keys to the Premises.
(e) To grant to anyone the right to conduct any
business or render any service in the Complex whether
or not it is the same as or similar to the use
expressly permitted to Tenant hereunder (except as
regarding kidney dialysis.
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(f) To exhibit the Premises at reasonable hours
and upon reasonable notice and to return the Premises
to its condition as of the commencement of the term
of this Lease, at any time after Tenant abandons the
Premises.
(g) To have access for Landlord and other tenants
or occupants of the Complex to all mail drops
according to the rules of the United States Postal
Service.
(h) To enter the Premises at reasonable hours and
upon reasonable notice for reasonable purposes,
including inspection or service to be provided to
Tenant hereunder.
(i) To require all persons entering or leaving
the Complex, during such hours as Landlord may from
time to time reasonably determine, to identify
themselves to watchmen by registration or otherwise
and to establish their right to enter or leave in
accordance with the security and safety rules adopted
by Landlord. Landlord shall have the right to
establish and change from time to time a security
control and locking system with respect to entry to
and exit from the Complex. Landlord shall not be
liable in damages for any reasonable error with
respect to admission to or eviction or exclusion from
the Complex of any person. In case of fire,
invasion, insurrection, mob, riot, civil disorder,
public excitement or other commotion, or threat
thereof, Landlord reserves the right to limit or
prevent access to the Complex during the continuance
of the same, shut down elevator service, activate
elevator emergency controls, or otherwise take such
action or preventive measures deemed necessary by
Landlord for the safety of the tenants or other
occupants of the Complex or the protection of the
Complex and the property in the Complex. In addition
to agreeing specifically to the terms of this Lease,
Tenant also agrees to cooperate with any reasonable
safety or security program developed by Landlord.
(j) To control and prevent access to common areas
and other non-general public areas of the Complex.
(k) Provided that access to the Premises shall be
maintained and the business of Tenant shall not be
interfered with, to rearrange, relocate, enlarge,
reduce or change corridors, exits and entrances in or
to the Complex and the land and to decorate and to
make repairs, alterations, additions and
improvements, structural or otherwise, in or to the
Complex, the land or any part thereof, and any
adjacent building, land, street or alley, including
for the purpose of connection with or entrance into
or use of the Complex and the land in conjunction
with any adjoining or adjacent building or buildings,
15
now existing or hereafter constructed, and may for
such purposes erect scaffolding and other structures
reasonable required by the character of the work to
be performed and during such operations may enter
upon the Premises and take into and upon or through
any part of the Complex, including the Premises, all
materials that may be required to make such repairs,
alterations, improvements or additions, and in that
connection, Landlord may temporarily close public
entry ways, other public spaces, stairways or
corridors and interrupt or temporarily suspend any
services or facilities agreed to be furnished by
Landlord, all without the same constituting an
eviction of Tenant in whole or in interruption of the
business of Tenant, or otherwise, or relieving Tenant
from performance of Tenant's obligation under this
Lease provided that Landlord shall at all such
instances, use its best efforts to minimize
disruption to Tenant's business.
(l) To designate certain parking spaces and
parking areas on the land or on adjacent land for the
exclusive use of one or more tenants in the Complex
or any adjoining or adjacent building or buildings
now existing or hereafter constructed, to install
gates, traffic regulating devices, directional
signage, security systems, make and adopt such
reasonable rules and regulations in addition to, or
other than, or by way of amendment or modification of
the rules and regulations attached to this Lease
relating to use of parking spaces and parking areas,
including, but not limited to vehicle size, direction
of traffic and loading and unloading of vehicles.
(m) To designate and select agents, employees and
contractors to perform services in the Complex and on
the land, whether or not affiliated with Landlord, at
competitive rates.
(n) To install and designate areas for
installation of vending machines and collect all
revenue derived from the use thereof.
(o) To take any and all measures, including
inspection, repairs, alterations, additions and
improvements to the Premises or to the Complex, as
may be necessary or desirable for the safety,
protection or preservation of the Premises or the
Complex or the Landlord's interest, or as may be
necessary or desirable in the operation of the
Complex.
(p) To sell, lease, transfer, encumber or pledge
Landlord's interest in the Complex, Premises and/or
this Lease at any time without notice to Tenant,
without requiring Tenant's consent, subject to all of
Tenant's rights as set forth in this Lease. Nothing
in
16
this Section 6.6 (q) shall be deemed to supersede any
provision of Section 16.1 hereof.
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ARTICLE 7.0. MAINTENANCE, REPAIR, ALTERATION
Section 7.1. Landlord's Obligations.
Landlord shall, at its sole expense, keep and maintain the foundation
structure, and the four outer walls of the Premises in good repair, except that
Landlord shall not be called on to make any repairs necessary which arise from
the act or negligence of Tenant, its agents, employees, invitees, customers or
guests, (except to the extent that Landlord is reimbursed therefor under any
policy of insurance permitting waiver of subrogation in advance of loss).
Landlord shall maintain all landscaping, sidewalks, parking areas and other
common areas in good condition as well as supply all snow removal and common
area janitorial services, the expenses of which shall be included as Complex
Costs. However, Landlord may, in its sole discretion, provide additional
services on such terms and conditions as may be then agreed upon between
Landlord and Tenant. All charges for such additional services shall be due and
payable within fifteen (15) days of the billing therefor. In the event Tenant
shall fail to pay the full amount of such billing when due, the unpaid balance
shall be considered Rent currently due in full, in addition to the next
installment Rent. Failure by Tenant to pay any portion of Rent may be deemed a
Tenant default under this Lease.
Section 7.2. Utilities.
Landlord shall, at its sole cost and expense, provide and maintain the
necessary mains and conduits in order that water and sewer facilities, gas and
electricity may be available to the Premises and the Complex. If Tenant shall
use water, gas and/or electricity for any purpose in the Premises and Landlord
shall elect to supply the water gas and/or electricity, Tenant shall accept and
use the same as tendered by Landlord and pay therefor at the applicable rates
filed with the proper regulating authority and in effect from time to time
covering such services. In the event Tenant separately contracts for the
provision of any utilities to the Premises, Tenant hereby agrees to promptly
pay for its use.
Section 7.3. Exterior Lighting.
Landlord shall provide facilities for the lighting of the parking area
located adjacent to the Premises during appropriate hours of darkness.
Section 7.4. Tenant's Obligations.
The interior of the Premises and all facilities and equipment within
and serving the Premises shall at all times be kept in good order, condition
and repair by Tenant, and shall also be kept in a clean, sanitary and safe
condition in accordance with the laws of the State of Michigan and all
reasonable directions, rules and regulations of Landlord and the health
officer, fire Xxxxxxxx, building inspector or other proper officers of the
governmental agencies having jurisdiction, at the sole cost and expense of
Tenant, unless the same arise from any act or negligence of Landlord, its
agents, employees, invites or
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guests. Tenant shall comply with all requirements of law, ordinance and
otherwise regarding Tenant's use and occupancy of the Premises, providing,
however, that Tenant shall not be so required to make any structural or other
substantial change to the Premises. Tenant shall cause no waste, damage or
injury to the Premises. Tenant shall at its own cost and expense replace any
glass windows and doors in the Premises which may be broken or cracked, unless
the same arise out of any act or negligence of Landlord, its agents, employees,
invitees or guests. Tenant shall at its own cost and expense maintain in good
operating condition all heating and air conditioning equipment located within
and serving the Premises as required by the manufacturers of such equipment or
as reasonable required by Landlord, provide janitorial services for the
Premises and wash the interior and exterior windows of the Premises. Tenant
hereby waives all rights to make any repairs or incur any maintenance costs at
Landlord's expense. At the expiration of this Lease, Tenant shall surrender
the Premises in good condition, reasonable wear and tear and loss by fire or
other unavoidable casualty excepted. Nothing within this Section shall create
an obligation on the part of Tenant to comply with any of the laws, directions,
repairs, modifications, alterations or rules and regulations referred to which
may require structural additions, unless such compliance is required due to any
act or work performed by Tenant, in which event Tenant shall comply at its sole
expense.
Section 7.5. Plumbing.
The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and expense of any breakage, stoppage, or damage resulting
from a violation of this provision by Tenant shall be borne by Tenant.
Section 7.6. Signs.
Tenant shall not erect or install any exterior signs, interior window
or door signs, window or door lettering without the prior written consent of
Landlord, such consent not to be unreasonably withheld, conditioned or delayed.
Tenant shall pay any and all cost and expense relating to the installation and
removal of Tenant's signs.
Section 7.7. Alterations.
Tenant, its employees or agents shall not alter or deface any walls,
ceilings, partitions, floors, wood, stone, or iron work without the Landlord's
prior written consent, such consent not to be unreasonably withheld,
conditioned or delayed. All alterations, additions or improvements, which may
be made or installed by either of the parties hereto upon the Premises and
which in any manner are attached to the floors, walls or ceilings shall remain
upon and be surrendered with the Premises as a part thereof, without
disturbance, molestation or injury. Any linoleum or other floor covering of
similar character which may be cemented or otherwise adhesively affixed to the
floor of the Premises shall be and become the property of the Landlord
absolutely.
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ARTICLE 8.0. INSURANCE AND INDEMNITY
Section 8.l. Indemnity.
Tenant agrees to indemnify and hold Landlord harmless against all
claims, demands, costs and expenses, including reasonable attorney's fees for
the defense thereof, arising from Tenant's conduct, occupancy or management of
Tenant's business, its use of the Premises, from construction of improvements
by Tenant, from any breech on the part of the Tenant of any conditions of this
Lease, or from any negligence of Premises. Notwithstanding anything to the
contrary contained herein, the foregoing provision shall not be construed to
make Tenant responsible for loss, damage, liability or expense resulting from
injuries caused by any negligence or intentional misconduct of Landlord, its
agents, servants, contractors or employees. In case of any action or
proceeding brought against Landlord by reason or such claims as is described in
the initial sentence of this Paragraph 10. Tenant, upon notice from Landlord,
covenants to defend such action or proceeding by counsel reasonably acceptable
to Landlord.
Section 8.2. Landlord's Insurance.
Landlord covenants and agrees that throughout the term of this Lease
it will insure the Complex (including the building of which the Premises are a
part) and the building improvements (excluding any property with respect to
which tenants are obligated to insure) against damage by fire including
extended coverage, vandalism and malicious mischief and comprehensive general
liability insurance in such amounts as would be carried by a prudent owner of a
similar building in the geographic area.
Section 8.3. Tenant Insurance.
(a) Tenant shall not do anything in or about the Premises
which will in any way tend to increase the insurance rates on
the Premises and/or Complex.
(b) Tenant shall carry, naming Tenant as insured and
Landlord as additional insured, fire insurance with extended
coverage in an amount equal to the full replacement value of
the insurable improvements to the Premises based upon the fire
rating required by the insurance underwriters for the Complex.
(c) For the term of this Lease, Tenant shall pay as
additional rent any increase in premium of Landlord for
insurance against loss by fire or other casualty resulting
from the business carried on in the Premises by Tenant,
whether or not Landlord has consented to the same. If Tenant
installs any electrical equipment that overloads the lines in
the Premises, Tenant shall at its own expense make whatever
changes are necessary to comply with the requirements of the
insurance underwriters and governmental authorities having
jurisdiction.
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Section 8.4. Tenant Public Liability Insurance.
Tenant shall, during the entire term hereof, keep in full force and
effect a policy of public liability insurance with respect to the Premises and
the business operated by Tenant, Tenant shall be named as insured and Landlord
as additional insured parties covered thereby, and in which the limits of
liability shall be not less than One Million Dollars ($1,000,000.00) for each
accident or occurrence for bodily injury and One Million Dollars
($1,000,000.00) for property damage. Tenant shall furnish Landlord with a
certificate or certificates evidencing such insurance, that such insurance is
in force at all times during the term of this Lease.
Section 8.5. Glass Insurance.
The Tenant shall be responsible for all damage to glass on the
Premises with regard to breakage and the replacement of same, unless due to the
negligence or intentional misconduct of Landlord, its agents, servants,
contractors or employees. Tenant shall maintain such insurance as may be
necessary, and will assume full responsibility, for all such glass during the
term of this Lease.
Section 8.6. Insurance Policies.
Insurance policies required of Tenant pursuant to this Article shall
name Landlord as additional insured and shall be with insurance companies
licensed to do business within the State of Michigan. Said certificates of
insurance shall be delivered to Landlord, and such insurance carrier shall
endeavor to provide at least thirty (30) days notice to Landlord prior to any
cancellation or amendment thereof. If Tenant fails to keep the required
insurance in full force and effect, Landlord may, at its option, obtain such
insurance and pay the cost thereof with all such costs deemed Rent currently
due in full, in addition to the next installment of Rent; the failure of Tenant
to pay any portion of Rent may be deemed a default by Tenant under this Lease.
Section 8.7. Waiver of Subrogation.
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss insured by fire, extended coverage and
other property insurance policies existing for the benefit of the respective
parties. Each party shall obtain any special endorsements, if required by
their insurer to evidence compliance with the aforementioned waiver.
ARTICLE 9.0. ASSIGNMENT
Section 9.1. Tenant Assignment.
Tenant shall not assign or sublet the whole or any part of the
Premises without prior written consent of the Landlord, such consent not to be
unreasonably withheld, conditioned or delayed. In the event of any such
assignment, Tenant shall deliver to
21
Landlord within a reasonable time thereafter, a written agreement from the
assignee agreeing with Landlord to perform the term, covenants, and conditions
of Tenant contained in this Lease.
Notwithstanding anything contained anything contained herein to the
contrary, Tenant may assign this Lease, or sublease the Premises, in whole or
in part, without the consent of Landlord, to:
(a) any corporation into which or with which Tenant has merged or
consolidated;
(b) any parent, subsidiary, successor, or wholly-owned
affiliate corporation of Tenant;
(c) any corporation which acquires all or substantially
all of the assets or issued and outstanding shares of capital
stock of Tenant;
(d) any partnership, the majority interest of which shall
be owned by Tenant or a parent, subsidiary, successor or
wholly-owned affiliate corporation of Tenant; or
(e) any purchaser with assets equal to or greater than
Tenant provided that any such assignee or successor shall
agree in writing to assume and perform all of the terms and
conditions of this Lease on Tenant's part to be performed from
and after the effective date of such assignment or subletting.
Section 9.2. Landlord Assignment.
In the event of any sale, lease or transfer of Lessor's interest, by
agreement or by the operation of law, in the Premises, Complex or any portion
thereof, or other interest therein or thereunder, then, in any such event,
Landlord shall be free and relieved of all future liability (I) under any and
all of its covenants and obligations contained in or arising from or under this
Lease, and (ii) arising out of any act, occurrence or omission occurring after
the consummation of said sale, lease or transfer.
ARTICLE 10.0. EMINENT DOMAIN
Section 10.1. Total Condemnation.
If the whole of the Premises shall be taken by any public authority
under the power of eminent domain then the term of this Lease shall cease as of
the day possession shall be taken by such public authority and the Rent shall
be paid up to that day with a proportionate refund by Landlord of any Rent
which had been paid in advance.
Section 10.2. Partial Condemnation.
22
If less than the whole, but more than twenty percent (20%) of the
Premises are taken under the power of eminent domain, Landlord and Tenant shall
each have the right to terminate this Lease upon ten (10) days prior written
notice to the other and in such event such termination shall be effective upon
the day possession of the Premises shall be required for public use. Such
notice shall be given within thirty (30) days after such taking for public use.
In the event (I) neither party hereto shall elect to terminate this Lease, or
(ii) less than twenty percent (20%) of the Premises are so taken, Landlord
shall, at its own cost and expense, make all necessary repairs and alterations
to the Complex necessary to constitute the remaining Premises a complete
architectural unit. In the event Tenant elects, pursuant to the terms of this
Section 10.2, to remain in possession of the Premises, all the terms herein
provided shall continue in effect, except that the Rent shall be reduced in
proportion to the amount of the square footage of the Premises taken.
Section 10.3. Damages From Condemnation.
All damages awarded for a taking under the power of eminent domain,
whether for the whole or part of the Premises, shall belong to and be the sole
property of Landlord, whether such damages shall be awarded as compensation for
diminution in value to the leasehold or to the fee of the Premises or Complex;
provided, however, that Landlord shall not be entitled to any award made
directly to Tenant for loss of business, depreciation to, and cost of removal
of stock and fixtures.
ARTICLE 11.0. DESTRUCTION OR DAMAGE TO PREMISES.
Section 11.1. Casualty Loss.
In the event that the Premises are damaged by fire or other casualty,
Landlord shall forthwith proceed to repair and restore the Premises to the end
that space of the same size and utility are available as expeditiously as
possible. Tenant's rent shall be abated in just proportion during the period
of impaired use of the Premises. If more than fifty (50%) percent of the
inside space of the Building or the Premises is so damaged, either Landlord or
Tenant may cancel this Lease on thirty (30) days' notice and rent shall be
apportioned as of the date of the casualty. If a registered engineer or
architect jointly acceptable to Landlord and Tenant shall notify them within
thirty (30) days after such fire or casualty that, in his opinion, the damage
to the Premises cannot be repaired so as to substantially restore the Premises
to their former condition within one hundred eighty (180) days after such fire
or casualty, or if the Premises are in fact not restored to substantially the
same condition as prior to such fire or casualty within one hundred eighty
(180) days after such occurrence, then this Lease may be terminated by either
Landlord or Tenant, and rent shall be apportioned as of the termination date.
The rights of cancellation and termination afforded to the parties by this
Paragraph 14 shall not be affected or extended by reason of the happening of
any event described in Paragraph 21.
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ARTICLE 12.0. TENANT BANKRUPTCY
Section 12.1. Tenant's Interest Not Transferable.
Neither this Lease, nor any interest herein nor any estate hereby
created, shall pass to any trustee or receiver or assignee for the benefit of
creditors or otherwise due to Tenant's bankruptcy.
Section 12.2. Landlord's Option To Terminate.
In the event the estate created hereby shall be taken in execution or
by other process of law, or if Tenant shall be adjudicated insolvent or
petition for relief under any bankruptcy act, or if a receiver or trustee of
the property of Tenant shall be appointed by reason of Tenant's insolvency or
inability pay its debts, or if any assignment shall be made of Tenant's
property for the benefit of creditors, then and in any such events, Landlord
may at its option by notice to Tenant terminate this Lease and all rights of
Tenant hereunder as of the date of such event.
ARTICLE 13.0. TENANT DEFAULT
Section 13.1. Right to Re-Enter.
If Tenant defaults in the payment of any Rent due or other charge
payable by Tenant and Tenant does not cure the default within seven (7) days
after receipt of written notice thereof shall have been given to Tenant, or if
Tenant defaults in the prompt and full performance of any other term, condition
or covenant of this Lease to be observed or performed by Tenant, and Tenant
does not cure the default within thirty (30) days or such additional time as is
reasonably required to cured such default after receipt of written notice
thereof by Tenant; or if the leasehold interest of Tenant be levied upon under
execution or be attached by the process of law; or if Tenant makes an
assignment for the benefit of creditors or admits its inability to pay its
debts; or if Tenant abandons the Premises before the end of the term hereof;
then Tenant shall be in breach of this Lease and Landlord may elect to either
terminate this Lease, or, without terminating this Lease, terminate Tenant's
right to possession of the Premises. Besides any and other rights and remedies
Landlord may have by law or otherwise, it shall have the immediate right of
re-entry and may remove all persons and property from the Premises and
Landlord's entry upon and taking possession of the Premises shall not in any
way terminate this Lease or release the Tenant in whole or in part from
Tenant's obligation to pay the Rent or other charges payable hereunder for the
full lease term or discharge Tenant from any loss or damage sustained by
Landlord on account of Tenant's breach of the Lease, unless Landlord elects to
terminate the Lease.
Section 13.2. Right to Re-Let.
Should Landlord elect to re-enter as provided in Section 13.1 hereof,
or should Landlord take possession pursuant to legal proceedings or pursuant to
any notice provided
24
for by law, Landlord may either terminate this Lease or Landlord may from time
to time without terminating this Lease make such alterations and repairs as may
be necessary in order to return the Premises to its condition as of the
commencement of the term of this Lease, and Landlord shall then have the right
to re-let the Premises or any part thereof for such term or terms (which may be
for a term extending beyond the term of this Lease) and at such rental or
rentals and upon such other terms and conditions as Landlord in its sole and
absolute discretion may deem advisable. Upon each such re-letting, rental
income, if any, shall be applied: first to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment
of any costs and expenses of such re-letting, including brokerage fees and
reasonable attorney's fees and costs of such restoration as provided above,
third to the payment of Rent due and unpaid hereunder, and the residue, if any,
shall be held by Landlord and applied in payment of future Rent as the same may
become due and payable hereunder. If such rentals received from such
re-letting during any month be less than the Rent to be paid by Tenant during
the month, Tenant shall pay any such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly in advance on or before the first day of
such month. No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election on Landlord's part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any re-letting without termination, Landlord may at
any time thereafter elect to terminate this Lease for any previous breach of
any term or provision of this Lease. Should Landlord at any time terminate
this Lease for any breach, in addition to any other remedies it may have, it
may recover from Tenant all damages it may incur by reason of such breach,
including the cost of recovering possession of the Premises, and reasonable
attorneys' fees incidental thereto.
Section 13.3. Legal Expenses.
If suit shall be brought for Landlord's recovery of possession of the
Premises, for Landlord's recover of Rent or any other amount due Landlord or
Tenant under any provision (s) of this Lease, or because of the breach of any
other covenant herein contained on the part of Landlord or Tenant to be kept or
performed, the defaulting party shall pay to the non-defaulting party all
expenses incurred therefor, including all reasonable attorneys' fees and court
costs.
Section 13.4. Receipt of Money After Termination of Lease.
No receipt of money by the Landlord from the Tenant after the
termination of this Lease shall reinstate, continue or extend the term, nor
waive or affect any notice given by the Landlord to the Tenant prior to such
receipt of money.
Section 13.5. Self-Help.
25
If Tenant shall default in the performance or observance of any
agreement or condition in this Lease contained on its part to be performed or
observed, other than an obligation to pay money, and shall not cure such
default as provided herein, Landlord may, at its option, without waiving any
claim for damages for breach of this Lease, at any time thereafter, cure such
default for the account of Tenant and any amount paid or any liability incurred
by Landlord in so doing shall be deemed paid or incurred for the account of
Tenant, and Tenant agrees to reimburse Landlord thereafter and save Landlord
harmless therefrom.
If Landlord shall default in the performance or observance of any
agreement or condition in this Lease contained on its part to be performed or
observed and shall not cure such default as provided herein, Tenant may, at its
option, without waiving any claim of damages for breach of lease, at any time
thereafter, cure such default for the account of Landlord and any amount paid
or any liability incurred by Tenant in so doing shall be3 deemed paid or
incurred for the account of Landlord and Landlord agrees to reimburse Tenant
thereafter and save Tenant harmless therefrom. Tenant may, at its option,
offset the amount owed it by Landlord by deducting such amount from future
rental payments.
ARTICLE 14.0. TENANT'S PROPERTY
Section 14.1. Taxes on Leasehold.
Tenant shall be responsible for and shall pay before delinquency all
municipal, county or state taxes assessed during the term of this Lease against
any leasehold interest or personal property of any kind, owned by or placed in,
upon or about the Premises by Tenant.
Section 14.2. Notice By Tenant.
Tenant shall give immediate notice to Landlord in case of fire or
accidents in the Premises or in the Complex, or of defects herein or any
defects in any fixtures or equipment of which Tenant is or shall have been
aware.
ARTICLE 15.0. QUIET ENJOYMENT
Section 15.1. Landlord's Covenant.
Upon timely payment by Tenant of all Rents as herein provided, and
upon the observance and performance of all covenants, terms, and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Premises for the term hereof without hindrance or
interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under Landlord, subject, nevertheless, to the terms and
conditions of this Lease.
Section 15.2. Tenant's Covenant.
26
Tenant shall not commit in or about the Premises or the Complex any
public or private nuisance or other act or thing which may disturb the quiet
enjoyment of any other lessee, or customer, agent or employee of any other
tenant of the Complex. Without limiting the generality of the foregoing,
Tenant shall not allow the Premises to be used (a) for any purposed which, in
Landlord's reasonable opinion, is improper, immoral, unlawful, unethical or
objectionable, (b) for unlawfully selling harmful drugs or intoxicating liquor,
or (c) for keeping, preparing, manufacturing or mixing anything which emits
and odor outside of the Premises. Tenant shall not use any apparatus,
machinery or device in or about the Premises which makes or sets-up any noise,
vibration or other disturbance which adversely affects any other tenant in the
Complex. Tenant shall at its sole cost and expense, comply with all health,
safety, use and occupancy requirements of all municipal, state and federal
authorities now or from time to time during the term hereof in force pertaining
to Tenant's use and occupancy of the Premises.
ARTICLE 16.0. LEASE SUBORDINATE
Section 16.1. Subordination.
(a) This Lease shall be subordinate to any
mortgage or deeds of trust that may now be upon or
hereafter be placed upon the Premises or the Complex by
Landlord or its assigns or transferees, and to any and all
advances to be made thereunder, and to the interest
thereon, and all renewals, replacements and extensions
thereof, provided the mortgagee or trustee, named in said
mortgages or trust deeds shall agree to recognize the
Lease of Tenant, the Tenant's rights thereunder and shall
not disturb Tenant's possession of the Premises.
(b) Tenant also agrees that any mortgagees or
trustees may elect to have this Lease a prior lien to its
mortgage or deed of trust, and in the event of such
election and upon notification by such mortgagee or
trustee to Tenant to that effect, this Lease shall be
deemed prior in lien to the said mortgage or deed of
trust, whether this Lease is dated prior to or subsequent
to the date of said mortgage or deed of trust. Tenant
agrees that upon thirty (30) days prior written request of
Landlord or any mortgagee or any trustee, Tenant shall
execute reasonable instruments which may be required to
carry out the intent of this Section 16.1.
Section 16.2. Attornment.
Tenant shall, in the event any proceedings are brought for the
foreclosure of or in the event of exercise of the power of sale under any
mortgage or deed of trust made by Landlord covering the Premises, attorn to the
purchaser upon any such foreclosure or sale
27
and recognize such purchaser as the Landlord under this Lease, and any such
purchaser shall recognize Tenant as the tenant under this Lease.
28
Section 16.3. Tenant Off-Set Statement.
Tenant agrees, within thirty (30) days of a written request therefor
by Landlord, to execute in recordable form and deliver to Landlord a statement,
in writing, certifying (I) that this Lease is in full force effect, (ii) the
date of commencement of the term of this Lease is as set forth in Section
1.10.1, (iii) that all Rent is paid currently without any off-set or defense
thereto, (iv) the amount of Rent, if any, paid in advance, and (v) that there
are no incurred defaults by Landlord or stating those claimed by Tenant.
ARTICLE 17.0. MISCELLANEOUS
Section 17.1. Successors.
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the respective heirs,
executors, administrators, successors and assigns of the said parties. If
there shall be more than one tenant, they shall all be bound jointly and
severally by the terms, covenants, and agreements herein. No rights, however,
shall inure to the benefit of any assignee of any Tenant unless the assignment
to such assignee has been previously approved by Landlord in writing as
provided in Section 9.1
Section 17.2. Waiver.
One or more waivers of any covenant or condition by Landlord shall not
be construed as a waiver of any subsequent breach of the same or other covenant
or condition and the consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent or approval to or of any subsequent
similar act by Tenant. No breach of a covenant, term or condition or provision
of this Lease shall be deemed to have been waived by Landlord unless such
waiver (I) is in writing signed by the Landlord, (ii) identifies the breach,
and (iii) expressly states that it is a waiver of the identified breach.
Section 17.3. Notice.
Whenever under this Lease a provision is made for notice of any kind,
it shall be deemed sufficient notice and service thereof if such notice to
Tenant is in writing, addressed to Tenant at the Premises, and copy to: X.
Xxxxx, Senior V.P. of Finance, Sensys Technologies, X.X. Xxx 0000, Xxxxxxxxx,
XX 00000, and sent by registered or certified mail with postage prepaid, return
receipt requested; and if such notice to Landlord is in writing, addressed as
noted in Section 1.5 of this Lease or to the last known post office address of
which Tenant has received written notice. Prepaid and return receipt
requested.
Section 17.4. Relationship.
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Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it
being understood and agreed that neither the herein, shall be deemed to create
any relationship between the parties hereto the singular number is used, the
same shall include the plural, and the masculine gender shall include the
feminine and neuter genders where appropriate.
Section 17.5. Consent Not Unreasonably Withheld.
Landlord shall not unreasonably withhold its written consent or
approval when Tenant is requires to obtain such consent or approval by the
terms of this Lease.
Section 17.6. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than
the full Rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent or other payment
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's rights to recover the balance of Rent
or pursue any other remedy in this Lease.
Section 17.7. Headings.
The headings, captions, article and section numbers, and index
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope of intent of such articles or
sections of this Lease nor in any way affect this Lease.
Section 17.8. Partial Invalidity.
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant extent permitted by law.
Section 17.9. Reservation.
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises, and this Lease becomes effective
only upon execution and delivery thereof by Landlord and Tenant.
Section 17.10. Liens.
In the event a mechanic's lien shall be filed against the Premises or
Tenant's interest therein as the result of the work undertaken by Tenant to
ready the Premises for
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Tenant's occupancy or any time subsequently thereto or as a result of any
repairs or alterations made by Tenant or at Tenant's request except as to
repairs made by Landlord on Tenant's behalf, Tenant shall, within thirty (30)
days after receiving notice of such lien, discharge such lien either by payment
of the indebtedness due the mechanic's lien claimant or by filing a bond with
Landlord reasonably satisfactory to Landlord as security therefor. In the
event Tenant shall fail to discharge such lien, Landlord shall have the right
to procure such discharge by filing such bond and Tenant shall pay the cost of
such bond to Landlord as additional rent upon the first day that Rent shall be
due thereafter.
Section 17.11. Liability of Landlord.
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 judgement against Landlord, such
judgement shall be satisfied only out of the proceeds of sale received upon
execution of such judgement and levied thereon against the right, title and
interest of Landlord in the Complex and out of rents or other income from such
property receivable by Landlord, or out of the consideration of Landlord's
right, title and interest in the Complex and the partners comprising the
partnership which is Landlord shall not be personally liable for any
deficiency.
Section 17.12. Force Majeure.
In the event that either party hereto shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason of
restrictive governmental laws or regulations, riots, insurrection, war or other
reason of like nature not the fault of the party delayed in performing work or
doing acts required under the terms of this Lease, then performance of such act
shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the period of such
delay. The provisions of this Section 17.14 shall not operate to excuse tenant
from prompt payment of rent, or any other payments required by the terms of
this Lease.
Section 17.13. Entire Agreement.
This Lease, all Exhibits and Riders, if any, attached hereto and
forming a part hereof, set forth all the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the
Premises and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than those herein
set forth. No alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by each
party.
Section 17.14. Estoppel.
The parties agree that they shall rely solely upon the terms of this
Lease to govern their relationship. They further agree upon the terms of this
Lease to govern their relationship. They further agree that reliance upon any
representation, act or omission
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outside the terms of this Lease shall be deemed unreasonable, and shall not
establish any rights or obligations on the part of either party.
Section 17.18. Attorney Approval.
ALL PARTIES ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED TO SEEK THE ADVICE
OF AN ATTORNEY.
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RIDER A
The terms and provisions of this rider shall supersede any contrary or
inconsistent provisions of the Lease.
Section RA.1. Terms.
The term of the Lease as described in Section 1.10.1 of the Lease
shall commence upon December 1, 1998.
Section RA.2. Option to Renew.
Subject to all terms and provisions of the Lease, if Tenant is not in
default past any applicable cure period of any term or provision of the Lease
as of the date specified in Section 1.10.2., upon notice to Landlord at least
ninety (90) days prior to the date specified in Section 1.10.2 hereof, Tenant
shall have the right to extend the term of this Lease until November 30, 2008
(the Option Term.) Based on the following rent:
Months 1-12 $9,656 p.m.
Months 13-24 $9,946 p.m.
Months 24-36 $10,245 p.m.
Months 37-48 $10,552 p.m.
Months 49-60 $10,868 p.m.
For a Total Base Rental ate during the Option Term of $615,204.00, plus Taxes,
Insurance and C.A.M. charges.
Section RA.3. Utilities Agreement.
Tenant agrees to pay 100% of the utilities until such time as the
remaining 50% of the building is leased. Tenant will be responsible for 50% of
the utilities at that time. If it is deemed the new tenant has excessive
utility, usage the proration of utilities will be reallocated to provide for
said excessive use.
