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EXHIBIT 10.15
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LEASE
BETWEEN
485 PROPERTIES, LLC,
AS LANDLORD
AND
ADVANCED SYSTEMS
INTERNATIONAL, INC.,
AS TENANT
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TABLE OF CONTENTS
SECTION 1. BASIC LEASE PROVISIONS....................................1
SECTION 2. THE PREMISES..............................................2
SECTION 3. THE TERM..................................................3
SECTION 4. THE BASE RENT.............................................3
SECTION 5. LATE CHARGES AND INTEREST.................................3
SECTION 6. OPERATING EXPENSES, UTILITIES, AND TAXES..................3
SECTION 7. USE OF PREMISES...........................................5
SECTION 8. INSURANCE.................................................7
SECTION 9. DAMAGE BY FIRE OR OTHER CASUALTY..........................8
SECTION 10. REPAIRS, RENOVATIONS AND ALTERATIONS.....................10
SECTION 11. LIENS....................................................11
SECTION 12. EMINENT DOMAIN...........................................11
SECTION 13. ASSIGNMENT OR SUBLETTING.................................12
SECTION 14. INSPECTION OF PREMISES...................................12
SECTION 15. FIXTURES AND EQUIPMENT...................................13
SECTION 16. PARKING AREAS............................................13
SECTION 17. NOTICE OR DEMANDS........................................13
SECTION 18. BREACH; INSOLVENCY; RE-ENTRY.............................13
SECTION 19. SURRENDER OF PREMISES ON TERMINATION.....................15
SECTION 20. PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT.......15
SECTION 21. SUBORDINATION; ESTOPPEL CERTIFICATES.....................15
SECTION 22. QUIET ENJOYMENT..........................................16
SECTION 23. HOLDING OVER.............................................16
SECTION 24. REMEDIES NOT EXCLUSIVE; WAIVER...........................16
SECTION 25. WAIVER OF SUBROGATION....................................16
SECTION 26. RIGHT TO SHOW PREMISES...................................17
SECTION 27. INDEMNIFICATION..........................................17
SECTION 28. DEFINITION OF LANDLORD; LANDLORD'S LIABILITY;............17
SECTION 29. SECURITY DEPOSIT AND SECURITY INTEREST...................18
SECTION 30. RULES AND REGULATIONS....................................18
SECTION 31. SIGNS AND ADVERTISING....................................18
SECTION 32. GENERAL..................................................19
EXHIBIT A SPACE PLAN...............................................21
EXHIBIT B RULES AND REGULATIONS OF THE PROJECT.....................22
EXHIBIT C DAILY JANITORIAL SERVICE.................................25
EXHIBIT D SPECIAL PROVISIONS.......................................26
Dl EXCESS TENANT IMPROVEMENT COSTS.................................26
D2 ADA COMPLIANCE REPRESENTATION...................................26
D3 NON-DISTURBANCE................................................ 26
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LEASE
THIS LEASE is made and entered into as of May 29, 1998, by and between
485 PROPERTIES, LLC, a Delaware Limited Liability Company (the "Landlord"),
having its principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
Tenant named below who agree as follows:
SECTION 1.
BASIC LEASE PROVISIONS
1.01 The following basic lease provisions are an integral part of this
Lease and are referred to in other Sections of this Lease.
(a) Tenant's name and jurisdiction of formation:
ADVANCED SYSTEMS INTERNATIONAL, INC., a Nevada Corporation
Tenant Social Security/Taxpayer Identification Number: 00-0000000
Tenant Standard Industrial Classification (SIC) Code Number: 7372
(b) Tenant's Address: 00000 X. Xxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
(c) Manager's Name REDICO Management, Inc.
and Address: 00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
(d) Project Name: Raleigh Officentre Phase I and II
Building Name: Raleigh Officentre
Building Address: 00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(e) Premises: Floor: fourth
Suite Number: 455
Square Feet: 8,472 usable / 9,488 rentable
square feet
(f) Term:
Scheduled Occupancy Date: November 1, 1998
Scheduled Expiration Date of Initial Term; October 31, 2003
Initial Term: Five (5) years
(g) Base Rent:
Monthly Annual
------- ------
Year 1 $13,639.00 $163,668.00
Year 2 $13,836.67 $166,040.04
Year 3 $14,034.33 $168,411.96
Year 4 $14,232.00 $170,784.00
Year 5 $14,429.67 $173,156.04
Total Aggregate: $842,060.04
(h) Tenant's Proportionate Share:
9,488 Rentable square feet in the Premises divided by
289,019 Rentable square feet in the Building = 3.28 %
(i) Number of Exclusive Parking Spaces: NONE - at an initial increase
of additional rent of $0
(j) Security Deposit: $28,068.66
(k) Tenant Improvement Allowance: See Exhibit D
(1) Base Year:1998
(m) Permitted Use: General Office
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SECTION 2.
THE PREMISES
2.01 Landlord, in consideration of the rents to be paid and the covenants
and agreements to be performed by Tenant, hereby leases to Tenant the premises
set forth in Section 1.01(e) (the "Premises") in the building(s) (the
"Building") described in Section 1.01(d), together with the right to use the
parking and common areas and facilities which may be furnished from time to time
by Landlord (collectively the "Common Areas"), including, without limitation,
all common elevators, hallways and stairwells located within the Building, and
all common parking facilities, driveways and sidewalks, in common with Landlord
and with the tenants and occupants of the Project, their agents, employees,
customers, clients and invitees. Tenant agrees that the Premises and the
Building shall be deemed to include the number of rentable square feet set forth
in Section 1.01(h) and in no event shall Tenant have the right to challenge,
demand, request or receive any change in the base rent or other sums due
hereunder as a result of any claimed or actual error or omission in the rentable
or usable square footage of the Premises, the Building or the Project. Landlord
reserves the right at any time and from time to time to make alterations or
additions to the Building or the Common Areas, and to demolish improvements on
and to build additional improvements on the land surrounding the Building and to
add or change the name of the Building from time to time, in its sole discretion
without the consent of Tenant and the same shall not be construed as a breach of
this Lease. The Building, the other buildings listed in Section 1.01 (d), the
Common Areas and the land surrounding the Building and the Common Areas are
hereinafter collectively referred to as the "Project".
2.02 Landlord agrees to construct the improvements to the Premises (the
"Tenant Improvements") in accordance with the space plan(s) (as it may be
amended by approved change orders, the "Plans"), attached as Exhibit "A". All
material changes from the Plans which Landlord determines are necessary during
construction shall be submitted to Tenant for Tenant's approval or rejection. If
Tenant fails to notify Landlord of Tenant's approval or rejection of such
changes within five (5) days of receipt thereof, Tenant shall be conclusively
deemed to have approved such changes. Landlord's approval of the Plans shall not
constitute a representation, warranty or agreement (and Landlord shall have no
responsibility or liability for) the completeness or design sufficiency of the
Plans or the Tenant Improvements, or the compliance of the Plans or Tenant
Improvements with any laws, rules or regulations of any governmental or other
authority.
2.03 The provisions of Exhibit D, special provisions, shall govern the
cost of constructing Tenant Improvements.
2.04 Landlord intends to construct the Tenant Improvements and deliver
the Premises "ready for occupancy" (as defined below) to Tenant on the Scheduled
Occupancy Date set forth in Paragraph 1.01(f). The Premises will be conclusively
deemed "ready for occupancy" on the earlier to occur of when: (i) the work to be
done under this Paragraph has been substantially completed and after the
issuance of a conditional or temporary certificate of occupancy for the Premises
by the appropriate government agency within whose jurisdiction the Building is
located, or (ii) when Tenant takes possession of the Premises. The Premises will
not be considered unready or incomplete if only minor or insubstantial details
of construction, decoration or mechanical adjustments remain to be done within
the Premises or Common Areas of the Building, or if only landscaping or exterior
trim remains to be done outside the Premises, or if the delay in the
availability of the Premises for Tenant's occupancy is caused in whole or in
material part by Tenant. By occupying the Premises, Tenant will be deemed to
have accepted the Premises and to have acknowledged that they are in the
condition called for in this Lease, subject only to "punch list" items (as the
term "punch list" is customarily used in the construction industry in the area
where the Project is located) identified by Tenant by written notice delivered
to Landlord within ten (10) days after the date Landlord tenders possession of
the Premises to Tenant. If in good faith Landlord is delayed or hindered in
construction by any labor dispute, strike, lockout, fire, unavailability of
material, severe weather, acts of God, restrictive governmental laws or
regulations, riots, insurrection, war or other casualty or events of a similar
nature beyond its reasonable control ("Force Majeure"), the date for the
delivery of the Premises to Tenant "ready for occupancy" shall be extended for
the period of delay caused by the Force Majeure. If Landlord is delayed or
hindered in construction as a result of change orders or other requests by, or
acts of, Tenant ("Tenant Delay") the date for the delivery of the Premises to
Tenant "ready for occupancy" shall be accelerated by the number of days of delay
caused by Tenant Delay. The Scheduled Occupancy Date as extended or accelerated
as a result of the occurrence of a Force Majeure or Tenant Delay or with the
consent of Tenant, is herein referred to as the Occupancy Date.
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SECTION 3.
THE TERM
3.01 The initial term of this Lease (the "Initial Term or "Term ) will
commence (the "Commencement Date") on the earlier of: (i) the date Tenant takes
possession of the Premises; or (ii) the Occupancy Date; (iii) the date the
Occupancy Date would have occurred in the absence of Tenant Delay. Unless sooner
terminated or extended in accordance with the terms hereof, the Lease will
terminate the Number of Lease Years and Months set forth in Paragraph 1.01(f)
after the Commencement Date. If the Commencement Date is other than the first
day of a calendar month, the first Lease Year shall begin on the first day of
the first full calendar month following the Commencement Date. Upon request by
Landlord, Tenant will execute a written instrument confirming the Commencement
Date and the expiration date of the Initial Term.
SECTION 4.
THE BASE RENT
4.01 From and after the Commencement Date, Tenant agrees to pay to
Landlord, as minimum net rental for the Initial Term and Option Terms of this
Lease, the sum(s) set forth in Paragraph 1.01(g) (the "Base Rent"). The term
"Lease Year" as used herein shall be defined to mean a period of twelve (12)
consecutive calendar months. The first Lease Year shall begin on the date
determined in accordance with Section 3.01. Each succeeding Lease Year shall
commence on the anniversary date of the first Lease Year.
4.02 Base Rent and other sums due Landlord hereunder shall be paid by
Tenant to Landlord in equal monthly installments (except as otherwise provided
herein), in advance, without demand and without any setoffs or deductions
whatsoever, on the first day of each and every calendar month (the "Rent Day")
during the Initial Term and Option Terms, if any, at the office of Manager as
set forth in Section 1.01(c), or at such other place as Landlord from time to
time may designate in writing. In the event the Commencement Date is other than
the first day of a calendar month, the Base Rent for the partial first calendar
month of the Initial Term will be prorated on a daily basis based on the number
of days in the calendar month and will be paid in addition to the rent provided
in Paragraph 4.01 above. Base Rent for such partial calendar month and for the
first full calendar month of the first Lease Year shall be paid upon the
execution of this Lease by Tenant.
SECTION 5.
LATE CHARGES AND INTEREST
5.01 Any rent or other sums payable by Tenant to Landlord under this
Lease which are not paid within five (5) days after they are due will be subject
to a late charge of ten (10%) percent of the amount due. Such late charges will
be due and payable as additional rent on or before the next Rent Day.
5.02 Any rent late charges or other sums payable by Tenant to Landlord
under this Lease not paid within ten (10) days after the same are due will bear
interest at a per annum rate equal to the lower of: (i) eighteen (18%) percent
per annum, or (ii) the highest rate permitted by law. Such interest will be due
and payable as additional rent on or before the next Rent Day, and will accrue
from the date that such rent, late charges or other sums are payable under the
provisions of this Lease until actually paid by Tenant.
5.03 Any default in the payment of rent, late charges or other sums will
not be considered cured unless and until the late charges and interest due
hereunder are paid by Tenant to Landlord. If Tenant defaults in paying such late
charges and/or interest, Landlord will have the same remedies as Landlord would
have if Tenant had defaulted in the payment of rent. The obligation hereunder to
pay late charges and interest will exist in addition to, and not in the place
of, the other default provisions of this Lease.
SECTION 6.
OPERATING EXPENSES, UTILITIES, AND TAXES
6.01 in the event that Operating Expenses for the Project, in any
calendar year, exceed the Operating Expenses for the Base Year (as defined in
Paragraph 1.01 (1)), Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share (as defined in Paragraph 1.01(h)) of any such excess.
Tenant's obligations hereunder shall be pro-rated for any calendar year in which
Tenant is obligated to
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pay rent for only a portion thereof. For the purposes of this Section, the term
"Operating Expenses" shall mean and include those expenses paid or incurred by
Landlord for: maintaining, operating, owning, and repairing the Project,
providing electricity, steam, water, sewer, fuel, heating, lighting, air
conditioning, window cleaning, janitorial service, personal property taxes,
insurance (including, but not limited to, fire, extended coverage, liability,
worker's compensation, elevator, boiler and machinery, war risk, or any other
insurance carried in good faith by Landlord and applicable to the Project);
painting, uniforms, management fees, supplies, sundries, sales, or use taxes on
supplies or services; wages and salaries of all persons engaged in the
operation, maintenance and repair of the Project, and so-called fringe benefits,
including social security taxes, unemployment insurance taxes, providing
coverage for disability benefits, pension, hospitalization, welfare or
retirement plans, or any other similar or like expenses incurred under the
provisions of any collective bargaining agreement, or any other similar or like
expenses which Landlord pays or incurs to provide benefits for employees so
engaged in the operation, maintenance and repair of the Project; the charges of
any independent contractor who, under contract with Landlord or its
representatives, does any of the work of operating, maintaining or repairing the
Project; capital expenditures required under any governmental law or regulation;
legal and accounting expenses including, but not limited to, such expenses as
relate to seeking or obtaining reductions in, and refunds of, real estate taxes,
or any other expenses or charges, whether or not hereinbefore mentioned, which
in accordance with generally accepted accounting and management principles would
be considered as an expense of maintaining, operating, owning or repairing the
Project.
6.02 If the Project is not fully rented during all or a portion of any
year, then Landlord shall elect to make an appropriate adjustment of the
Operating Expenses and Real Estate Taxes (as defined below) for such year and
for the Base Year employing sound accounting and management principles, to
determine the amount of Operating Expenses and Real Estate Taxes that would have
been paid or incurred by Landlord had the Project been fully rented; and the
amount so determined shall be deemed to have been the amount of Operating
Expenses and Real Estate Taxes for such year. If any expenses relating to the
Project, though paid in one year, relate to more than one calendar year, at the
option of Landlord such expense may be proportionately allocated among such
related calendar years. In addition, in the event any Operating Expense or Real
Estate Tax applies to only some portion of the Project or is partially allocable
to other buildings or projects, landlord shall allocate such expense among
such buildings and projects in accordance with sound accounting and management
principles to determine the amount of Operating Expenses and Real Estate Taxes
for the Project and the Building.
6.03 In the event that Real Estate Taxes (as hereinafter defined) for the
Project, in any calendar year, exceed the Real Estate Taxes for the Base Year,
Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate Share
of any such excess over and above the Base Real Estate Taxes (as hereinafter
defined). The "Base Real Estate Taxes" shall be the Real Estate Taxes shown on
the bills for which the "due date" occurs in the Base Year. "Real Estate Taxes"
as used herein shall mean real estate taxes, assessments (general, special,
ordinary or extraordinary) sewer rents, rates and charges, taxes based upon the
receipt of rent, and any other federal, state or local charge (general,
special, ordinary or extraordinary) which may now or hereafter be imposed,
levied or assessed against the Project or any part thereof, or on any building
or improvements at any time situated thereon. In the event the State of Michigan
or any political subdivision thereof having taxing authority shall modify,
repeal or abolish the ad valorem tax on real property, or impose a tax or
assessment of any kind or nature upon, against, or with respect to the Project
or the rents payable by Tenant or on the income derived from the Project, or
with respect to Landlord's ownership interest in the Project, which tax is
assessed or imposed by way of substitution for or in addition to all or any part
of the Real Estate Taxes, then such tax or assessment shall be included within
the definitions of "Real Estate Taxes"; provided, however, nothing herein
contained shall impose an obligation on Tenant to pay the general income tax or
Michigan Single Business Tax liabilities of Landlord, except to the extent such
a tax is being used to fund governmental functions presently or previously
funded by ad valorem taxes on real property.
6.04 At any time and from time to time, Landlord may reasonably estimate
the amount by which current Real Estate Taxes and Operating Expenses are
expected to exceed the Real Estate Taxes and Operating Expenses for the Base
Year (the "Estimated Excess Expenses"). Tenant shall pay its Proportionate Share
of the Estimated Excess Expenses by depositing with Landlord on each Rent Day
during the term hereof an amount equal to one-twelfth (1/12) of its annual share
of the Estimated Excess Expenses. Landlord shall deliver to Tenant, within a
reasonable period of time after the close of each calendar year, an annual
statement indicating the amount by which the Real Estate Taxes and Operating
Expenses actually incurred in that calendar year exceed the Real Estate Taxes
and Operating Expenses for the Base Year (the "Actual Excess Expenses"). In the
event that the Actual Excess Expenses exceed the Estimated Excess Expenses,
Tenant shall pay Tenant's Proportionate Share of the difference to Landlord
within fifteen (15) days of delivery of the annual statement. In the event that
Estimated Excess Expenses exceed Actual Excess Expenses, then at Landlord's
option Tenant shall either be reimbursed to the extent that Tenant's payments
toward Tenant's share of the Estimated Excess Expenses exceed Tenant's
Proportionate Share of the Actual Excess Expenses, or Tenant shall be granted a
corresponding credit against the Base Rent or other sums next due Landlord
hereunder.
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6.05 Tenant shall be responsible for and pay before delinquent all
municipal, county, and state taxes assessed, levied or imposed during the term
of this Lease, and all extensions thereof, upon the leasehold interest and all
furniture, fixtures, machinery, equipment, apparatus, systems and all other
personal property of any kind whatsoever located at, placed in or used in
connection with the Premises.
6.06 Landlord agrees with Tenant that Landlord will furnish heat and air
conditioning during normal business hours (8:00 a.m. to 6:00 p.m. Monday through
Friday and Saturday 9:00 a.m. to 2:00 p.m. excluding Building holidays), usual
and customary janitorial services, as set forth in Exhibit "C", and provide
water and sewer service to the Premises and hot and cold water for ordinary
lavatory purposes in the common area restrooms. However, if Tenant uses or
consumes water for any other purpose or in unusual quantities (of which fact
Landlord shall be the sole judge) Landlord may install a water meter at Tenant's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair, to register such water consumption. Tenant shall pay
for the quantity of water shown on said meter, together with the sewer rents,
debt service and other charges made by the local utilities for water and sewer
service, as additional rent, at the secondary rate per gallon (general service
rate) established by the applicable governmental authority or the applicable
utility company providing the water. Whenever machines or equipment which
generate heat are used in the Premises which affect the temperature otherwise
maintained by the air-conditioning system, Landlord reserves the right to
install supplementary air-conditioning equipment in the Premises, and the cost
thereof, and the expense of operation and maintenance thereof, shall be paid by
Tenant to Landlord. Although Landlord will provide air-conditioning and/or heat
upon the prior request of Tenant in accordance with Building practices for hours
other than regular business hours, Tenant will pay Landlord's charges for
providing such service. Said charges shall include a cost equal to the cost to
operate the equipment for Tenant's expanded business hours and days, and
Landlord's maintenance, equipment amortization and other appropriate charges
which Landlord determines are attributable to operating the equipment for
periods in excess of the normal business hours described above.
6.07 Tenant shall pay all charges made against the Premises for
electricity used upon or furnished to the Premises as and when due during the
continuance of this Lease. To the extent electricity is not separately metered
for the Premises, Landlord shall make a determination of Tenant's usage of
electricity supplied to the Building, and Tenant agrees to pay for such
electricity within thirty (30) days after request therefor from Landlord.
Whether or not metered, Tenant shall pay for the electricity at the secondary
rate (general service rate) established by the applicable governmental authority
or the applicable utility company providing the electricity. Tenant shall also
pay for fluorescent or other electric light bulbs or tubes and electric
equipment used in the leased premises.
SECTION 7.
USE OF PREMISES
7.01 Tenant shall occupy and use the Premises during the Term for the
purposes set forth in Section 1.01(m) only, and for no other purpose without the
prior written consent of Landlord. Tenant agrees that it will not use or permit
any person to use the Premises or any part thereof for any use or purpose in
violation of the laws of the United States, the laws, ordinances or other
regulations of the State or municipality in which the Premises are located, or
of any other lawful authorities, or any building and use restrictions, now or
hereafter affecting the Premises or any part thereof.
7.02 Tenant will not do or permit any act or thing to be done in or to
the Premises or the Project which will invalidate or be in conflict with any
terms or conditions required to be contained in any property or casualty
insurance policy authorized to be issued in the State of Michigan or any term or
condition of the Insurance Services Office's (ISO) Commercial Property Insurance
and/or Commercial General Liability Insurance Conditions or any different or
additional terms and conditions of any insurance policy in effect on the
Premises or the Project from time to time (collectively the "Building
Insurance"), Nor shall Tenant do nor permit any other act or thing to be done in
or to the Premises or the Project which shall or might subject Landlord to any
liability or responsibility to any person or for property damage, nor shall
Tenant use the Premises or keep anything on or in the Project except as now or
hereafter permitted by the fire regulations, the fire department or zoning,
health, safety, land use or other regulations. Tenant, at Tenant's sole cost and
expense, shall comply with all requirements and recommendations set forth by any
property or casualty insurer or reinsurer providing coverage for the Premises or
the Project or by any person or entity engaged by Landlord or Manager to perform
any loss control, analysis or assessment for the Premises or the Project. Tenant
shall not do or permit anything to be done in or upon the Premises or the
Project or bring or keep anything therein or use the Premises or the Project in
a manner which increases the rate of premium for any Building Insurance or any
property or equipment located therein over the rate in effect at the
commencement of the Term of this Lease. In addition, Tenant agrees to pay
Landlord the amount of any increase in premiums for insurance which may be
charged during the term of this Lease resulting from the act or omissions of
Tenant or the character or nature of its occupancy or use
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of the Project or the Premises, whether or not Landlord has consented to the
same. Any scheduled or "make-up" of any insurance rate for the Premises, the
Building or the Project issued by any insurance company establishing insurance
premium rates for the Premises, Building or the Project shall be prima facie
evidence of the facts therein stated and of the several items and charges in the
insurance premium rates then applicable to the Premises, the Building or the
Project. Tenant shall give Landlord notice promptly after Tenant learns of any
accident, emergency, or occurrence for which Landlord is or may be liable, or
any fire or other casualty or damage or defects to the Premises, the Building or
the Project which Landlord is or may be responsible or which constitutes the
property of Landlord.
7.03 Tenant shall not perform acts or carry on any activities or engage
in any practices which may injure the Premises or any portion of the Project or
which may be a nuisance or menace to other persons on or in the Project. Tenant
shall pay all costs, expenses, fines, penalties, or damages which may be imposed
upon Landlord by reason of Tenant's failure to comply with the provisions of
this Section.
7.04 Tenant will not place any load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such items
shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance. If at any time any windows of the Premises are temporarily or
permanently closed, darkened or covered for any reason whatsoever, including
Landlord's own acts, Landlord shall not be liable for any damage Tenant may
sustain thereby, and the same shall not be considered a default under this Lease
and Tenant shall not be entitled to any compensation therefore nor abatement of
any Base Rent or any other sums due hereunder, nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction, construction, actual
or otherwise.
7.05 During the term hereof, and consistent with janitorial services
provided by Landlord, Tenant will keep the Premises in a clean and wholesome
condition, will use the same in a careful and proper manner, and generally will
comply with all laws, ordinances, orders and regulations affecting the Premises
and the cleanliness, safety, occupancy and use thereof. Tenant will not commit
waste in or on the Premises, and will use the Premises in accordance with the
Rules and Regulations of the Project, as set forth in Exhibit B, attached hereto
and made a part hereof.
7.06 As between Landlord and Tenant, Tenant shall be responsible for any
alterations, changes or improvements to the Premises which may be necessary in
order for the Premises and Tenant's use thereof to be in compliance with the
Americans with Disabilities Act of 1990 and its state and local counterparts or
equivalents (the "Disabilities Act") during the term of this Lease.
7.07 For the purposes of this Lease, the term "Hazardous Materials" shall
mean, collectively, (i) any biological materials, chemicals, materials,
substances or wastes which are now or hereafter become defined as or included in
the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", or words of similar import, under any
applicable Environmental Law (as defined below) and (ii) any petroleum or
petroleum products and asbestos in any form that is or could become friable.
7.08 For the purposes of this Lease, the term "Environmental Laws" shall
mean all federal, state, and local laws, statutes, ordinances, regulations,
criteria, guidelines and rules of common law now or hereafter in effect, and in
each case as amended, and any judicial or administrative interpretation thereof,
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases or Hazardous Materials or otherwise
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials. Environmental Laws
include but are not limited to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended; the Resource Conservation
and Recovery Act, as amended; the Clean Air Act, as amended; the Clean Water
Act, as amended; and their state and local counterparts or equivalents.
7.09 Tenant shall not (either with or without negligence) cause or permit
the escape, disposal or release of any Hazardous Materials. Tenant shall not
allow the storage or use of such Hazardous Materials on the Premises or the
Project in any manner prohibited by the Environmental Laws or by the highest
standards prevailing in the industry for the storage and use of such Hazardous
Materials, nor allow to be brought into the Premises or the project any such
hazardous materials except to use in the ordinary course of Tenant's business,
and then only after written notice is given to Landlord of the identity of such
Hazardous Materials and Landlord consents in writing to the use of such
materials. Landlord shall have the right at any times during the term of this
Lease to perform assessments of the environmental condition of the Premises and
of Tenant's compliance with this Section 7.09. In connection with any such
assessment, Landlord shall have the right to enter and inspect the Premises and
perform tests (including physically invasive tests), provided such tests are
performed in a manner that minimizes disruption to
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Tenant. Tenant will cooperate with Landlord in connection with any such
assessment by, among other things, responding to inquires and providing relevant
documentation and records. Tenant will accept custody and arrange for the
disposal of any Hazardous Materials that are required to be disposed of as a
result of those tests. Landlord shall have no liability or responsibility to
Tenant with respect to any such assessment or test or with respect to results of
any such assessment or test. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
Hazardous Materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement applies
to the Premises or Tenant's activities on the Project. If any inspection
indicates any (i) non-compliance with any Environmental Law or the highest
standards prevailing in the industry for the storage and use of Hazardous
Materials; (ii) damage; or (iii) contamination, Tenant shall, at its cost and
expense, remedy such non-compliance, damage or contamination. In addition,
Tenant shall execute affidavits, representations and the like from time to time
at Landlord's request concerning Tenant's best knowledge and belief regarding
the presence of Hazardous Materials on the Premises. Irrespective of whether
Landlord elects to inspect the Premises, if Hazardous Materials are found on or
about the Premises, Landlord shall have no responsibility, liability or
obligation whatsoever with respect to the existence, removal or transportation
of the Hazardous Material or the restoration and remediation of the Premises.
Further, Landlord shall have the right to require Tenant to immediately
terminate the conduct of any activity in violation of the Environmental Law, the
highest standards prevailing in the industry for the storage and use of
Hazardous Materials or, if none exist, the standards determined by Landlord.
Tenant's obligations under this paragraph with respect to any environmental
condition shall not be applicable to the extent that such environmental
condition (a) exists prior to the commencement of the initial term of this Lease
or (b) results from (i) the actions or omissions of Landlord either before the
commencement of this Lease, during the term hereof or after the termination of
this Lease or (ii) the actions or omissions of any preceding or succeeding
tenant or owner of the Premises or (iii) the actions or omissions of any person
or entity who or which is not a subtenant, employee, agent, invitee, customer,
visitor, licensee, contractor or designee of Tenant.
7.10 Tenant further agrees that it will not, by either action or
inaction, invite or otherwise cause agents or representatives of any federal,
state or local governmental agency to enter onto the Premises or the Project
and/or investigate the Premises or the Project. This agreement does not allow
Tenant to obstruct any such entry or investigation and the mere fact of a
regulatory agency entry or investigation without Tenant's involvement either by
action or inaction shall not be deemed a breach of this lease. Nothing set forth
in this paragraph shall prohibit Tenant from reporting any fact or condition
which Tenant has been advised it has a legal obligation to report provided
Tenant first notifies Landlord of such fact or condition and Tenant's intention
to report the fact or condition.
7.11 Tenant shall indemnify, hold harmless and defend Landlord, its
licensees, servants, agents, employees and contractors from any loss, damage,
claim, liability or expense (including reasonable attorney's fees) arising out
of the failure of the Premises or Tenant's use thereof to be in compliance with
Disabilities Act. Tenant shall not be required to indemnify, hold harmless or
defend Landlord for the failure, if any, of the common areas (including the
parking areas, ramps and walkways) to comply with the Disabilities Act. Tenant
shall indemnify, hold harmless and defend Landlord, its licensees, servants,
agents, employees and contractors for any loss, damage, claim, liability or
expense (including reasonable attorney's fees) arising out of any violation of
any Environmental Law(s) by Tenant or its responsible parties (as described in
Section 7.09 above) on the Premises or the Project which occurs after the date
hereof. Tenant shall notify Landlord as soon as possible after Tenant learns of
the existence of or potential for any such loss, damage, claim, liability or
expense arising out of any violation or suspected violation of any Environmental
Law(s) or the Disabilities Act. In the event Tenant refuses to address such
violation or suspected violation within five (5) days of such notice from
Landlord, and, thereafter, to investigate such violation or suspected violation,
and promptly commence and diligently pursue any action required to address such
violation or suspected violation, Landlord shall have the right, in addition to
every other right and remedy it may have hereunder, to terminate this Lease by
giving ten (10) days prior written notice thereof to Tenant, and upon the
expiration of such ten (10) days, this Lease shall terminate. The covenants set
forth herein shall survive the expiration or earlier termination of this Lease.
SECTION 8.
INSURANCE
8.01 Commencing on the Commencement Date, Tenant shall, during the Term
of this Lease, maintain in full force and effect policies of commercial general
liability insurance (including premises, operation, bodily injury, personal
injury, death, independent contractors, products and completed operations, broad
form contractual liability and broad form property damage coverage), in a
combined single limit amount of not less than One Million Dollars ($1,000,000)
per occurrence and Two Million Dollars ($2,000,000) of excess umbrella coverage
(exclusive of defense costs), against all claims, demands or actions with
respect to damage, injury or death made by or on
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behalf of any person or entity, arising from or relating to the conduct and
operation of Tenant's business in, on or about the Premises (which shall include
Tenant's signs, if any), or arising from or related to any act or omission of
Tenant or of Tenant's principals, officers, agents, contractors, servants,
employees, licensees and invitees. Whenever, in Landlord's reasonable judgment,
good business practice and changing conditions indicate a need for additional
amounts or different types of insurance coverage, Tenant shall, within ten (10)
days after Landlord's request, obtain such insurance coverage, at Tenant's sole
cost and expense.
8.02 Commencing on the Commencement Date, Tenant shall obtain and
maintain policies of workers' compensation and employers' liability insurance
which shall provide for statutory workers' compensation benefits and employers'
liability limits of not less than that required by law.
8.03 Commencing on the Commencement Date, Tenant shall obtain and
maintain insurance protecting and indemnifying Tenant against any and all damage
to or loss of any personal property, fixtures, leasehold improvements,
alterations, decorations, installations, repairs, additions, replacements or
other physical changes in or about the Premises, including but not limited to
the Tenant Improvements, and all claims and liabilities relating thereto, for
their full replacement value without deduction or depreciation. In addition, if
Tenant shall install or maintain one or more pressure vessels to serve Tenant's
operations on the Premises, Tenant shall, at Tenant's sole cost and expense,
obtain, maintain and keep in full force and effect appropriate boiler or other
insurance coverage therefore in an amount not less than One Million and No/100
Dollars ($1,000,000.00) (it being understood and agreed, however, that the
foregoing shall not be deemed a consent by Landlord to the installation and/or
maintenance of any such pressure vessels in the Premises, which installation
and/or maintenance shall at all times be subject to the prior written consent of
Landlord). All insurance policies required pursuant to this Paragraph 8.03 shall
be written on a so-called "all risk" form and shall be carried in sufficient
amount so as to avoid the imposition of any co-insurance penalty in the event of
a loss. Such insurance shall provide the broadest coverage then available,
including coverage for loss of profits or business income or reimbursement for
extra expense incurred as the result of damage or destruction to all or a part
of the Premises.
8.04 All insurance policies which Tenant shall be required to maintain
pursuant to this Section 8 shall, in addition to any of the foregoing: be
written by insurers which have an A.M. Best & Company rating of "A", Class "X",
or better and who are authorized to write such business in the State of Michigan
and are otherwise satisfactory to Landlord; be written as "occurrence" policy;
be written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord or any ground or building lessor may carry; name
Landlord, the Manager, and Landlord's mortgagee and ground or building lessor,
if any, as additional insureds; be endorsed to provide that they shall not be
cancelled, failed to be renewed, diminished or materially altered for any reason
except on thirty (30) days prior written notice to Landlord and the other
additional insureds; and provide coverage to Landlord, Landlord's property
management company, and Landlord's mortgagee whether or not the event or
occurrence giving rise to the claim is alleged to have been caused in whole or
in part by the acts or negligence of Landlord, Landlord's property management
company, or Landlord's mortgagee. At Landlord's option, either the original
policies or certified duplicate copies of the original policies will be
delivered by Tenant to Landlord at least ten (10) days prior to their effective
date thereof, together with receipts evidencing payment of the premiums
therefor. Tenant will deliver certificates of renewal for such policies to
Landlord not less than thirty (30) days prior to the expiration dates thereof.
No such policy shall contain a deductible or self insured retention greater than
$5,000.00 per claim, nor shall any such policy be the subject of an
indemnification or other arrangement by which any insured is obligated to repay
any insurer with respect to loss occurring on the Premises.
8.05 If Tenant fails to provide all or any of the insurance required by
this Section 8 or subsequently fails to maintain such insurance in accordance
with the requirements hereof, then after giving one (1) business days written
notice to Tenant, Landlord may (but will not be required to) procure or renew
such insurance to protect its own interests only, and any amounts paid by
Landlord for such insurance will be additional rental due and payable on or
before the next Rent Day, together with late charges and interest as provided
in Section 5 hereof. Landlord and Tenant agree that no insurance acquired by
Landlord pursuant hereto shall cover any interest or liability of Tenant and any
procurement by Landlord of any such insurance or the payment of any such
premiums shall not be deemed to waive or release the default of Tenant with
respect thereto.
SECTION 9.
DAMAGE BY FIRE OR OTHER CASUALTY
9.01 It is understood and agreed that if, during the Term hereof, the
Project and/or the Premises shall be damaged or destroyed in whole or in part by
fire or other casualty, without the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors, invitees or licensees, which damage is
covered by insurance carried pursuant to Section 8 above, unless Landlord elects
to terminate this Lease
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as provided in Paragraph 9 02 below, Landlord shall cause the Project and/or the
Premises to be repaired and restored to good, tenantable condition with
reasonable dispatch at its expense; provided, however, Landlord shall not be
obligated to expend for such repair or restoration an amount in excess of
insurance proceeds made available to Landlord for such purpose, if any.
Landlord's obligation hereunder shall be limited to repairing or restoring the
Project and/or the Premises to substantially the same condition that existed
prior to such damage or destruction.
9.02 If (i) more than fifty (50%) percent of the floor area of the
Premises shall be damaged or destroyed, (ii) more than twenty-five (25%) percent
of the Project shall be damaged or destroyed, or (iii) any material damage or
destruction occurs to the Premises or the Project during the last twelve (12)
months of the Initial Term or Option Term, as the case may be, then Landlord may
elect to either terminate this Lease or repair and rebuild the Premises. In
order to terminate this lease pursuant to this Paragraph, Landlord must give
written notice to Tenant of its election to so terminate, such notice to be
given within ninety (90) days after the occurrence of damage or destruction
fitting the above description, and thereupon the term of this Lease shall expire
by lapse of time ten (10) days after such notice is given and Tenant shall
vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant. Tenant
acknowledges that Landlord will not carry insurance on Tenant's furniture and/or
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Landlord will not be obligated to repair any
damage thereto or replace the same.
9.03 Tenant shall give immediate notice to Landlord in case of fire or
accident at the Premises. If Landlord repairs or restores the Premises as
provided in Paragraph 9.01 above, Tenant shall promptly repair or replace its
trade fixtures, furnishings, equipment, personal property and leasehold
improvements in a manner and to a condition equal to that existing prior to the
occurrence of such damage or destruction.
9.04 If the casualty, or the repairing or rebuilding of the Premises
pursuant to Paragraphs 9.01 and 9.02 above shall render the Premises
untenantable, in whole or in part, a proportionate abatement of the rent due
hereunder shall be allowed from the date when the damage occurred until the date
Landlord completes the repairs on the Premises or, in the event Landlord elects
to terminate this Lease, until the date of termination. Such abatement shall be
computed on the basis of the ratio of the floor area of the Premises rendered
untenantable to the entire floor area of the Premises.
9.05 Tenant shall not entrust any property to any employee, contractor,
licensee, or invitee of Landlord. Any person to whom any property is entrusted
by or on behalf of Tenant in violation of foregoing prohibition shall be deemed
to be acting as Tenant's agent with respect to such property and neither
Landlord nor its agents shall be liable for any damage to property of Tenant or
of others entrusted to employees of the Project, nor shall Landlord or its
agents be liable for any such damage caused by other tenants or persons in, upon
or about the Project or caused by operations or construction of any private,
public or quasi-public work.
9.06 Notwithstanding Landlord's right not to terminate this Lease
pursuant to Section 9.01 above, in the event the Premises are damaged or
destroyed in whole or in part by fire or other casualty, without the fault or
neglect of Tenant, Tenant's servants, employees, agents, visitors, invitees or
licensees, tenant may elect to terminate this Lease if: (i) more than fifty
percent (50%) of the floor area of the Premises shall be damaged or destroyed,
or (ii) any material damage or destruction occurs to the Premises during the
last twelve (12) months of the Initial Term or Option Term, as the case may be,
or (iii) if the Restoration Period (as defined below) for the aforementioned
casualty (i) or (ii) is more than two hundred and seventy (270) days after the
date of said damage or destruction, (individually referred to as the "Qualified
Casualty"). In order to terminate this Lease pursuant to Qualified Casualty (i)
or (ii) above Tenant shall, within fifteen (15) days of said damage or
destruction, provide written notice to Landlord indicating its intent to
terminate its Lease, and thereupon the term of this Lease shall expire by lapse
of time thirty (30) days after said notice from Tenant is given and Tenant shall
vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant. If Tenant fails
to provide written notice to Landlord within such time period, Tenant's right
to terminate this Lease under this paragraph shall be deemed waived. In order to
terminate this Lease for Qualified Casualty (iii) Tenant shall within fifteen
(15) days of the damage or destruction resulting in Qualified Casualty (i) or
(ii), provide written notice to Landlord requesting an estimate of the time
required to substantially restore the Premises. If Tenant fails to provide
written notice to Landlord within such time period, Tenant's right to terminate
this Lease under this paragraph shall be deemed waived. Within a reasonable
time of receipt of Tenant's notice requesting the restoration time frame,
Landlord shall provide a written notice to Tenant (the "Landlord Casualty
Restoration Estimate
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Notice") indicating the scheduled completion date to repair or restore the
Premises as described in Section 9.01 (the "Restoration Period"). If the
Restoration Period is more than two-hundred seventy (270) days after the date of
said damage or destruction, then Tenant may elect to terminate this Lease. In
order to terminate this Lease, Tenant must give written notice to Landlord of
its election to so terminate, such notice (the "Tenant Casualty Termination
Notice") shall be given within fifteen (15) days of the date the Landlord
Casualty Restoration Estimate Notice and thereupon the Term of this Lease shall
expire by lapse of time thirty (30) days after Tenant Casualty Termination
Notice is given and Tenant shall vacate the Premises and surrender the same to
Landlord, without prejudice, however, to Landlord's rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and any
rent owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant.
SECTION 10.
REPAIRS, RENOVATIONS AND ALTERATIONS
10.01 Tenant shall, at Tenant's sole expense, keep the interior of the
Premises and the fixtures therein in good condition, reasonable wear and tear
excepted, and will also repair all damage or injury to the Premises and fixtures
resulting from the carelessness, omission, neglect or other action or inaction
of Tenant, its servants, employees, agents, visitors, invitees or licensees.
Such damage shall be promptly repaired or damaged items replaced by Tenant, at
its sole expense, to the satisfaction of Landlord. If Tenant fails to make such
repairs or replacements, Landlord may do so and the cost thereof shall become
collectible as additional rent hereunder and shall be paid by Tenant within ten
(10) days after presentation of statement therefor. Landlord shall maintain, and
shall make all necessary repairs and replacements to, the Building, the heating,
air conditioning and electrical systems located therein, and the Common Areas,
provided that at Landlord's option, (i) Tenant shall make all repairs and
replacements arising from its act, neglect or default and that of its agents,
servants, employees, invitees and licensees, or (ii) Landlord may make such
repairs and replacements and the costs thereof shall become collectable as
additional rent hereunder and shall be paid by Tenant within five (5) days after
presentation of a statement therefore. Tenant shall keep and maintain the
Premises in a clean, sanitary and safe condition, and shall keep and maintain
the interior of the Premises in full compliance with the laws of the United
States and State of Michigan, all directions, rules and regulations of any
health officer, fire marshal, building inspector, or other proper official of
any governmental agency having jurisdiction over the Premises, and the
requirements of Landlord's mortgagee, all at Tenant's full cost and expense, and
Tenant shall comply with all requirements of law, ordinance and regulation
affecting the Premises. Tenant shall make all non-structural repairs to the
Premises as and when needed to preserve them in good order and condition. All
the aforesaid repairs shall be of quality or class equal to the original
construction. Tenant shall give Landlord prompt written notice of any defective
condition in any plumbing, heating system or electrical lines located in,
servicing or passing through the Premises and following such notice, Landlord
shall remedy the condition with due diligence but at the expense of Tenant if
repairs are necessitated by damage or injury attributable to Tenant, Tenant's
servants, agents, employees, invitees or licensees, There shall be no allowance
to Tenant for diminutions of rental value and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord, Tenant, or others making or failing to make any repairs,
alterations, additions, or improvements in or to any portion of the Building or
the Premises or in and to the fixtures, appurtenances or equipment thereof. The
provisions of this Section 10 with respect to the making of repairs shall not
apply in the case of fire or other casualty which are dealt with in Section 9
hereof.
10.02 Tenant shall not make any renovations, alterations, additions or
improvements to the Premises without Landlord's prior written consent. All
plans and specifications for such renovations, alterations, additions or
improvements shall be approved by Landlord prior to commencement of any work.
Landlord's approval of the plans, specifications and working drawings for
Tenant's alterations shall create no responsibility or liability on the part of
Landlord for their completeness, design sufficiency, or compliance with laws,
rules and regulations of governmental agencies or authorities, including but not
limited to the Americans with Disabilities Act, as amended. All renovations,
alterations, additions or improvements made by Tenant upon the Premises, except
for movable office furniture and movable trade fixtures installed at the expense
of Tenant, shall be and shall remain the property of Landlord, and shall be
surrendered with the Premises at the termination of this Lease, without
molestation or injury. In addition, Landlord may designate by written notice to
Tenant the alterations, additions, improvements and fixtures made by or for
Tenant, which shall be removed by Tenant at the expiration or termination of the
Lease and Tenant shall promptly remove the same and repair any damage to the
Premises caused by such removal.
10.03 Tenant agrees that all renovations, alterations, additions and
improvements made by it pursuant to Paragraph 10.02, notwithstanding Landlord's
approval thereof, shall be done in a good and workmanlike manner and in
conformity with all guidelines provided by Landlord and all laws, ordinances and
regulations of all public authorities having jurisdiction, that materials of
good quality shall be
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employed therein, that the structure of the Premises shall not be impaired
thereby, that the work shall be carried out and completed in an orderly, clean
and safe manner, and that, while the work is being performed, Tenant shall
maintain builder's risk insurance coverage with Landlord as a named insured,
which insurance coverage shall meet the criteria set forth in Section 8.
SECTION 11.
LIENS
11.01 Tenant will keep the Premises free of liens of any sort and will
hold Landlord harmless from any liens which may be placed on the Premises except
those attributable to debts incurred by Landlord. In the event a construction or
other lien shall be filed against the Building, the Premises or Tenant's
interest therein as a result of any work undertaken by Tenant or its employees,
agents, contractors or subcontractors, or as a result of any repairs or
alterations made by or any other act of Tenant or its employees, agents,
contractors or subcontractors, Tenant shall, within two (2) days after receiving
notice of such lien, discharge such lien either by payment of the indebtedness
due the lien claimant or by filing a bond (as provided by statute) as security
for the discharge of such lien. In the event Tenant shall fail to discharge such
lien, Landlord shall after have the right to procure such discharge by filing
such bond, and Tenant shall pay the cost of such bond to Landlord as additional
rent upon the next Rent Day in accordance with Section 5 hereof.
SECTION 12.
EMINENT DOMAIN
12.01 If all of the Premises are condemned or taken in any manner
(including without limitation any conveyance in lieu thereof) for any public or
quasi-public use, the term of this Lease shall cease and terminate as of the
date title is vested in the condemning authority. If (i) more than fifty (50%)
percent of the floor area of the Premises shall be condemned or taken in any
manner, or (ii) more than twenty-five (25%) percent of the Building shall be
condemned or taken, or (iii) any material condemnation or taking occurs, during
the last twelve (12) months of the Initial Term or Option Term, as the case
may be, or (iv) such a portion of the parking area on the Land is so condemned
or taken that the number of parking spaces remaining are less than the number
required by applicable zoning laws or other building code for the Building,
then Landlord may elect to terminate this Lease. In order to terminate this
Lease pursuant to this Paragraph, Landlord must give Tenant written notice of
its election to so terminate, such notice to be given not later than ninety (90)
days after the completion of such condemnation or taking, and thereupon the term
of this Lease shall expire on the date set forth in such notice, and Tenant
shall vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant.
12.02 If this Lease is not terminated following such a condemnation or
taking, Landlord, as soon as reasonably practicable after such condemnation or
taking and the determination and payment of Landlord's award on account thereof,
shall expend as much as may be necessary of the net amount which is awarded to
Landlord and released by Landlord's mortgagee, if any, in restoring, to the
extent originally constructed by Landlord (consistent, however, with zoning laws
and building codes then in existence), so much of the Building as was originally
constructed by Landlord to an architectural unit as nearly like its condition
prior to such taking as shall be practicable; provided, however, Landlord shall
not be obligated to expend for such restoration an amount in excess of
condemnation proceeds made available to Landlord, if any. Landlord's obligation
hereunder shall be limited to restoring the Building and/or the Premises to
substantially the same condition that existed prior to such condemnation or
taking.
12.03 If this Lease is not terminated pursuant to Paragraph 12.01, the
Base Rent and other sums payable by Tenant hereunder, as adjusted as provided
herein, shall be reduced in proportion to the reduction in area of the Premises
by reason of the condemnation or taking. If this Lease is terminated pursuant to
Paragraph 12.01. the minimum net rental and other charges which are the
obligation of Tenant hereunder shall be apportioned and prorated accordingly as
of the date of termination.
12.04 The whole of any award or compensation for any portion of the
Premises taken, condemned or conveyed in lieu of taking or condemnation,
including the value of Tenant's leasehold interest under the Lease, shall be
solely the property of and payable to Landlord. Nothing herein contained shall
be deemed to preclude Tenant from seeking, at its own cost and expense, an award
from the condemning authority for loss of its business, the value of any trade
fixtures or other personal property of Tenant in the Premises or moving
expenses, provided that the award for such claim or claims shall not be in
diminution of the award made to Landlord.
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SECTION 13.
ASSIGNMENT OR SUBLETTING
13.01 Tenant agrees not to assign or in any manner transfer this Lease
or any interest in this Lease without the prior written consent of Landlord
which shall not be unreasonably withheld or delayed, and not sublet the premises
or any part of the Premises or to allow anyone to use or to come in, and not to
sublet the Premises or any part of the remise allow through or under the
Premises without Landlord's consent which shall not be unreasonably withheld or
delayed. Any attempted subletting or assignment without Landlord's consent
shall be voidable in Landlord's sole discretion and, at Landlord's option, shall
grant Landlord the right to terminate this Lease or to exercise any of the other
rights or remedies it may have hereunder. If consented to, no assignment or
Subletting shall be binding upon Landlord unless the sublessee or assignee shall
deliver to Landlord an instrument (in recordable form, if Landlord so requests)
containing an agreement of assumption of all of Tenant's obligations under this
Lease. In no event may Tenant assign, sublet or otherwise transfer this Lease or
any interest in this Lease at any time while an Event of Default exists
hereunder. Landlord may, in its sole discretion, refuse to give its consent to
any proposed subletting or assignment or exercise its other rights hereunder for
any reason, including, but not limited to, the financial condition,
creditworthiness or business reputation of the proposed sublessee or assignee,
the prevailing market or quoted rental rates for space in the Building or other
comparable buildings, and the proposed use of the Premises by, or business of,
the proposed sublessee or assignee. One consent by Landlord to a subletting or
assignment will not be deemed a consent to any subsequent assignment,
subletting, occupation or use by any other person. Neither the consent to any
assignment or subletting nor the acceptance of rent from an assignee, subtenant
or occupant will constitute a release of Tenant from the further performance of
the obligations of Tenant contained in this Lease. A dissolution, merger,
consolidation, or other reorganization of Tenant, and the issuance or transfer
of TWENTY (20%) PERCENT OR MORE OF THE VOTING CAPITAL OF TENANT TO PERSONS other
than shareholders as of the beginning of such period within any twelve (12)
month period, shall each be deemed to be an assignment of this Lease, and as
such, prohibited without Landlord's prior written consent.
13.02 In the event Tenant desires to sublet all or a portion of the
Premises or assign this Lease, Tenant shall give notice to Landlord setting
forth the terms of the proposed subletting or assignment together with such
financial and other information Landlord may request. Landlord shall have the
right, exercisable by written notice to Tenant within sixty (60) days after
receipt of Tenant's notice, (1) to consent or refuse to consent thereto in
accordance with Paragraph 13.01 above, or (ii) to terminate this Lease which
termination may, in Landlord's sole discretion, be conditioned upon Landlord and
the proposed subtenant/assignee entering into a new Lease. However, in the event
Landlord desires to elect to terminate this Lease, it shall first notify Tenant
of its desire whereupon Tenant may withdraw the request within ten (10) days
after Landlord's notice by the delivery of written withdrawal thereof to
Landlord whereupon Landlord shall withdraw its recapture option and Tenant shall
remain fully obligated under this Lease.
13.03 Upon the occurrence of an Event of Default, as defined under
Section 18, if all or any part of the Premises are then sublet or assigned,
Landlord, in addition to any other remedies provided by this Lease or by law,
may, at its option, collect directly from the sublessee or assignee all rent
becoming due to Landlord by reason of the subletting or assignment. Any
collection by Landlord from the sublessee or assignee shall not be construed to
constitute a waiver or release of Tenant from the further performance of its
obligations under this Lease or the making of,a new Lease with such sublessee or
assignee.
13.04 In the event Tenant shall sublet all or a portion of the Premises
or assign this Lease, all of the sums of money or other economic consideration
received by Tenant or its affiliates, directly or indirectly, as a result of
such subletting or assignment, whether denominated as rent or otherwise, which
exceed in the aggregate the total sums which Tenant is obligated to pay Landlord
under this Lease (prorated to reflect obligations allocable to that portion of
the Premises subject to such sublease) shall be payable to Landlord as
additional rent under this Lease without effecting or reducing any other
obligation of Tenant hereunder.
SECTION 14.
INSPECTION OF PREMISES
14.01 Tenant agrees to permit Landlord to enter the Premises for the
purpose of inspecting the same and to show same to prospective purchasers,
tenants or mortgagees of the Project, and to make such repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable, and
Landlord shall be allowed to take all material into and upon the Premises that
may be required therefor without the same constituting an eviction of Tenant in
whole or in part and the rent reserved shall in no way xxxxx while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. Landlord will give Tenant
reasonable notice prior to an
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entry by Landlord pursuant to this Section 14.01, except in the case of
emergencies in which event no notice need be given.
SECTION 15.
FIXTURES AND EQUIPMENT
15.01 All fixtures and equipment paid for by Landlord and all fixtures
and equipment which may be paid for and placed on the Premises by Tenant from
time to time but which are so incorporated and affixed to Premises that their
removal would involve damage or structural change to Premises will be and remain
the property of Landlord.
15.02 All tenant furnishings, office equipment and tenant fixtures (other
than those specified in Sections 10.02 and 15.01), which are paid for and placed
on the Premises by Tenant from time to time (other than those which are
replacements for fixtures originally paid for by Landlord) will remain the
property of Tenant.
SECTION 16.
PARKING AREAS
16.01 Tenant and its agents, employees, customers, licensees and invitees
shall have the non-exclusive right to use in common with Landlord and all other
tenants and occupants of the Building and their respective agents, employees,
customers, licensees and invitees, the Common Area parking and loading dock
facilities, if any, on the Land, and all driveways, entrances and exits located
within the Project necessary to provide a means of ingress and egress to and
from the Premises. Such use of parking facilities shall be subject to, and
consistent with, the Rules and Regulations of the Project (as set forth in
Exhibit B), together with such reasonable modifications and additions as may be
made thereto during the term of this Lease. Landlord shall designate the number
of parking spaces set forth in Paragraph 1.01(i) in the parking lot of the
Project for the exclusive use of Tenant (the "Tenant's Designated Parking
Spaces"). Tenant shall pay Landlord, as additional rent on each Rent Day, an
amount set forth in Section 1.01(i). Such sums may be increased by Landlord from
time to time by the delivery of thirty (30) days prior written notice to Tenant.
Within thirty (30) days of receipt Of Such notification, Tenant may: (i) accept
such increase; or (6) reject such increase for all or any of its exclusive
spaces,in which event Tenant's exclusive parking rights for such spaces shall
terminate. If Tenant accepts such increase or fails to reject such increase
within the thirty (30) day period, then commencing with the next Rent Day
following Landlord's notice, the amount of additional rent payable hereunder
shall be increased accordingly. Notwithstanding anything contained herein to the
contrary, Landlord shall have the right to relocate Tenant's Designated Parking
Spaces within the parking lot of the Project, and Landlord shall have the right
to designate other parking spaces in the parking lot for the exclusive use of
others. Tenant agrees to be bound by parking regulations in effect at the
Project, together with reasonable modifications or additions as may be necessary
during the term of this Lease, as more fully described in Exhibit "B", attached
hereto and made part hereof.
SECTION 17.
NOTICE OR DEMANDS
17.01 All bills, notices, requests, statements, communications, or
demands (collectively, "notices or demands") to or upon Landlord or Tenant
desired or required to be given under any of the provisions hereof must be in
writing. Any such notices or demands from Landlord to Tenant will be deemed to
have been duty and sufficiently given if a copy thereof has been personally
delivered, mailed by United States certified mail, return receipt requested.
postage prepaid, or sent via overnight courier service to Tenant at the address
of the Premises or at such other address as Tenant may have last furnished in
writing to Landlord for such purpose. Any such notices or demands from Tenant to
Landlord will be deemed to have been duly and sufficiently given if delivered to
Landlord in the same manner as provided above at the address set forth at the
heading of this Lease or at the address last furnished by written notice from
Landlord to Tenant. The effective date and the delivery date of such notice or
demand will be deemed to be the time when it is personally delivered, three (3)
days after it is mailed or the day after it is sent via overnight courier as
herein provided.
SECTION 18.
BREACH; INSOLVENCY; RE-ENTRY
18.01 Each of the following shall constitute an Event of Default under
this Lease: (i) Tenant's failure to pay rent or any other sum payable hereunder
when due; (ii) Tenant's failure to perform any of
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the non-monetary terms, conditions or covenants of this Lease to be observed or
performed by Tenant for more than seven (7) days after written notice of such
failure shall have been delivered to Tenant; (iii) if Tenant is named as the
debtor in any bankruptcy proceeding, or similar debtor proceeding, and any Such
proceeding, if involuntary, is not dismissed or set aside within sixty (60) days
from the date thereof; (iv) if Tenant makes an assignment for the benefit of
creditors or petitions for or enters into an arrangement with creditors or if a
receiver of any property of Tenant in or upon the Premises is appointed in any
action, suit or proceeding by or against Tenant, or if Tenant shall admit to any
creditor or to Landlord that it is insolvent, or if the interest of Tenant in
the Premises shall be sold under execution or other legal process; or (v) if
Tenant shall abandon the Premises, vacate the Premises for a period of more than
fifteen (15) consecutive days, or suffer this Lease to be taken under any writ
of execution. Upon the occurrence of any Event of Default, Landlord, in addition
to any other rights and remedies it may have hereunder or by law, shall have the
immediate right of re-entry, and may remove all persons and property from the
Premises and it shall have the right to abandon or otherwise dispose of such
property in any way it may deem fit which is not in contravention of applicable
law. In addition, Landlord shall have the right, but not the obligation, to
store all or some of the property which may have been removed in a public
warehouse or elsewhere at the cost of, and for the account of, Tenant, all
without service of notice or resort to legal process and all without being
deemed guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby.
18.02 In the event Landlord shall elect to re-enter the Premises in
accordance with Paragraph 18.01, or should Landlord take possession of Premises
pursuant to legal proceedings or pursuant to any notice provided by law,
Landlord may either terminate this Lease or may from time to time without
terminating this Lease, make such alterations and repairs as Landlord may deem
necessary in order to relet the Premises, and relet the Premises or any part
thereof for any such term or terms (which may be for a term extended beyond the
term of this Lease) and at such rental or rentals, and upon such other terms and
conditions as Landlord may deem advisable.
18.03 Upon the reletting of the Premises in accordance with Paragraph
18.02, all rentals received by Landlord from such reletting shall be applied in
the following order of priority: (a) to the payment of any additional rent
payable as provided in Section 5 hereof, including interest and late charges;
(b) to the payment of any other indebtedness other than rent due hereunder from
Tenant to Landlord; (c) to the payment of the actual costs and expenses of
obtaining possession, restoring and repairing the Premises and the actual costs
and expenses of reletting, including brokerage and attorneys' fees; and (d) to
the payment of any rent and other sums due and unpaid under this Lease. The
remainder, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If the rental received
from such reletting during any month is less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord
monthly. No such re-entry or taking possession of the Premises or any part
thereof by Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
18.04 Notwithstanding any reletting of the Premises without termination
in accordance with Paragraph 18.02, Landlord may at any time after the
occurrence of any Event of Default, terminate this Lease and, in addition to any
other remedies Landlord may have, Landlord may recover from Tenant all damages
it may incur by reason of Tenant's breach, including, without limitation, the
reasonable cost of recovering and reletting the Premises and reasonable
attorneys' fees incidental thereto and the worth at the time of the termination
of the amount of rent and other charges payable hereunder for the remainder of
the Term, all of which amounts shall be immediately due and payable by Tenant to
Landlord.
18.05 In case suit shall be brought or an attorney otherwise consulted,
for recovery of possession of the leased premises, for the recovery of rent or
any other amount due under the provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of Tenant to be kept
and performed, or any other action against Tenant by Landlord, or because of any
claimed breach of this Lease by Landlord or any other action against Landlord by
Tenant, (and Landlord shall be the prevailing party), Tenant shall pay to
Landlord all expenses incurred therefor, including a reasonable attorneys' fee.
In addition, Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Landlord or Tenant against the other on
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord to Tenant, the use or occupancy of the Premises by
Tenant or any person claiming through or under Tenant, any claim of injury or
damage, and any emergency or other statutory remedies; provided, however, the
foregoing waiver shall not apply to any action for personal injury or property
damage.
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not claim any rights of setoff, or listing such rights of setoff; (iv) to the
amount of monthly rent and other sums due hereunder as of the date of the
certificate, the date to which the rent has been paid in advance, and the amount
of any security deposit or prepaid rent; (v) that Tenant agrees to provide any
mortgagee of Landlord with notice of any default by Landlord hereunder and give
such mortgagee the opportunity to cure such default within sixty (60) days of
such mortgagee's receipt of notice of such default, and (vi) such other matters
as may be reasonably requested by Landlord. Any such certificate may be relied
upon by any prospective purchaser, mortgagee or lessor of the Premises or any
part thereof.
SECTION 22.
QUIET ENJOYMENT
22.01 Landlord agrees that at all times when no Event of Default exists
under this Lease, Tenant's quiet and peaceable enjoyment of the Premises, in
accordance with and subject to the terms of this Lease, will not be disturbed or
interfered with by Landlord or any person claiming by, through, or under
Landlord.
SECTION 23.
HOLDING OVER
23.01 If Tenant remains in possession of the Premises after the
expiration of this Lease without executing a new lease, Landlord shall have the
right to deem Tenant to be occupying the Premises as a tenant from month to
month and the Base Rent for each month will be two hundred percent (200%) of the
greater of: (a) the regular monthly installment of Base Rent payable for the
last month of the Term of this Lease; or (b) the then prevailing market rates of
rent for the Project determined by Landlord in its sole and absolute discretion.
This provision shall not preclude Landlord from terminating the lease or
recovering any and all damages Landlord may incur as a result of Tenant's
failure to timely deliver possession of the Premises to Landlord or from
exercising any other right or remedy It may have hereunder.
SECTION 24.
REMEDIES NOT EXCLUSIVE; WAIVER
24.01 Each and every of the rights, remedies and benefits of Landlord
provided by this Lease are cumulative, and are not exclusive of any other of
said rights, remedies and benefits, or of any other rights, remedies and
benefits allowed by law.
24.02 The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or of any of the rules or regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord. One or more waivers of any
covenant or condition by either party shall not be construed as a waiver of a
further or subsequent breach of the same covenant or condition, and the consent
or approval by Landlord to or of any act by Tenant requiring Landlord's consent
or approval will not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar act by Tenant. No payment by Tenant
or receipt by Landlord of a lesser amount than the monthly rental herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord shall accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease.
SECTION 25.
WAIVER OF SUBROGATION
25.01 Landlord and Tenant hereby release each other and their respective
agents and employees from any and all liability to each other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or damage
to property caused by or resulting from risks insured against under the property
insurance for loss, damage or destruction by fire or other casualty carried by
the parties hereto and which was in force at the time of any such loss or damage
or which would have been so covered had the insurance required hereunder been
maintained; provided, however, that this release shall be applicable only with
respect to loss or damage occurring during such time as the releasor's policies
of insurance contain a clause or endorsement to the effect that any such release
shall
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not adversely affect or impair such policies or prejudice the right of the
releasor to recover thereunder. Landlord and Tenant each agrees that it will
require its property insurance carriers to include in its policy such a clause
or endorsement. However, if such endorsement cannot be obtained, or shall be
obtainable only by the payment of an additional premium charge above that which
is charged by companies carrying such insurance without such waiver of
subrogation, then the party undertaking to obtain such waiver shall notify the
other party of such fact and such other party shall have a period of ten (10)
days after the giving of such notice to agree in writing to pay such additional
premium if such policy is obtainable at additional cost (in the case of Tenant,
pro rate in proportion of Tenant's rentable area to the total rentable area
covered by such insurance); and if such other party does not so agree or the
waiver shall not be obtainable, then the provisions of this Section 25.01 shall
be null and void as to the risks covered by such policy for so long as either
such waiver cannot be obtained or the party in whose favor a waiver of
subrogation is desired shall refuse to pay the additional premium. If the
release of either Landlord or Tenant, as set forth in the second sentence of
this Section 25.01, shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not released,
but no action or rights shall be sought or enforced against such party unless
and until all rights and remedies against the other's insurer are exhausted and
the other party shall be unable to collect such insurance proceeds. The waiver
of subrogation referred to above shall extend to the agents and employees of
each party (including, as to Landlord, the Manager), but only if and to the
extent that such waiver can be obtained without additional charge (unless such
party shall pay such charge). Nothing contained in this Section 25.01 shall be
deemed to relieve either party from any duty imposed elsewhere in this Lease to
repair, restore and rebuild.
SECTION 26.
RIGHT TO SHOW PREMISES
26.01 Landlord may upon reasonable advance notice except in an emergency
show the Premises to prospective tenants and brokers, and may display signs
about the Project and elsewhere advertising the availability of the Premises.
SECTION 27.
INDEMNIFICATION
27.01 Tenant at its expense will defend, indemnify, save and hold
harmless Landlord, its invitees, licensees, servants, agents, employees,
affiliated entities and contractors, from and against any loss, damage, claim of
damage, liability or expense, (including attorney fees) to or for any person or
property, whether based on contract, tort, negligence or otherwise, arising
directly or indirectly out of or in connection with the condition of the
Premises, the occupation, use or misuse thereof by Tenant or any other person,
the acts or omissions of Tenant, its invitees, licensees, servants, agents,
employees or contractors, the failure of Tenant to comply with any provision of
this Lease, or any event on or relating to the Premises, whatever the cause or
any litigation or other proceeding by or against Tenant to which Landlord is
made a party, other than the intentional, willful or malicious act of Landlord
which causes an injury which was either expected or intended by Landlord when it
performed the act in question. The provisions of this Section 27.01 will survive
the expiration or termination of this Lease.
SECTION 28.
DEFINITION OF LANDLORD; LANDLORD'S LIABILITY
28.01 The term "Landlord" as used in this Lease so far as covenants,
agreements, stipulations or obligations on the part of Landlord are concerned is
limited to mean and include only the owner or owners of the Premises at the time
in question, and in the event of any transfer or transfers of the title to such
fee Landlord herein named (and in case of any subsequent transfers or
conveyances the then grantor) will automatically be freed and relieved from and
after the date of such transfer or conveyance of all personal liability for the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
28.02 This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service expressly or implied to
be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reasons of shortages of materials, acts of God, governmental
restrictions, strike or labor troubles or any cause beyond Landlord's reasonable
control including, but not limited to, government preemption in connection with
a national emergency or by reason of any rule, order or regulation of any
department or
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subdivision thereof of any government agency or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency.
SECTION 29.
SECURITY DEPOSIT AND SECURITY INTEREST
29.01 Upon execution hereof, Tenant shall deliver to Landlord cash in the
amount set forth in Paragraph 1.01 (j), above, which Landlord is to retain as
security for the faithful performance of all the covenants, conditions and
agreements of this Lease, but in no event shall Landlord be obligated to apply
the same upon rents or other charges in arrears or upon damages for Tenant's
failure to perform the said covenants, conditions, and agreements; Landlord may
so apply the security at its option, and Landlord's right to the possession of
the Premises for nonpayment of rent or for any other reason shall not in any
event be affected by reason of the fact that Landlord holds this security. The
said sum, if not applied toward the payment of rent in arrears or toward the
payment of damages suffered by Landlord by reason of Tenant's breach of the
covenants, conditions and agreements of this Lease, is to be returned, without
interest thereon, to Tenant when this Lease is terminated, and fully performed
by Tenant, according to these terms, and in no event is the said security to be
returned until Tenant has vacated the Premises and delivered possession to
Landlord.
29.02 In the event that Landlord repossesses the Premises because of
Tenant's default or because of Tenant's failure to carry out the covenants,
conditions and agreements of this Lease, Landlord may apply the said security
upon all damages suffered to the date of said repossession and may retain the
said security to apply upon such damages as may be suffered or shall accrue
thereafter by reason of Tenant's default or breach. Landlord shall not be
obligated to keep the said security as a separate fund, but may mix the said
security with its own funds. In the event Landlord shall use any part of the
Security Deposit, Tenant shall, upon demand, deposit with Landlord the full
amount so used, in order that Landlord shall have the full Security Deposit on
hand at all times during the Term of this Lease. In the event of a sale or lease
of the Building and the transfer of the Security Deposit to the purchaser or
lessee, Landlord shall be released from all liability for the return of the
Security Deposit. Tenant shall have no legal power to assign or encumber the
Security Deposit herein described.
29.03 To secure the faithful performance of all covenants, conditions and
agreements of this Lease to be performed and observed by Tenant and to secure
the payment of all rent and other sums which may be due Landlord under this
Lease. Tenant hereby grants Landlord a security interest in all property,
equipment, fixtures, chattels, inventory and general intangibles and the
proceeds thereof, whether now owned or hereafter acquired, which may at any time
be placed in or upon the Leased Premises or used or useable in connection with
Tenant's business (collectively the "Collateral"). Upon the occurrence of an
Event of Default, Landlord may exercise any of its rights and remedies provided
by the Uniform Commercial Code. The proceeds of any such sale, after payment of
Landlord's expenses, shall be applied to the payment of Tenant's obligations
hereunder and satisfaction of such Event of Default. Enforcement of this
security interest shall be in addition to and shall not waive, alter, limit or
affect in any manner any other remedies available to Landlord. Tenant agrees
that upon Landlord's request it shall execute and deliver all such financing
statements as may be necessary to perfect this security interest. Provided no
Event of Default exists under the terms of this Lease, then within thirty (30)
days after the expiration of the Term, Landlord shall deliver all such
termination statements as Tenant may reasonably request, whereupon the security
interest granted by this Section 29 shall terminate.
SECTION 30.
RULES AND REGULATIONS
30.01 Tenant shall faithfully abide by and observe the rules and
regulations for the Building, a copy of which is attached hereto as Exhibit B
and made a part hereof, and, after notice thereof, all additions thereto and
modifications thereof of uniform applicability from time to time promulgated in
writing by Landlord.
SECTION 31.
SIGNS AND ADVERTISING
31.01 No signs, lighting, lettering, pictures, notices, advertisements,
shades, awnings or decorations will be displayed, used or installed by Tenant
except as approved in writing by Landlord. All such materials displayed in and
about the Premises will be such only as to advertise the business carried on
upon the Premises and Landlord will control the location, character and size
thereof. Tenant shall not cause or permit to be used any advertising materials
or methods which are reasonably objectionable to Landlord or to other tenants of
the Building, including without limiting the generality of the foregoing:
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loudspeakers, mechanical or moving display devices, unusually bright or flashing
lights and similar devices the effect of which may be seen or heard from outside
the Premises. Tenant shall not solicit business, sell or display merchandise, or
distribute hand bills or other advertising matter in the parking area or other
Common Areas.
SECTION 32.
GENERAL
32.01 If, by reason of the occurrence of unavoidable delays due to acts
of God, governmental restrictions, strikes, labor disturbances, shortages of
materials or supplies or for any other cause or event beyond Landlord's
reasonable control, Landlord is unable to furnish or is delayed in furnishing
any service required by Landlord under the provisions of this Lease, or Landlord
is unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
required to be performed or made under this Lease, or is unable to fulfill or is
delayed in fulfilling any of Landlord's other obligations under this Lease, no
such inability or delay shall constitute an actual or constructive eviction in
whole or in part, or, except as otherwise expressly provided herein, entitle
Tenant to any abatement or diminution of rental or other charges due hereunder
or otherwise relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
32.02 This Lease is being entered into and executed in the State of
Michigan, and all questions with respect to the construction of this Agreement
and the rights and liabilities of the parties shall be determined in accordance
with the provisions of the laws of the State of Michigan.
32.03 Many references in this Lease to persons, entities and items have
been generalized for ease of reading. Therefore, references to a single person,
entity or item will also mean more than one person, entity or thing whenever
such usage is appropriate (for example, "Tenant" may include, if appropriate, a
group of persons acting as a single entity, or as tenants-in-common). Similarly,
pronouns of any gender should be considered interchangeable with pronouns of
other genders.
32.04 Section headings appearing in this Lease are for convenience only.
They do not define, limit or construe the contents of any paragraphs or clauses
contained herein.
32.05 Landlord reserves the right to relocate tenant in other space in
the Building upon not less than sixty (60) days prior written notice to Tenant.
Landlord shall pay the cost of moving Tenant to new space. If Tenant does not
wish to accept such relocation, Tenant may object thereto by written notice to
Landlord within ten (10) days after the notice from Landlord. In the event
Tenant fails to object within such ten (10) day period, Tenant shall be deemed
to have accepted the relocation. In the event Tenant so objects, Landlord may
rescind the notice of intention to relocate Tenant or may reaffirm said
intention, in which event Tenant may terminate this Lease by written notice to
Landlord within five (5) days after the affirmation notice from Landlord. In the
event Tenant fails to notify Landlord of its termination within such five (5)
day period, it shall be deemed to have accepted the relocation. If Tenant
terminates this Lease pursuant this paragraph, Tenant must vacate the Premises
within thirty (30) days following Tenant's notice to Landlord of termination.
32.06 The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, successors, administrators and executors provided, however,
that no assignment by, from, through, or under Tenant in violation of any of the
provisions hereof shall vest in the assigns any right, title, or interest
whatsoever. All provisions of this Lease are and will be binding on the
successors and permitted assigns of Landlord and Tenant,
32.07 Time shall be and is of the essence in this Lease and with respect
to the performance of all obligations of Landlord and Tenant hereunder.
32.08 Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option, be furnished from time to
time, in whole or in part, by employees of Landlord or by the managing agent of
the Project or by one or more third persons.
32.09 Landlord shall have the right at any time, and from time to time,
to unilaterally amend the provisions of this Lease if Landlord is advised by
counsel that all or any portion of the monies paid by Tenant to Landlord
hereunder are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code or regulation issued
thereunder, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more money on
account of its occupancy of the Premises under the term of this Lease as so
amended and provided,
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further, that no such amendment or amendments shall result in Tenant receiving
tinder the provisions of this Lease less service than it is entitled to receive,
nor services of a lesser quality.
32.10 Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the Land or the Premises, or with respect to the rents, leases,
expenses of operation or any other matter or thing affecting or related to the
Premises except as expressly set forth herein; and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
32.11 Annually and at any other time, Tenant shall promptly furnish
Landlord financial statements reflecting Tenant's and any Guarantor's current
financial condition. All such financial statements shall be in such form and
contain such detail as Landlord shall reasonably request.
32.12 In case any provision of this Lease or any agreement or instrument
executed in connection herewith shall be invalid, illegal or unenforceable, such
provision shall be enforced to the fullest extent permitted by applicable law,
and the validity, legality and enforceability of the remaining provisions hereof
and thereof shall not in any way be affected or impaired thereby. This Lease
shall not be construed more strictly against one party than against the other,
merely by virtue of the fact that it may have been prepared by counsel for one
of the parties, it being recognized that both Landlord and Tenant have
contributed substantially and materially to the preparation of this Lease.
32.13 This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant. This Lease and the Exhibits attached hereto and
forming a part hereof set forth all of the covenants, agreements, stipulations,
promises, conditions and understandings between Landlord and Tenant concerning
the Premises, and there are no covenants, agreements, stipulations, promises,
conditions or understanding, either oral or written, between them other than set
forth herein or therein.
32.14 Tenant will not record this Lease or a memorandum hereof, and will
not otherwise disclose the terms of this Lease to anyone other than its
attorneys, accountants or employees who need to know of its contents in order to
perform their duties for Tenant. Any other disclosure will be an Event of
Default under the Lease. Tenant agrees that Landlord shall have the right to
publish a "tombstone" or other promotional description of this Lease.
32.15 Except as disclosed in writing to Landlord, Tenant represents and
warrants to Landlord that there are no claims for brokerage commissions or
finder's fees in connection with this Lease as a result of the contracts,
contacts or actions of Tenant, and Tenant agrees to indemnify Landlord and hold
it harmless from all liabilities arising from any such claim arising from an
alleged agreement or act by Tenant (including, without limitation, the cost of
counsel fees in connection therewith); such agreement to survive the termination
of this Lease.
32.16 The matters set forth on Exhibit D, Special Provisions, if any, are
hereby accepted and agreed to between Landlord and Tenant and incorporated
herein by reference.
IN WITNESS WHEREOF Landlord and Tenant have executed this Lease as of the
date and year first above written.
LANDLORD: TENANT:
485 PROPERTIES, LLC, a Delaware ADVANCED SYSTEMS INTERNATIONAL, INC.,
Limited Liability Company a Nevada Corporation
By: By: Xxxxxxx Xxxxxxxxx
---------------------------- ---------------------------------
Printed: Printed: Xxxxxxx Xxxxxxxxx
----------------------- ---------------------------------
Its: Its: Chief Financial Officer
--------------------------- ---------------------------------
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EXHIBIT A
SPACE PLAN
[The plan shown below is for locational purposes only, The Plans which show the
Tenant Improvements to be constructed in the Premises will be issued and
approved by Tenant at a later date.]
[SPACE PLAN]
Approved by Tenant:
ADVANCED SYSTEMS INTERNATIONAL, INC.,
A Nevada Corporation
By: Xxxxxxx Xxxxxxxxx
------------------------------------
Printed: Xxxxxxx Xxxxxxxxx
------------------------------------
Its: Chief Financial Officer
------------------------------------
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EXHIBIT B
RULES AND REGULATIONS OF THE PROJECT
Tenant agrees for itself, its employees, agents, clients, customers,
licensees, invitees and guests, to comply fully with the following rules and
regulations and with such reasonable modifications thereof and additions thereto
as Landlord may make for the Project. All rules and regulations set forth in
this Exhibit B shall be in addition to, and shall in no way limit, the
provisions of the Lease.
1. The Common Areas of the Project shall not be used by Tenant for any
purpose other than those for which they are intended or designated.
2. Landlord has the right to control access to the Project and refuse
admittance to any person or persons without satisfactory identification or a
pass issued by Tenant during hours reasonably determined by Landlord.
3. No person shall disturb other occupants of the Building by making loud
or disturbing noises.
4. Soliciting, peddling and canvassing is prohibited in the Project and
Tenant shall cooperate to prevent the same. No vending machine shall be operated
in the Building by any tenant without the prior written consent of Landlord.
5. All deliveries and removals of furniture, equipment or other bulky
items must take place after notification to Landlord, during such hours and in
such manner as Landlord shall reasonably determine. Tenant shall be responsible
for all damage or injury resulting from the delivery or removal of all articles
into or out of the Project or the Premises. No load shall be placed on the
floors or in elevators in excess of the limits which shall be established by
Landlord.
6. Tenant shall not use any equipment emitting noxious fumes or
offensive odors unless they are properly vented at Tenant's expense.
7. Nothing shall be attached to the interior or exterior of the Building
without the prior written consent of Landlord.
8. No sign or other representation shall be placed on the interior or
exterior of the Building without prior written consent of Landlord.
9. No hazardous articles, bicycles, vehicles or animals of any kind
(other than wheelchairs and seeing-eye dogs) shall be brought into or kept in or
about the Building without the prior consent of Landlord.
10. No marking, painting, drilling, boring, cutting or defacing of the
walls, floors or ceilings of the Building, other than that which is reasonably
necessary for the hanging of art work, diplomas and similar objects which do not
require any material alteration to any wall, floor or ceiling, shall be
permitted without the prior written consent of Landlord.
11. The electrical system and lighting fixtures in the Building shall
not be altered or disturbed in any manner without the prior written consent from
Landlord. Any alterations or additions must be performed by licensed personnel
authorized by Landlord.
12. The toilets and other plumbing fixtures shall not be used for any
purpose other than that for which they are designed. No sweepings, rubbish or
other similar materials or substances shall be deposited therein.
13. Smoking is prohibited in the elevator(s), hallways, corridors,
stairs, lobbies and other common areas of the Project unless clearly designated
to the contrary by Landlord.
14. Tenant shall not waste electricity, water or air-conditioning, and
shall cooperate fully with Landlord to assure the most effective operation of
the Building's heating and air-conditioning. Tenant shall not adjust any
controls other than room thermostats installed for Tenant's use. Tenant shall
not tie, wedge or otherwise fasten open any water faucet or outlet. Tenant
shall keep all corridor doors closed.
15. Tenant assumes full responsibility for protecting the Premises from
theft, burglary, robbery and pilferage. Except during Tenant's normal
business hours, Tenant shall keep all doors to the Premises locked and other
means of entry to the Premises closed and secured.
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16. Tenant or Tenant's employees shall not distribute literature, flyers,
handouts or pamphlets of any kind in any of the common areas of the Project
without the prior written consent of Landlord.
17. Tenant shall not sell or prepare any food or beverages in or from the
Premises without Landlord's prior written consent.
18. Tenant shall not permit the use of any apparatus for sound production
or transmission in such manner that the sound so transmitted or produced shall
be audible or vibrations therefrom shall be detectable beyond the Premises.
19. Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise and air waves which may be transmitted beyond the Premises.
20. No floor covering shall be affixed to any floor in the Premises by
means of glue or other adhesive without Landlord's prior written consent.
21. Tenant shall not use the name of the Building for any purpose other
than that of the business address of Tenant (which it may do, at its own risk,
in the event the name of the Building changes), and shall not use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence.
22. Tenant shall not obstruct sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways in or about the Building,
nor shall Tenant place objects against glass partitions, doors or windows which
would be unsightly from the Building's corridors, or from other areas of the
Building.
23. Tenant shall not make any room-to-room canvass to solicit business
from other tenants of the Building.
24. No additional locks or similar devices shall be attached to any door
and no locks shall be changed without Landlord's prior written consent. Upon
termination of this lease or of Tenant's possession of the Premises, Tenant
shall surrender all keys for door locks and other locks in or about the Premises
and shall make known to Landlord the combination of all locks, safes, cabinets
and vaults which are not removed by Tenant.
25. Tenant shall not install or operate any machinery or mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without Landlord's prior written consent.
26. Tenant shall not employ any person to perform any cleaning,
repairing, janitorial, decorating, painting or other services or work in or
about the Premises, except with the approval of Landlord.
27. Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account the
capacity of the electric wiring in the Building and the Premises and the needs
of other tenants, and shall not use more than such safe capacity. Landlord's
consent to the installation of electric equipment shall not relieve Tenant from
the obligation not to use more electricity than such safe capacity.
28. Tenant shall not overload any floor or elevator and shall not install
any heavy objects, safes, business machines, files or other equipment without
having received Landlord's prior written consent as to size, maximum weight,
routing and locations thereof. Safes, furniture, equipment, machines and other
large or bulky articles shall be brought through the Building and into and out
of the Premises at such times and in such manner as Landlord shall direct
(including the designation of elevator) and at Tenant's sole risk and
responsibility. Prior to Tenant's removal of any such articles from the
Building, Tenant shall obtain written authorization therefore from Landlord.
29. Tenant shall not in any manner deface or damage the Building.
30. Tenant shall not bring into the Building or Premises inflammables
such as gasoline, kerosene, naphtha and benzine, or explosives or any other
articles of intrinsically dangerous nature.
31. Movement into or out of the Building of furniture or office
equipment, or dispatch or receipt by Tenant of any merchandise or materials
other than hand-delivered packages, which requires the use of elevators or
stairways or movement through the Building entrances or lobby, shall be
restricted to the hours designated by Landlord. Tenant assumes all risk of
damage to any and all articles so moved, as well as injury to any person or
property in such movement, and hereby agrees to indemnify Landlord against any
loss resulting therefrom.
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32. Landlord shall not be responsible for any lost or stolen property,
equipment, money or jewelry from the Premises or the public areas of the
Building regardless of whether such loss occurs when the Premises are locked.
33. The Premises shall not be used for housing, lodging, sleeping or for
any immoral or illegal purpose.
34. The work of the janitor or cleaning personnel shall not be
hindered by Tenant after 5:30 p.m. and the windows may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable cost to Landlord in discharging its obligations regarding cleaning
services.
35. Tenant will refer all contractors or installation technicians
rendering any service for Tenant for supervision and approval of Landlord
before performance of any contractual services.
36. Parking Regulations:
(i) Cars WILL NOT park in the designated "Reserved" spaces.
There will be no parking in any area of the Project
other than those areas clearly marked and defined for
parking.
(ii) Parking will be on the basis of first-come,
first-served except for reserved spaces.
(iii) Parkers will be expected to park their cars in an
orderly manner within the marked stalls provided.
(iv) It is recommended that cars be left in a "brakes on,
doors locked" condition at all times.
(v) No car will be allowed to park in any driveway area or
in any manner which will interfere with the normal flow
of traffic.
(vi) Cars parked illegally will be towed at the car owner's
expense.
(vii) Tenant agrees that all its employees have been fully
informed as to the content of these regulations.
(viii) Landlord or Landlord's agents and employees shall not
be liable for and Tenant waives all claims resulting
from any accident or occurrence in and upon the parking
area.
(ix) All automobiles parked in the parking areas shall be in
good condition and repair, utilized for personal
transportation, not commercial in nature and driven and
handled at the risk of the owner.
(x) Automobile owner or owner's agents shall not wash, wax
or otherwise clean or prep the interior/exterior of
vehicles or perform any maintenance whatsoever on
vehicles within the parking area or on any part of the
parking lot servicing the Building.
(xi) In the event that automobile owner's use of the parking
area violates any local, county or state law,
regulation or ordinance, automobile owner's right to
utilize the parking area shall immediately cease. In
addition, in no event shall Tenant permit its
employees, licensees, invitees or other occupants to
use more than Tenant's Proportionate Share of the
existing parking spaces for the Project.
(xii) Parking areas shall not be used to store vehicles or
for parking large commercial or recreational vehicles.
Tenant shall be responsible for the observance of all the foregoing rules and
regulations by Tenant's employees, agents, clients, customers, invitees,
licensees and guests. Landlord shall not be responsible for any violation of the
foregoing rules and regulations by other tenants of the Building and shall have
no obligation to enforce the same against other tenants. Landlord shall have the
right to amend these rules and regulations from time to time in accordance with
the terms of the Lease.
Approved by Tenant:
ADVANCED SYSTEMS INTERNATIONAL INC., a Nevada
Corporation
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Printed: Xxxxxxx Xxxxxxxxx
-------------------------------------
Its: Chief Financial Officer
-------------------------------------
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EXHIBIT C
DAILY JANITORIAL SERVICE
(a) All waste paper baskets and ashtrays are emptied and cleaned.
(b) All furniture and cleared desks are dusted as required.
(c) All carpeting is vacuum cleaned daily as required.
(d) All doors, doorknobs, and glass are wiped down as required.
(e) Walls are spot cleaned as required.
(f) Windows are spot cleaned as required.
(g) All corridors, common areas, common area bathrooms, and elevators
are cleaned daily, which includes washing all tile floors, washing out the sinks
and stalls, vacuum cleaning the hallway carpeting, cleaning out the drinking
fountains and spot cleaning the walls and mirrors where necessary.
Approved by Tenant:
ADVANCED SYSTEMS INTERNATIONAL, INC.,
A Nevada Corporation
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Printed: Xxxxxxx Xxxxxxxxx
-------------------------------
Its: Chief Financial Officer
-----------------------------------
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EXHIBIT D
SPECIAL PROVISIONS
D1 EXCESS TENANT IMPROVEMENT COSTS.
Landlord shall construct the Tenant Improvements up to a cost of seven
thousand twenty-one dollars and twelve cents ($7,021.12) (the "Tenant
Improvement Allowance"). In the event the cost of completing the Tenant
Improvements is less than the Tenant Improvement Allowance, Landlord shall
retain the difference and Tenant shall have no claim for and not be entitled to
receive any such sums. In the event the estimated cost of completing the Tenant
Improvements in accordance with the Plans shall at anytime exceed one hundred
five percent (105%) of the Tenant Improvement Allowance, Tenant shall pay
Landlord, within five (5) days of request for such payment (which request will
come no more than twice monthly), the difference between the estimated cost of
completion and the Tenant Improvement Allowance on a percentage of completion
basis. If the estimated cost of completion of the Tenant Improvements is less
than one hundred five percent (105%) of the Tenant Improvement Allowance, Tenant
shall pay Landlord the difference between the actual cost of completion and the
Tenant Improvement Allowance when the Tenant Improvements are substantially
complete.
D2 ADA COMPLIANCE REPRESENTATION.
Landlord represents and warrants, to the best of its knowledge, but without any
current or independent investigation, that the Common Areas will either comply
in all material respects with the Disabilities Act (subject, however, to
Landlord's right to challenge in court or through administrative proceeding any
regulations or rules implemented with respect to the Disabilities Act and
subject to any non-compliance which is due in whole or in part to the acts or
omissions of Tenant) on the date Landlord notifies Tenant that the Premises are
available for Tenant's occupancy or to the extent of any material non-compliance
and subject to the matters set forth above, Landlord will implement a plan for
future construction or removal of barriers so as to cause the Common Areas to
comply in all material respects with the Disabilities Act.
D3 NON-DISTURBANCE.
In the event of subordination of this Lease, the subordination shall be
conditioned upon the agreement of the mortgagee or lessor that in the event of
foreclosure or the assertion of any other rights under the mortgage or lease,
this Lease and the rights of Tenant hereunder shall continue in effect and shall
not be terminated or disturbed so long as Tenant continues to perform and no
Event of Default exists under this Lease.
Approved by Tenant:
ADVANCED SYSTEMS INTERNATIONAL, INC.,
A Nevada Corporation
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Printed: Xxxxxxx Xxxxxxxxx
-------------------------------
Its: Chief Financial Officer
-----------------------------------
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