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EXHIBIT 10.4
00000 XXXXXXXXXXXX XXXXXXX
XXXXXXXXXX, XXXXXXXX
LEASE
THIS LEASE is made between the Landlord and Tenant hereinafter
identified in Sections 1(b) and 1(c) hereof, respectively, and constitutes a
Lease between the parties of the "Demised Premises" in the "Building," as
defined in Sections 2.2 and 2.1 hereof, respectively, on the terms and
conditions and with and subject to the covenants and agreements of the parties
hereinafter set forth.
W I T N E S S E T H
l. Basic Lease Provisions.
The following are certain basic lease provisions, which are part of, and in
certain instances referred to in subsequent provisions of, this Lease:
(a) Date of this Lease: Xxxxx 0, 0000
(x) Landlord: 29200 NORTHWESTERN DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited partnership
(c) Tenant: UNIVERSAL STANDARD HEALTHCARE OF DELAWARE, INC., a
Delaware corporation
(d) Demised Premises: approximately 15,964 rentable square feet,
Suite 300
(e) Anticipated Commencement Date: April 1, 1999
(f) Expiration Date: March 31, 2004
(g) Basic Rental:
Term Monthly Rental
---- --------------
April 1, 1999 - March 31, 2000 $30,265.08
April 1, 2000 - March 31, 2001 $30,930.25
April 1, 2001 - March 31, 2002 $31,595.42
April 1, 2002 - March 31, 2003 $32,260.58
April 1, 2003 - March 31, 2004 $32,925.75
(h) Tenant's Share: 14.34%
(i) Tenant's Use: General Office
(j) Deposit: -0-
(k) Tenant's Address for Notices: Until the Commencement Date:
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Thereafter the Demised Premises
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(l) Landlord's Address for Notices:
c/o Kojaian Management Corporation
00000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxx & Xxxxx Real Estate Management, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(m) Guarantor: None
(n) Guarantor's Address for Notices: N/A
2. Building and Demised Premises.
2.1 Landlord is the owner of certain land and improvements, more
particularly described on Exhibit "A" hereto, consisting of a four (4) story
office building located at 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
(hereinafter referred to as the "Building"), together with certain interior and
exterior common and public areas and facilities including the surface parking
facilities (hereinafter referred to as the "Common Areas") as may be designated
by Landlord for the use in common by tenants of the Building. Landlord currently
leases from the Michigan Department of Transportation the parcel of land
adjacent to the Development more particularly shown on Exhibit "A-1" hereto
(hereinafter referred to as the "MDOT Parcel"). So long as such lease shall be
in effect, the MDOT Parcel shall be deemed a portion of the surface parking
facilities of the Development for all purposes of this Lease and any future
offsite parking servicing the Building shall likewise be deemed a portion of the
surface parking facilities of the Development for all purposes hereof (the MDOT
Parcel and such future offsite parking facilities are hereinafter referred to as
"Offsite Parking Areas"). The Building and appurtenant Common Areas are
hereinafter referred to as the "Development." Notwithstanding anything herein
contained to the contrary, this Lease does not grant Tenant any rights to
utilize certain designated parking areas.
2.2 Subject to the terms, covenants, agreements and conditions herein
set forth, Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises in the Building (herein referred to as the
"Demised Premises") designated in Section l(d) hereof, as shown on the floor
plan(s) attached hereto as Exhibit "B," together with the nonexclusive right to
use the Common Areas. The square foot area of the Demised Premises, as well as
the Building, shall be computed based upon the BOMA-American National Standard
Z65.l-l980, and shall contain a proportionate share of the Common Areas of the
Building.
2.3 Landlord reserves (a) the right from time to time to make changes,
alterations, additions, improvements, repairs or replacements in or to the
Building (including the Demised Premises) and the fixtures and equipment
thereof, as well as in or to the street entrances, halls, passages, elevators,
escalators and stairways and other parts of the Building, and so long as the
same shall not unreasonably interfere with the Tenant's use of the Demised
Premises, to erect, maintain, and use pipes, ducts and conduits in and through
the Demised Premises, all as Landlord may reasonably deem necessary or
desirable, (b) the right to eliminate, substitute and/or rearrange the Common
Areas (which may theretofore have been so designated) as Landlord deems
appropriate in its discretion, and (c) the right from time to time to construct
additional stories onto the Building. Tenant's nonexclusive right to utilize the
Common Areas shall be in common with Landlord, other tenants and occupants of
the Building and others to whom Landlord grants such rights from time to time.
In no event shall Tenant, its employees, customers, invitees and/or guests
utilize in excess of Tenant's allocable portion of the parking spaces servicing
the Building.
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3. Term.
3.1 The Term shall commence on that date (hereinafter referred to as
the "Commencement Date") being the later to occur of the "Anticipated
Commencement Date" set forth in Section 1(e) hereof and the date Landlord has
substantially completed the improvements to be constructed or installed by
Landlord pursuant to the provisions of Exhibit "C" hereto, as provided in
Section 4 hereof, and, unless sooner terminated as hereinafter provided, shall
end on the "Expiration Date" set forth in Section 1(f) hereof; provided,
however, that if Tenant, with Landlord's prior written approval, shall take
occupancy of the Demised Premises for any purpose whatsoever prior to the
Commencement Date, as defined above, the Commencement Date shall be deemed to
have occurred on the earlier date Tenant takes such occupancy.
3.2 If Landlord, for any reason whatsoever, cannot deliver possession
of the Demised Premises to Tenant on the Anticipated Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, and the Expiration Date shall not be
affected. Notwithstanding the foregoing, if possession of the Demised Premises
has not been delivered to Tenant within one (1) year following the Anticipated
Commencement Date, either Landlord or Tenant, at its option, at any time within
thirty (30) days thereafter, but prior to the delivery of possession, may
terminate this Lease by and upon written notice to the other, and Landlord and
Tenant shall thereupon be released from all obligations under this Lease except
for any financial obligations of Tenant then due and payable, if any, pursuant
to Section 4 hereof or Exhibit "C" hereto.
4. Completion of Improvements. See Attached Rider.
(c) In the event Tenant desires to have improvements installed in the
Demised Premises in addition to or in lieu of the improvements provided for in
the attached rider, Tenant shall so advise Landlord and submit to Landlord at
least thirty (30) days prior to the Anticipated Commencement Date, complete
plans and specifications for such improvements. Tenant shall immediately cause
such plans and specifications to be revised in order to comply with Landlord's
comments to such plans and specifications. Upon approval of such plans and
specifications by Landlord, Landlord shall advise Tenant of the cost of
constructing and installing such improvements, and upon approval of such costs
Landlord will commence construction and installation of such improvements;
provided, however, that Tenant may revise such plans in order to reduce such
costs, subject to Landlord's approval. Tenant shall be responsible for all
costs
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resulting from such additional work, including architectural and engineering
charges. Notwithstanding anything contained to the contrary, if Tenant shall
request any changes or modification to the plans and specifications after the
approval thereof by Landlord, or if Tenant does not timely submit such plans and
specifications or revisions thereof, or if such plans and specifications require
materials which are not readily available or require long lead time, or if the
completion of such construction and installation is delayed for any other reason
attributable to Tenant including its failure to pay for the same as provided in
Paragraph 4(d) hereof, the Commencement Date shall not be delayed or postponed
as a result thereof and the Commencement Date shall be the date which Landlord
determines that the Demised Premises would have been ready but for such delays,
even if the Demised Premises is not completed on the Commencement Date.
(d) The cost of all improvements to the Demised Premises over
and above the Renovation Allowance shall be paid by Tenant as follows: (i)
one-half (1/2) of such amount within ten (10) days after the approval of
Tenant's plans and specifications by Landlord and the submission of the costs to
Tenant, and (iii) the balance of such amount prior to occupancy of the Demised
Premises by Tenant. In no event shall Landlord be required to commence or
continue such work if Tenant defaults in its obligation to make the payments
herein required.
(e) The Demised Premises shall be deemed completed and
possession delivered to Tenant when Landlord has substantially completed its
improvements subject only to the completion of details of construction,
decorations and mechanical adjustments which do not materially interfere with
Tenant's use of the Demised Premises, and Tenant shall accept the same upon
notice from Landlord that such improvements have been so completed in accordance
with the plans and specifications. If any dispute shall arise as to whether
Landlord has completed its improvements, a certificate furnished by Landlord's
architect certifying the date of such completion shall be conclusive and binding
of that fact and date upon Landlord and Tenant.
5. Rental.
5.1 Tenant shall pay to Landlord as rental for the Demised
Premises the Basic Rental set forth in Section 1(g) hereof, which shall be
payable in equal monthly installments in advance, together with the rentals
provided for in Section 5.3 hereof.
5.2 The following terms shall have the following meanings.
(a) The term "Expenses" shall mean the actual cost incurred by
Landlord with respect to the operation, maintenance, repair and replacement and
administration of the Development, including, without limitation or duplication,
(l) the costs incurred for air conditioning: mechanical ventilation; heating;
cleaning (including janitorial services); rubbish removal; snow removal; general
landscaping and maintenance; lease payments for any leases relating to OffSite
Parking Areas; window washing, elevators, escalators, xxxxxx and matron
services, electric current for the Common Areas; management fees; protection and
security services; repairs, replacement, and maintenance; fire, extended
coverage, boiler, sprinkler, apparatus, public liability and property damage
insurance (including loss of rental income insurance); supplies; wages,
salaries, disability benefits, pensions, hospitalization, retirement plans and
group insurance respecting service and maintenance employees and management
staff; accounting and administrative staff; uniforms and working clothes for
such employees and the cleaning thereof; expenses imposed pursuant to any
collective bargaining agreement with respect to such employees; payroll, social
security, unemployment and other similar taxes with respect to such employees
and staff; sales, use and other similar taxes; Landlord's Michigan Single
Business Tax, water rates and sewer charges and personal property taxes;
advertising, public relations and promotions; depreciation of movable equipment
and personal property, which is, or should be, capitalized on the books of
Landlord, and the cost of movable equipment and personal property, which need
not be so capitalized, as well as the cost of maintaining all such movable
equipment, and any other costs, charges and expenses which, under generally
accepted accounting principles and practices, would be regarded as maintenance
and operating expenses,
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and (2) the cost of any capital improvements made to the Development by Landlord
after the Commencement Date that are intended to reduce other Expenses, or made
to the Development by Landlord after the date of this Lease that are required
under any governmental law or regulation that was not applicable to the
Development at the time it was constructed, such cost to be amortized over such
reasonable period as Landlord shall determine, together with interest on the
unamortized balance at the rate of two percent (2%) in excess of the then
current "prime rate" of NBD Bank (as defined in Section 5.5 hereof) or such
higher rate as may have been paid by Landlord on funds borrowed for the purpose
of constructing such capital improvements. Expenses shall not include "Taxes,"
as defined in Section 5.2(d) hereof; depreciation on the Building other than
depreciation on standard exterior window coverings provided by Landlord and
carpeting in Common Areas and other than as set forth above; costs of services
or repairs, replacements and maintenance which are paid for by proceeds of
insurance, by other tenants (in a manner other than as provided in Section 5.3
hereof), or third parties; or tenant improvements, real estate brokers'
commissions, interest and capital items other than replacements and those
referred to in clause (2) above.
The Expenses shall be adjusted to equal Landlord's reasonable
estimate of Expenses had the total Building been occupied and had the total
Building been furnished all services.
(b) The term "Base Expenses" shall mean the Expenses for the
1999 calendar year.
(c) The term "Additional Expenses" shall mean the total dollar
increases, if any, over the Base Expenses paid or incurred by Landlord in the
respective calendar year.
(d) The term "Taxes" shall mean the amount incurred by
Landlord of all ad valorem real property taxes and assessments, special or
otherwise, levied upon or with respect to the Development, or the rent and
additional charges payable hereunder, imposed by any taxing authority having
jurisdiction. Taxes shall also include all taxes, levies and charges which may
be assessed, levied or imposed in replacement of, or in addition to, all or any
part of ad valorem real property taxes as revenue sources, and which in whole or
in part are measured or calculated by or based upon the Development, the
freehold and/or leasehold estate of Landlord or Tenant, or the rent and other
charges payable hereunder. Taxes shall include any expenses incurred by Landlord
in determining or attempting to obtain a reduction of Taxes.
(e) The term "Base Taxes" shall mean the 1999 real estate tax
rate applicable to the Development multiplied by the assessed valuation of the
Development determined by the City of Southfield as of December 31, 1999, or as
finally determined in the event Landlord appeals such assessment.
(f) The term "Additional Taxes" shall mean the total dollar
increase, if any, over the Base Taxes paid or incurred by Landlord in the
respective calendar year.
(g) The term "Tenant's Share" shall mean the percentage set
forth in Section 1(h) hereof. Tenant's Share has been computed on the basis of
the square foot area of the Demised Premises divided by the total leasable
square foot area of the Building (including the Demised Premises). In the event
the square foot area of the Demised Premises or the leasable square foot area of
the Building shall be determined to differ from that utilized in computing
Tenant's Share, Tenant's Share shall be adjusted accordingly.
5.3 (a) Tenant shall pay to Landlord as additional rental Tenant's
Share of Additional Expenses and Additional Taxes in the manner and at the times
herein provided.
(b) With respect to Additional Expenses and Additional Taxes,
prior to the Commencement Date and prior to the beginning of each calendar year
thereafter, or as soon thereafter as practicable, Landlord shall give Tenant
notice of Landlord's estimate of Tenant's Share of Additional Expenses and
Additional Taxes for the ensuing calendar year. On or before the first day of
each month during the ensuing calendar year, Tenant shall pay to Landlord
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one-twelfth (1/12th) of such estimated amounts, provided that until such notice
is given with respect to the ensuing calendar year, Tenant shall continue to pay
the amount currently payable pursuant hereto until after the month such notice
is given. If at any time or times (including, without limitation, upon Tenant
taking occupancy of the Demised Premises) it appears to Landlord that Tenant's
Share of Additional Expenses or Tenant's Share of Additional Taxes for the then
current calendar year will vary from Landlord's estimate by more than five
percent (5%), Landlord may, by notice to Tenant, revise its estimate for such
year and subsequent payments by Tenant for such year shall be based upon such
revised estimate.
Within ninety (90) days after the close of each calendar year,
or as soon after such ninety (90) day period as practicable, Landlord shall
deliver to Tenant a statement prepared by Landlord of Tenant's Share of
Additional Expenses and Additional Taxes, respectively, for such calendar year.
If on the basis of either of such statements, Tenant owes an amount that is less
than the estimated payments for such calendar year previously made by Tenant,
Landlord shall credit such excess amount against the next payment(s) due from
Tenant to Landlord of Additional Expenses or Additional Taxes, as the case may
be or promptly refund such excess to Tenant with respect to the last year of the
term. If on the basis of such statement, Tenant owes an amount that is more than
the estimated payments for such calendar year previously made by Tenant, Tenant
shall pay the deficiency to Landlord within seven (7) days after delivery of
such statement. See Attached Rider
(c) If this Lease shall commence on a day other than the first
day of a calendar year or terminate on a day other than the last day of a
calendar year, Tenant's Share of Additional Expenses and/or Additional Taxes
that is applicable to the calendar year in which such commencement or
termination shall occur shall be prorated on the basis of the number of calendar
days within such year as are within the Term.
5.4 The installment of the Basic Rental provided for in Section 5.1
hereof for the first full month of the Term shall be paid by Tenant to Landlord
upon execution of this Lease. Basic Rental shall be paid to Landlord on or
before the first day of each and every successive calendar month in advance
after the first month during the Term. In the event the Commencement Date is
other than the first day of a calendar month, or the Expiration Date is other
than the last day of the calendar month, then the monthly rental for the first
and last fractional months of the Term shall be appropriately prorated.
5.5 Tenant shall pay as additional rental any money and charges
required to be paid by Tenant pursuant to the terms of this Lease, whether or
not the same may be designated "additional rent."
5.6 Except as above provided, rental and additional rental shall be
paid to Landlord without notice or demand and without deduction or offset, in
lawful money of the United States of America at Landlord's address for notices
hereunder or to such other person or at such other place as Landlord may from
time to time designate in writing. All amounts payable by Tenant to Landlord
hereunder, if not paid when due, shall be subject to an administrative late
charge of five percent (5%) of the amount due and, in addition, shall bear
interest from the due date until paid at the rate equal to two percent (2%) in
excess of the then current "prime rate" of NBD Bank, but not in excess of the
legal rate. Such prime rate shall be the rate announced by such Bank as its
"prime rate"; if no such prime rate is announced, the prime rate shall be deemed
to be fifteen percent (15%).
6. Other Taxes Payable by Tenant.
In addition to the monthly rental and other charges to be paid by
Tenant hereunder, Tenant shall reimburse Landlord upon demand for any and all
taxes payable by Landlord (other than net income taxes and taxes included within
Taxes) whether or not now customary or within the contemplation of the parties
hereto: (a) upon, measured by or reasonably attributable to the cost or value of
Tenant's equipment, furniture, fixtures and other personal property located in
the Demised Premises or by the cost or value of any leasehold improvements made
in or to the Demised Premises by or for Tenant, other than building standard
tenant improvements made by
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Landlord, regardless of whether title to such improvements shall be in Tenant or
Landlord; (b) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Demised Premises or any portion thereof; and (c) upon this transaction or any
document to which Tenant is a party creating or transferring an interest or an
estate in the Demised Premises. In the event that it shall not be lawful for
Tenant so to reimburse Landlord, the monthly rental payable to Landlord under
this Lease shall be revised to net to Landlord the same rental after imposition
of any such tax upon Landlord as would have been payable to Landlord prior to
the imposition of any such tax.
7. Tenant's Use.
7.1 The Premises shall be used only for the purposes of "Tenant's Use"
as set forth in Section 1(i) hereof, and for no other purpose or purposes
whatsoever.
7.2 Tenant shall not do or permit to be done in or about the Demised
Premises, nor bring or keep or permit to be brought or kept therein, anything
which is prohibited by or will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated, or which is prohibited by the standard form of fire
insurance policy, or will in any way increase the existing rate of or affect any
fire or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering the Building or any part thereof
or any of its contents, or adversely affect or interfere with any services
required to be furnished by Landlord to Tenant, or to any other tenants or
occupants of the Building, or with the proper and economical rendition of any
such service. Tenant shall not do or permit anything to be done in or about the
Demised Premises which will in any way obstruct or interfere with the rights of
other tenants of the Building, or injure or annoy them, or use or allow the
Demised Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about
the Demised Premises or commit or suffer to be committed any waste in, on or
about the Demised Premises. If anything done, omitted to be done or suffered to
be done by Tenant, or kept or suffered by Tenant to be kept in, upon or about
the Demised Premises shall cause the rate of fire or other insurance on the
Building in companies acceptable to Landlord to be increased beyond the minimum
rate from time to time applicable to the Building, Tenant shall pay the amount
of any such increases. Tenant shall not cause or permit the use, generation,
storage or disposal in or about the Demised Premises or the Building of any
substances, materials or wastes subject to regulation under federal, state or
local laws from time to time in effect concerning hazardous, toxic or
radioactive materials, unless Tenant shall have received Landlord's prior
written consent, which Landlord may withhold or at any time revoke in its sole
discretion.
8. Services.
8.1 Landlord shall maintain the Common Areas including any lobbies,
stairs, elevators, corridors and restrooms, together with the windows and
exterior walls, roofs, foundations and structure itself of the Building and the
mechanical, plumbing and electrical equipment servicing the Building, in good
order and condition as reasonably determined by Landlord and the cost shall be
included in Expenses, except for the repairs due to fire and other casualties
(to the extent the cost of such repairs are covered by insurance proceeds) and
for the repair of damages occasioned by the acts or omissions of Tenant, which
Tenant shall pay to Landlord in full.
8.2 Landlord will arrange for the furnishing of electricity to the
Demised Premises, and Landlord shall elect either: (i) to charge Tenant for
electricity as determined by metering at the applicable secondary rates filed by
Landlord with the proper regulating authorities in effect from time to time
covering such services, but not more than the secondary rates which would be
charged to Tenant by the public utility company; or (ii) to charge Tenant for
electricity based upon engineering surveys of the Demised Premises and the use
by Tenant thereof, including, at the option of Landlord, periodic spot check
demand and/or consumption metering by Landlord. Such charge to Tenant for
electricity shall be payable in monthly installments together with Basic Rental
in the amount invoiced to Tenant. Engineering surveys shall be performed by
independent licensed professional electrical engineering consultants selected by
Landlord. From time to time during the Term, Landlord may inspect the Demised
Premises in order to evaluate Tenant's
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kilowatt hour electric consumption and demand, and if as a result of such
inspection, the amount charged to Tenant shall change because of changes in
demand and/or consumption, or in the cost of electricity to Landlord, Landlord
shall notify Tenant and commencing with the first day of the next calendar
month, Tenant shall pay such revised charge in monthly installments.
Notwithstanding anything herein contained to the contrary, Landlord reserves the
right to terminate the furnishing of electricity at any time upon sixty (60)
days' notice to Tenant, in which event Tenant shall make application directly to
the utility company servicing the Building for Tenant's separate supply of
electric current, and Landlord shall permit its wires and conduits to be used
for such purposes, to the extent available and capable of being used safely.
8.3 Landlord shall furnish the Demised Premises with (a) heat,
ventilation and air conditioning to the extent required for the occupancy of the
Demised Premises to standards of comfort and during such hours in each case as
provided to first class office buildings in Southfield, Michigan as reasonably
determined by Landlord for the Building (which hours, shall be from 8:00 a.m. to
6:00 p.m. on weekdays and from 8:00 am. to 12:00 pm. on Saturdays; in each case
except holidays), or as may be prescribed by any applicable policies or
regulations adopted by any utility or governmental agency, (b) elevator service,
and (c) janitorial service in accordance with Exhibit "D" hereto only to the
areas of the Demised Premises used for office purposes during the times and in
the manner that services are furnished in comparable first class office
buildings in the area, provided that Landlord shall not provide janitorial
services to any portion of the Demised Premises used for other than office
purposes such as preparing, dispensing or consumption of food or beverages or as
an exhibition area or for storage, shipping room, washroom or similar purposes,
or as private restrooms or a shop or for the operation of computer data
processing, reproduction, duplicating or similar equipment. In addition,
Landlord shall replace all burned out fluorescent (only) tubes, ballasts and
starters, and Tenant shall be billed therefor. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting from,
nor shall the rental herein reserved be abated by reason of: (1) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services, (2) failure to furnish or delay in
furnishing any such services when such failure or delay is caused by accident or
any condition beyond the reasonable control of Landlord or by the making of
necessary repairs or improvements to the Demised Premises or to the Building, or
(3) any limitation, curtailment, rationing or restriction on use of water,
electricity, steam, gas or any other form of energy serving the Demised Premises
or the Building. Landlord shall use reasonable efforts diligently to remedy any
interruption in the furnishing of such services. Notwithstanding the provisions
of this Section 8.3, Landlord shall not be required to provide extraordinary
ventilation and air conditioning to the Demised Premises if Tenant shall utilize
in the Demised Premises heat generating equipment or lighting other than
building standard lights which affect the temperature otherwise maintained by
the air conditioning system or if the Demised Premises are occupied by a number
of persons in excess of the design criteria of the air conditioning system.
8.4 Tenant shall pay as additional rent the cost of providing all
heating, ventilating and air conditioning, including all costs associated with
the installation of meters for measuring the same, to the Demised Premises in
excess of that required for normal office use or during hours requested by
Tenant when heating, ventilating and air conditioning is not otherwise furnished
by Landlord. Tenant shall notify Landlord in writing at least twenty-four (24)
hours prior to the time it requires heating, ventilating and air conditioning
during periods the same are not otherwise furnished by Landlord. Notwithstanding
the foregoing, Landlord shall only be required to provide heating, ventilating
and air conditioning to the extent available utilizing the existing equipment
servicing the Building.
9. Alterations and Repairs.
9.1 Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Demised Premises or any part thereof, or
attach any fixtures or equipment thereto, without first obtaining Landlord's
consent. All such alterations, additions and improvements shall be performed by
contractors and subject to conditions approved by Landlord. If any such
alterations, additions or improvements to the Demised Premises consented to by
Landlord shall be made by Landlord for Tenant's account, Tenant shall reimburse
Landlord for
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the cost thereof (including a reasonable charge for Landlord's overhead related
thereto) as the work proceeds within five (5) days after receipt of statements
therefor. All such alterations, additions and improvements shall become the
property of Landlord upon installation and/or completion and shall remain on the
Demised Premises upon the expiration or termination of this Lease without
compensation to Tenant unless Landlord elects by notice to Tenant to have Tenant
remove the same, in which event Tenant shall promptly restore the Demised
Premises to its condition prior to the installation of such alterations,
additions and improvements. See Attached Rider
9.2 Subject to the provisions of Section 8.1 hereof, Tenant shall keep
the Demised Premises and every part thereof in good condition and repair, Tenant
hereby waiving all rights to make repairs at the expense of Landlord or, in lieu
thereof, to vacate the Demised Premises as provided by any law, statute or
otherwise now or hereafter in effect. All repairs made by or on behalf of Tenant
shall be made and performed in such manner as Landlord may designate, by
contractors or mechanics approved by Landlord and in accordance with the rules
relating thereto annexed to this Lease as Exhibit "E" and all applicable laws
and regulations of governmental authorities having jurisdiction. Tenant shall,
subject to the provisions of Section 9.1 hereof, at the end of the term hereof,
surrender to Landlord the Demised Premises in the same condition as when
received, ordinary wear and tear and damage by fire, earthquake, act of God or
the elements excepted. Landlord has no obligation and has made no promise to
alter, remodel, improve, repair, decorate or paint the Demised Premises or any
part thereof and no representations respecting the condition of the Demised
Premises or the Building have been made by Landlord to Tenant except as
expressly set forth herein.
10. Liens.
Any mechanic's lien filed against the Demised Premises or the Building
for work claimed to have been done or materials claimed to have been furnished
to Tenant shall be discharged by Tenant within thirty (30) days thereafter. For
the purposes hereof, the bonding of such lien by a reputable casualty or
insurance company reasonably satisfactory to Landlord shall be deemed the
equivalent of a discharge of any such lien. Should any action, suit, or
proceeding be brought upon any such lien for the enforcement or foreclosure of
the same, Tenant shall defend Landlord therein, by counsel satisfactory to
Landlord, and pay any damages and satisfy and discharge any judgment entered
therein against Landlord.
11. Destruction or Damage.
11.1 In the event the Demised Premises or any portion of the Building
necessary for Tenant's occupancy are damaged by fire, earthquake, act of God,
the elements or other casualty in each case insured against by Landlord's fire
and extended coverage insurance policy covering the Building and, if Landlord's
reasonable estimate of the cost of making such repairs does not exceed the
proceeds of such insurance by more than One Hundred Thousand Dollars ($100,000),
Landlord shall forthwith repair the same if such repairs can, in Landlord's
opinion, be completed within ninety (90) days after commencement of such
repairs. This Lease shall remain in full force and effect except that an
abatement of Basic Rental shall be allowed Tenant for such part of the Demised
Premises as shall be rendered unusable by Tenant in the conduct of its business
during the time such part is so unusable to the extent Landlord is reimbursed
therefor by loss of rental income or other insurance. If such repairs cannot, in
Landlord's opinion, be made within ninety (90) days, or if such damage or
destruction is not insured against by Landlord's fire and extended coverage
insurance policy covering the Building, or if Landlord's reasonable estimate of
the cost of making such repairs exceeds the proceeds of such insurance by more
than One Hundred Thousand Dollars ($100,000), Landlord may elect, upon notice to
Tenant within thirty (30) days after the date of such fire or other casualty, to
repair or restore such damage, in which event this Lease shall continue in full
force and effect, but the Basic Rental shall be partially abated as provided in
this Section 11.1. If Landlord elects not to make such repairs, this Lease shall
terminate as of the date of such election by Landlord.
11.2 A total destruction of the Building shall automatically terminate
this Lease.
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11.3 If the Demised Premises are to be repaired under this Article 11,
Landlord shall repair at its cost any injury or damage to the Building itself
and building standard tenant improvements in the Demised Premises to be
constructed or installed by Landlord as set forth in Exhibit "C." Tenant shall
perform and pay the cost of repairing any other improvement in the Demised
Premises and shall be responsible for carrying such casualty insurance as it
deems appropriate with respect to such other tenant improvements.
12. Subrogation.
Landlord and Tenant shall each obtain from their respective insurers
under all policies of fire insurance maintained by either of them at any time
during the Term insuring or covering the Building or any portion thereof or
operations therein, a waiver of all rights of subrogation which the insurer of
one party might have against the other party, and Landlord and Tenant shall each
indemnify the other against any loss or expense, including reasonable attorneys'
fees, resulting from the failure to obtain such waiver and, so long as such
waiver is outstanding, each party waives, to the extent of the proceeds received
under such policy, any right of recovery against the other party for any loss
covered by the policy containing such waiver; provided, however, that if at any
time their respective insurers shall refuse to permit waivers of subrogation,
Landlord or Tenant, in each instance, may revoke said waiver of subrogation
effective thirty (30) days from the date of such notice, unless within such
thirty (30) day period, the other is able to secure and furnish (without
additional expense) equivalent insurance with such waivers with other companies
satisfactory to the other party.
13. Eminent Domain.
If all or any part of the Demised Premises shall be taken as a result
of the exercise of the power of eminent domain, this Lease shall terminate as to
the part so taken as of the date of taking, and, in the case of partial taking,
either Landlord or Tenant shall have the right to terminate this Lease as to the
balance of the Demised Premises by notice to the other within thirty (30) days
after such date; provided, however, that a condition to the exercise by Tenant
of such right to terminate shall be that the portion of the Demised Premises
taken shall be of such extent and nature as substantially to handicap, impede or
impair Tenant's use of the balance of the Demised Premises. In the event of any
taking, Landlord shall be entitled to any and all compensation, damages, income,
rent, awards, or any interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease or otherwise. In the event of a
partial taking of the Demised Premises which does not result in a termination of
this Lease, the rental thereafter to be paid shall be reduced on a per square
foot basis.
14. Landlord's Insurance.
Landlord shall during the Term provide and keep in force or cause to be
provided or kept in force:
(a) Comprehensive general liability insurance with respect to
Landlord's operation of the Development for bodily injury or death and damage to
property of others;
(b) Fire insurance (including standard extended coverage endorsement
perils and leakage from fire protective devices) in respect of the Building,
excluding Tenant's trade fixtures, equipment and personal property; and
(c) Loss of rental income insurance;
together with such other insurance as Landlord, in its sole discretion, elects
to obtain. Insurance effected by Landlord shall be in amounts which Landlord
shall from time to time determine reasonable and sufficient, shall be subject to
such deductibles and exclusions which Landlord may deem reasonable and shall
otherwise be on such terms and conditions as Landlord shall from time to time
determine reasonable and sufficient. Tenant acknowledges that Landlord's loss of
rental income insurance may provide that (i) payments thereunder by the insurer
will be limited to a
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period of one year following the date of any destruction and damage, and (ii) no
insurance proceeds will be payable thereunder in the case of destruction or
damage caused by any occurrence other than fire and other risks included in the
standard extended coverage endorsement perils of a fire insurance policy.
15. Indemnification and Tenant's Insurance.
15.1 Tenant hereby waives all claims against Landlord for damage to any
property or injury or death of any person in, upon or about the Demised Premises
arising at any time and from any cause whatsoever, and Tenant shall hold
Landlord harmless from any damage to any property or injury to or death of any
person arising in, on or about the Demised Premises. The foregoing indemnity
obligation of Tenant shall include reasonable attorneys' fees, investigation
costs and all other reasonable costs and expenses incurred by Landlord from the
first notice that any claim or demand is to be made or may be made. The
provisions of this Section 15.1 shall survive the termination of this Lease with
respect to any damage, injury or death occurring prior to such termination.
15.2 Tenant shall procure and keep in effect comprehensive general
liability insurance, including contractual liability, with minimum limits of
liability of One Million Dollars ($1,000,000) per occurrence for bodily injury
or death, and Two Hundred Fifty Thousand Dollars ($250,000) per occurrence for
property damage. From time to time, Tenant shall increase the limits of such
policies to such higher limits as Landlord shall reasonably require. Such
insurance shall name Landlord and Landlord's property manager (currently Xxxxx &
Xxxxx Real Estate Management, Inc.) as additional named insureds, shall
specifically include the liability assumed hereunder by Tenant, and shall
provide that it is primary insurance and not excess over or contributory with
any other valid, existing and applicable insurance in force for or on behalf of
Landlord, and shall provide that Landlord shall receive thirty (30) days' notice
from the insurer prior to any cancellation or change of coverage.
15.3 Tenant shall procure and keep in effect fire insurance (including
standard extended coverage endorsement perils and leakage from fire protective
devices) for the full replacement cost of Tenant's trade fixtures, equipment,
personal property and leasehold improvements.
15.4 Tenant shall deliver policies of the insurance required pursuant
to Sections 15.2 and 15.3 hereof or certificates thereof to Landlord on or
before the Commencement Date, and thereafter before the expiration dates of
expiring policies.
16. Compliance with Legal Requirements.
Tenant shall promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted, with any occupancy
certificate or directive issued pursuant to any law by any public officer or
officers, as well as the provisions of all recorded documents affecting the
Demised Premises, insofar as any thereof relate to or affect the condition, use
or occupancy of the Demised Premises, excluding requirements of structural
changes not related to or affected by improvements made by or for Tenant or not
necessitated by Tenant's act.
17. Assignment and Subletting.
17.1 Except as expressly permitted pursuant to this Article 17, Tenant
shall not, without the prior written consent of Landlord, assign, encumber or
hypothecate this Lease or any interest herein or sublet the Demised Premises or
any part thereof, or permit the use of the Demised Premises by any party other
than Tenant. This Lease shall not, nor shall any interest herein, be assignable
as to the interest of Tenant by operation of law without the consent of
Landlord. Sales aggregating fifty percent (50%) or more of the capital or voting
stock of Tenant (if Tenant is a nonpublic corporation) or transfers aggregating
fifty percent (50%) or more of Tenant's partnership interest (if Tenant is a
partnership) shall be deemed to be an assignment of this Lease.
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17.2 If at any time or from time to time during the term of this Lease,
Tenant desires to sublet all or any part of the Demised Premises or to assign
this Lease, Tenant shall give notice to Landlord setting forth the proposed
subtenant or assignee, the terms of the proposed subletting and the space so
proposed to be sublet or the terms of the proposed assignment, as the case may
be. Landlord shall have the option, exercisable by notice given to Tenant within
twenty (20) days after Tenant's notice is given, (a) if Tenant's request relates
to a subletting, either to sublet from Tenant such space at the rental and other
terms set forth in Tenant's notice, or, if the proposed subletting is for the
entire Demised Premises for the balance of the Term, to terminate this Lease, or
(b) if Tenant's request relates to an assignment, either to have this Lease
assigned to Landlord or to terminate this Lease. If Landlord does not exercise
such option, Tenant shall be free for a period of one hundred eighty (180) days
thereafter to sublet such space or to assign this Lease to such third party if
Landlord shall consent thereto, provided that the sublease or assignment shall
be on the same terms set forth in the notice given to Landlord and that the
rental to such subtenant or assignee shall not be less than the then market rate
for such premises.
In the event Tenant shall so sublet a portion of the Demised Premises,
or assign this Lease, one-half (1/2) of the sums or other economic consideration
received by Tenant as a result of such subletting or assignment whether
denominated rentals or otherwise, under the sublease or assignment, which exceed
in the aggregate, the total sums which Tenant is obligated to pay Landlord under
this Lease (prorated to reflect obligations allocable to that portion of the
Demised Premises subject to such sublease) shall be payable to Landlord as
additional rental under this Lease without affecting or reducing any other
obligation of Tenant hereunder.
17.3 Notwithstanding the provisions of Sections 17.1 and 17.2 hereof,
Tenant may assign this Lease or sublet the Demised Premises or any portion
thereof, without Landlord's consent and without extending any option to
Landlord, to any corporation which controls, is controlled by or is under common
control with Tenant, or to any corporation resulting from the merger or
consolidation with Tenant, or to any person or entity which acquires all the
assets of Tenant as a going concern of the business that is being conducted on
the Demised Premises, provided that said assignee assumes, in full, the
obligations of Tenant under this Lease.
17.4 Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation or alter the primary liability of
Tenant to pay the rental and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of rental by Landlord from any other person
shall not be deemed to be a waiver by Landlord or any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such assignee or successor. Landlord may consent to subsequent
assignments or subletting of this Lease or amendments or modifications to this
Lease with assignees of Tenant, without notifying Tenant, or any successor of
Tenant, and without obtaining its or their consent thereto and such action shall
not relieve Tenant of liability under this Lease.
17.5 In the event Tenant shall assign this Lease or sublet the Demised
Premises or request the consent of Landlord to any assignment or subletting or
if Tenant shall request the consent of Landlord for any act that Tenant proposes
to do, then Tenant shall pay Landlord's reasonable attorneys' fees and
processing fees incurred in connection therewith.
18. Rules.
Tenant shall faithfully observe and comply with the rules and
regulations annexed to this Lease as Exhibit "E" and, after notice thereof, all
reasonable modifications thereof and additions thereto from time to time
promulgated in writing by Landlord. Landlord shall not be responsible to Tenant
for the nonperformance by any other tenant or occupant of the Building of any of
such rules and regulations.
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19. Entry by Landlord.
19.1 Landlord and its designees may enter the Demised Premises at
reasonable hours and upon reasonable notice, except in emergencies and except
with respect to (d) below, to (a) inspect the same, (b) exhibit the same to
prospective purchasers, lenders or tenants, (c) determine whether Tenant is
complying with all of its obligations hereunder, (d) supply janitor service and
any other services to be provided by Landlord to Tenant hereunder, (e) post
notices of nonresponsibility, and (f) make repairs required of Landlord under
the terms hereof or repairs to any adjoining space or utility services or make
repairs, alterations or improvements to any other portion of the Building;
provided, however, that all such work shall be done as promptly as reasonably
possible. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Demised Premises or any other loss occasioned by such
entry.
19.2 Landlord shall at all times have and retain a key with which to
unlock all of the doors in, on or about the Demised Premises (excluding Tenant's
vaults, safes and similar areas designated in writing by Tenant in advance); and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in any emergency in order to obtain entry to the
Demised Premises, and any entry to the Demised Premises obtained by Landlord by
any of said means, or otherwise, shall not under any circumstances be construed
or deemed to be a forcible or unlawful entry into or a detainer of the Demised
Premises or an eviction, actual or constructive, of Tenant from the Demised
Premises, or any portion thereof.
20. Events of Default.
20.1 The occurrence of any one or more of the following events
(hereinafter referred to as "Events of Default") shall constitute a breach of
this Lease by Tenant: (a) if Tenant shall fail to pay the Basic Rental when and
as the same becomes due and payable; or (b) if Tenant shall fail to pay any
other sum when and as the same becomes due and payable and such failure shall
continue for more than ten (10) days; or (c) if Tenant shall fail to perform or
observe any other term hereof or of the rules and regulations referred to in
Article 18 hereof to be performed or observed by Tenant, such failure shall
continue for more than thirty (30) days after notice thereof from Landlord, and
Tenant shall not within such thirty (30) day period commence with due diligence
and dispatch the curing of such default, or, having so commenced, shall
thereafter fail or neglect to prosecute or complete with due diligence and
dispatch the curing of such default; or (d) if Tenant shall fail to perform or
observe any provision of Article 4 hereof or Exhibit "C" hereto either prior or
subsequent to the Commencement Date; or (e) if Tenant shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts as they become due or shall file a petition in bankruptcy, or
shall be adjudicated as insolvent or shall file a petition in any proceeding
seeking any reorganization, arrangements, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file an answer admitting or fail timely to contest
or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant
or any material part of its properties; or (f) if within ninety (90) days after
the commencement of any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, such proceeding
shall not have been dismissed, or, if within ninety (90) days after the
appointment without the consent of acquiescence of Tenant, of any trustee,
receiver or liquidator of Tenant or of any material part of its properties, such
appointment shall not have been vacated; or (g) if this Lease or any estate of
Tenant hereunder shall be levied upon under any attachment or execution and such
attachment or execution is not vacated within ten (10) days.
20.2 If, as a matter of law, Landlord has no right on the bankruptcy of
Tenant to terminate this Lease, then, if Tenant, as debtor, or its trustee
wishes to assume or assign this Lease, in addition to curing or adequately
assuring the cure of all defaults existing under this Lease on Tenant's part on
the date of filing of the proceeding (such assurances being defined below),
Tenant, as debtor, or the trustee or assignee must also furnish adequate
assurances of future performance under this Lease (as defined below). Adequate
assurance of curing defaults means the posting with Landlord of a sum in cash
sufficient to defray the cost of such a cure. Adequate assurance of future
performance under this Lease means posting a deposit equal to three
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(3) months rent, including all other charges payable by Tenant hereunder, such
as the amounts payable pursuant to Article 5 hereof, and, in the case of an
assignee, assuring Landlord that the assignee is financially capable of assuming
this Lease, and that its use of the Demised Premises will not be detrimental to
the other tenants in the Building or Landlord. In a reorganization under Chapter
11 of the Bankruptcy Code, the debtor or trustee must assume this Lease or
assign it within one hundred twenty (120) days from the filing of the
proceeding, or he shall be deemed to have rejected and terminated this Lease.
21. Remedies.
If any of the Events of Default shall occur, then Landlord shall have
the following remedies:
(a) Landlord at any time after the Event of Default, at
Landlord's option, may give to Tenant three (3) days' notice of
termination of this Lease and in the event such notice is given, this
Lease shall come to an end and expire (whether or not the Term shall
have commenced) upon the expiration of such three (3) days, but Tenant
shall remain liable for damages as provided in Article 22 hereof.
(b) Either with or without terminating this Lease, Landlord
may immediately or at any time after the Event of Default or after the
date upon which this Lease shall expire, reenter the Demised Premises
or any part thereof, without notice, either by summary proceedings or
by any other applicable action or proceeding, (without being liable to
indictment, prosecution or damages therefor), and may repossess the
Demised Premises and remove any and all of Tenant's property and
effects from the Demised Premises.
(c) Either with or without terminating this Lease, Landlord
may relet the whole or any part of the Demised Premises from time to
time, either in the name of Landlord or otherwise, to such tenant or
tenants, for such term or terms ending before, on or after the
Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine. In the event of any
such reletting, Landlord shall not be liable for the failure to collect
any rental due upon any such reletting, and no such failure shall
operate to relieve Tenant of any liability under this Lease or
otherwise to affect any such liability; and Landlord may make such
repairs, replacements, alterations, additions, improvements,
decorations and other physical changes in and to the Demised Premises
as Landlord, in its sole discretion, considers advisable or necessary
in connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise
affecting such liability.
(d) Landlord shall have the right to recover the rental and
all other amounts payable by Tenant hereunder as they become due
(unless and until Landlord has terminated this Lease) and all other
damages incurred by Landlord as a result of an Event of Default.
(e) The remedies provided for in this Lease are in addition to
any other remedies available to Landlord at law or in equity by statute
or otherwise. See Attached Rider
22. Termination upon Default.
Upon termination of this Lease by Landlord pursuant to Article 21
hereof, Landlord shall be entitled to recover from Tenant the aggregate of: (a)
the worth at the time of award of the unpaid rental which had been earned at the
time of termination; (b) the worth at the time of award of the amount by which
the unpaid rental which would have been earned after termination until the time
of award exceeds the then reasonable rental value of the Demised Premises during
such period; (c) the worth at the time of the award of the amount by which the
unpaid rental for the balance of the term of this Lease after the time of award
exceeds the reasonable rental value of the Demised Premises for such period; and
(d) any other amount necessary to compensate
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Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom. The "worth at the time of award" of the amounts
referred to in clauses (a) and (b) above is computed from the date such rent was
due or would have been due, as the case may be, by allowing interest at the rate
of two percent (2%) in excess of the prime rate of NBD Bank or, if a higher rate
is legally permissible, at the highest rate legally permitted. The "worth at the
time of award" of the amount referred to in clause (c) above is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of
Chicago at the time of award, plus one percent (1%).
23. Landlord's Right to Cure Defaults.
All covenants, terms and conditions to be performed by Tenant under any
of the terms of this Lease shall be at its sole cost and expense and without any
abatement of rental. If Tenant shall fail to pay any sum of money, other than
Basic Rental, required to be paid by it hereunder or shall fail to perform any
other act on its part to be performed hereunder and such failure shall continue
for thirty (30) days after notice thereof by Landlord, Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as in this Lease provided. All sums so
paid by Landlord and all necessary incidental costs shall be deemed additional
rental hereunder and shall be payable to Landlord on demand, and Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of the nonpayment thereof by Tenant as in the case of
default by Tenant in the payment thereof by Tenant as in the case of default by
Tenant in the payment of Basic Rental.
24. Attorneys' Fees.
If Landlord uses the services of an attorney in connection with (a) any
breach or default in the performance of any of the provisions of this Lease, in
order to secure compliance with such provisions or recover damages therefor or
to terminate this Lease or evict Tenant, or (b) any action brought by Tenant
against Landlord, or (c) any action brought against Tenant in which Landlord is
made a party, Tenant shall reimburse Landlord upon demand for any and all
attorneys' fees and expenses so incurred by Landlord.
25. Subordination.
25.1 This Lease is and shall be subject and subordinate, at all times,
to (a) the lien of any mortgage or mortgages which may now or hereafter affect
the Building, and to all advances made or hereafter to be made upon the security
thereof and to the interest thereon, and to any agreements at any time made
modifying, supplementing, extending or replacing any such mortgages, and (b) any
ground or underlying lease which may now or hereafter affect the Building,
including all amendments, renewals, modifications, consolidation, replacements
and extensions thereof. Tenant shall attorn to any such mortgagee and/or ground
or underlying lessor upon the date it acquires title to the Building. Tenant
shall not have the right or option to terminate this Lease in the event title to
the Building is acquired by such mortgagee or lessor. Any such mortgagee
acquiring title to the Building through foreclosure, exercise of a power of sale
or deed in lieu of foreclosure may, upon so acquiring title to the Building, at
its sole option, accept this Lease on all of its terms and conditions or
terminate this Lease and exercise the rights of foreclosure which are accorded
the purchaser or foreclosing mortgagee pursuant to Michigan law. Tenant shall,
upon such purchaser's or mortgagee's request, execute a new lease with such
purchaser or mortgagee upon materially identical terms as this Lease.
Notwithstanding the foregoing, at the request of the holder of any of the
aforesaid mortgage or mortgages or the lessor under the aforesaid ground or
underlying lease, this Lease may be made prior and superior to such mortgage or
mortgages and/or such ground or underlying lease.
25.2 At the request of Landlord, Tenant shall execute and deliver such
further instruments as may be reasonably required to implement the provisions of
this Article 25.
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25.3 If, as a condition of approving this Lease, Landlord's mortgagee
shall request reasonable modifications of this Lease, Tenant shall not
unreasonably withhold or delay its agreement to such modifications, provided
that such modifications do not increase the obligations or materially and
adversely affect the rights of Tenant under this Lease.
26. Merger.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation hereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
27. Nonliability of Landlord.
27.1 In the event the Landlord hereunder or any successor owner of the
Building shall sell or convey the Building, all liabilities and obligations on
the part of the original Landlord or such successor owner under this Lease
accruing thereafter shall terminate, and thereupon all such liabilities and
obligations shall be binding upon the new owner. Tenant shall attorn to such new
owner.
27.2 Landlord shall not be responsible or liable to Tenant for any loss
or damage that may be occasioned by or through the acts or omissions of persons
occupying adjoining areas or any part of the area adjacent to or connected with
the Demised Premises or any part of the Building or for any loss or damage
resulting to Tenant or his property from theft or a failure of the security
systems in the Building, or for any damage or loss of property within the
Demised Premises from any cause other than solely by reason of the gross
negligence or willful act of Landlord, and no such occurrence shall be deemed to
be an actual or constructive eviction from the Demised Premises or result in an
abatement of rental.
27.3 If Landlord shall fail to perform any covenant, term or condition
of this Lease upon Landlord's part to be performed and, if as a consequence of
such default, Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only against the right, title and interest of
Landlord in the Building and out of rents or other income from the Building
receivable by Landlord, or out of the consideration received by Landlord from
the sale or other disposition of all or any part of Landlord's right, title and
interest in the Building, and neither Landlord nor any of the partners of
Landlord shall be liable for any deficiency.
28. Estoppel Certificate.
At any time and from time to time upon ten (10) days' prior request by
Landlord, Tenant will promptly execute, acknowledge and deliver to Landlord, a
certificate indicating (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification),
(b) the date, if any, to which rental and other sums payable hereunder have been
paid, (c) that no notice has been received by Tenant of any default which has
not been cured, except as to defaults specified in said certificate, and (d)
such other matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any deed of trust of the Building or any part thereof.
29. No Light. Air or View Easement.
Any diminution or shutting off of light, air or view by any structure
which may be erected on lands adjacent to the Building shall in no way affect
this Lease or impose any liability on Landlord.
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30. Holding Over.
It is hereby agreed that in the event of Tenant holding over after the
termination of this Lease, thereafter the tenancy shall be from month to month
in the absence of a written agreement to the contrary, and Tenant shall pay to
Landlord a daily occupancy charge equal to five percent (5%) of the monthly
rental under Paragraph 5 hereof for the last lease year (plus all other charges
payable by Tenant under this Lease) for each day from the expiration or
termination of this Lease until the date the Demised Premises are delivered in
the condition required herein, and Landlord's right to damages for such illegal
occupancy shall survive.
31. Abandonment.
If Tenant shall abandon or surrender the Demised Premises, or be
dispossessed by process of law or otherwise, any personal property belonging to
Tenant and left on the Demised Premises shall be deemed to be abandoned, or, at
the option of Landlord, may be removed by Landlord at Tenant's expense.
32. Security Deposit.
33. Waiver.
33.1 The waiver by Landlord of any agreement, condition or provision
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other agreement, condition or provision herein contained, nor
shall any custom or practice which may grow up between the parties in the
administration of the terms hereof be construed to waive or to lessen the right
of Landlord to insist upon the performance by Tenant of the terms hereof in
strict accordance with said terms. The subsequent acceptance of rental hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
of any agreement, condition or provision of this Lease, other than the failure
of Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rental.
33.2 Landlord and Tenant hereby waive trial by jury in any action,
proceeding, or counterclaim brought by Landlord or Tenant against the other on
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord to Tenant, the use or occupancy of the Demised
Premises by Tenant or any person claiming through or under Tenant, any claim of
injury or damage, and any emergency or other statutory remedy; provided,
however, the foregoing waiver shall not apply to any action for personal injury
or property damage. If Landlord commences any summary or other proceeding for
nonpayment of rent or the recovery of possession of the Demised Premises, Tenant
shall not interpose any counterclaim of whatever nature or description in any
such proceeding, unless the failure to raise the same would constitute a waiver
thereof.
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34. Notices.
All notices, consents, requests, demands, designations or other
communications which may or are required to be given by either party to the
other hereunder shall be in writing and shall be deemed to have been duly given
when personally delivered or deposited in the United States mail, certified or
registered, postage prepaid, and addressed as follows: to Tenant at the address
set forth in Section 1(k) hereof, or to such other place as Tenant may from time
to time designate in a notice to Landlord; to Landlord at the address set forth
in Section 1(l) hereof, or to such other place as Landlord may from time to time
designate in a notice to Tenant; or, in the case of Tenant, delivered to Tenant
at the Demised Premises. In the event a Guarantor is listed in Section 1(m)
hereof and such Guarantor executes this Lease, Landlord shall forward copies of
all notices of default hereunder to the Guarantor at the address set forth in
Section 1(n) hereof. Tenant hereby appoints as its agent to receive the service
of all dispossessory or distraint proceedings and notices thereunder the person
in charge of or occupying the Demised Premises at the time, and, if no person
shall be in charge of or occupying the Demised Premises at the time, then such
service may be made by attaching the same on the main entrance of the Demised
Premises.
35. Guaranty.
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36. Complete Agreement.
There are no oral agreements between Landlord and Tenant affecting this
Lease, and this Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between Landlord
and Tenant or displayed by Landlord to Tenant with respect to the subject matter
of this Lease or the Building. There are no representations between Landlord and
Tenant other than those contained in this Lease and all reliance with respect to
any representations is solely upon such representations.
37. Corporate Authority.
If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a
fully authorized and existing corporation, that Tenant has and is qualified to
do business in Michigan, that the corporation has full right and authority to
enter into this Lease, and that each and all of the persons signing on behalf of
the corporation are authorized to do so.
38. Inability to Perform.
If, by reason of the occurrence of unavoidable delays due to acts of
God, governmental restrictions, strikes, labor disturbances, shortages of
materials or supplies or for any other cause or event beyond Landlord's
reasonable control, Landlord is unable to furnish or is delayed in furnishing
any utility or service required to be furnished by Landlord under the provisions
of Article 8 hereof or any other provisions of this Lease or any collateral
instrument, or is unable to perform or make or is delayed in performing or
making any installations, decorations, repairs, alterations, additions, or
improvements, whether required to be performed or made under this Lease or under
any collateral instrument, or is unable to fulfill or is delayed in fulfilling
any of Landlord's other obligations under this Lease or any collateral
Instrument, no such inability or delay shall constitute an actual or
constructive eviction in whole or in part, or entitle Tenant to any abatement or
diminution of rental or other charges due hereunder or relieve Tenant from any
of its obligations under this Lease, or impose any liability upon Landlord or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
39. Covenant of Quiet Enjoyment.
Upon Tenant paying the rental and other charges due hereunder and
performing all of Tenant's obligations under this Lease, Tenant may peacefully
and quietly enjoy the Demised Premises during the term of this Lease; subject,
however, to the provisions of this Lease and to any mortgages or ground or
underlying leases referred to in Article 25 hereof.
40. Miscellaneous.
40.1 The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
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40.2 Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
40.3 The agreements, conditions and provisions herein contained shall,
subject to the provisions as to assignment, set forth in Article 17 hereof,
apply to and bind the heirs, executors, administrators, successors and assigns
of the parties hereto.
40.4 Tenant shall not, without the consent of Landlord, use the name of
the Building for any purpose other than as the address of the business to be
conducted by Tenant in the Demised Premises. Landlord reserves the right to
select the name of the Building and to make such changes of name as it deems
appropriate from time to time.
40.5 If any provisions of this Lease shall be determined to be illegal
or unenforceable, such determination shall not affect any other provisions of
this Lease and all such other provisions shall remain in full force and effect.
40.6 This Lease shall be governed by and construed pursuant to the
laws of the State of Michigan.
40.7 Upon Landlord's written request but not more frequently than once
annually, Tenant shall promptly furnish
Landlord, from time to time, financial statements reflecting Tenant's current
financial condition. See attached Rider.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date set forth in Section 1(a).
29200 NORTHWESTERN DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: 29200 Northwestern Development, Inc.,
a Michigan corporation, its General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx, President
"Landlord"
UNIVERSAL STANDARD HEALTHCARE
OF DELAWARE,
By /s/ Xxxx X. Xxx
---------------------------------
Its CFO
--------------------------------
"Tenant"
21
1
RIDER TO LEASE by and between 29200 NORTHWESTERN DEVELOPMENT ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership, as Landlord, and UNIVERSAL STANDARD
HEALTHCARE OF DELAWARE, INC., as a Tenant, for premises located at 00000
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx.
................................................................................
RIDER TO SECTION 3.1:
(a) Tenant shall be permitted to have access to the Demised Premises
five (5) days prior to the Commencement Date in order to install its furniture,
equipment and other personal property in the Demised Premises; provided,
however, that any furniture, equipment and other personal property installed by
Tenant in the Demised Premises during such period shall be at Tenant's sole risk
and Landlord shall not be liable or responsible to Tenant for any damage to such
furniture, equipment or other personal property from any cause whatsoever, and
Tenant shall not interfere with Landlord's completion of the Demised Premises.
By so entering the Demised Premises hereunder, Tenant shall not be deemed to
have taken occupancy of the Demised Premises pursuant to Section 3.1 hereof.
(b) Landlord may elect to terminate this Lease for any reason
whatsoever effective on the first anniversary of the Commencement Date and an
additional right on the third anniversary of the Commencement Date, upon not
less than six (6) months written notice to Tenant prior to such termination
date.
RIDER TO SECTION 4:
Tenant acknowledges that Landlord has earlier constructed the Demised
Premises substantially in accordance with Exhibit "C" attached hereto and that
Tenant is familiar with the physical condition of the Demised Premises and
hereby agrees to accept the Demised Premises in its existing "as-is" condition,
except as provided herein, without representation or warranty of any kind by
Landlord as to the present or future condition of the Demised Premises. Tenant's
taking of possession of the Demised Premises shall be deemed conclusive evidence
of Tenant's acceptance of the Demised Premises in good order and satisfactory
condition on or before March 31, 1999. Landlord shall provide or cause to be
provided, all materials and shall perform, or cause to be performed,
miscellaneous repairs and improvements as reasonably necessary, including the
installation of a new suite entry up to a total cost of $50,000.00 (hereinafter
referred to as the "Renovation Allowance"). Such work shall be substantially
completed on or before March 31, 1999. If such repairs and improvements shall
cost in excess of the Renovation Allowance, Tenant shall pay such excess in
accordance with Section 4(d) hereof. Landlord shall have no further obligations
to improve or to repair the Demised Premises except as expressly set forth in
this Lease.
RIDER TO SECTION 5.3:
For a period of two (2) years after the end of each respective calendar
year to which such records relate, Tenant shall have the right upon fifteen (15)
days prior written notice to Landlord to inspect Landlord's records relating to
Taxes and Expenses. Such inspection shall be conducted at Landlord's offices
during normal business hours at Tenant's expense and the person engaged to
conduct such audit shall not be engaged on a contingent fee basis.
RIDER TO SECTION 9.1:
(a) Landlord shall not unreasonably withhold its consent to interior
non-structured alterations, additions or improvements to the Demised Premises.
(b) Notwithstanding anything to the contrary in Section 9.1 hereof,
Tenant shall not be required to remove any such alterations, additions or
improvements installed in accordance with plans and specifications approved in
writing by Landlord.
RIDER TO SECTION 17.1:
Notwithstanding anything contained in Section 17.1 hereof to the
contrary, Landlord agrees that it will not unreasonably withhold its consent to
a proposed assignment of this Lease
1
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or subletting of the Demised Premises by Tenant; provided that Tenant shall not
sublet any portion of the Demised Premises or assign this Lease for any medical
or dental use, or to any governmental or quasi-governmental agency. In
determining reasonableness, Landlord may take into consideration all relevant
factors surrounding the proposed assignment or subletting, including, without
limitation: (i) the business reputation of the proposed assignee or subtenant
and its officers, directors and stockholders, (ii) the nature of the business of
the proposed assignee or subtenant and its affect on the other tenants of the
Building, (iii) the financial condition of the proposed assignee or subtenant;
and (iv) restrictions, if any, contained in leases or other agreements affecting
the Building.
RIDER TO SECTION 21:
Landlord shall use its reasonable efforts to mitigate its damages
resulting from Tenant's default hereunder; provided that Landlord may lease
other vacant premises in the Building prior to leasing the Demised Premises.
RIDER TO SECTION 25.1:
Prior to the Commencement Date, Landlord shall obtain a Subordination,
Attornment and Nondisturbance Agreement from the existing mortgage of the
Development for Tenant's benefit in a form reasonably acceptable to Tenant.
29200 NORTHWESTERN DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: 29200 Northwestern Development, Inc., a
Michigan corporation, its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx
Its: President
"LANDLORD"
UNIVERSAL STANDARD HEALTHCARE OF
DELAWARE, INC., a Delaware corporation
By: /s/ Xxxx X. Xxx
------------------------------------
Its: CFO
------------------------------------
"TENANT"
2
