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EXHIBIT 10.1
SECOND ADDENDUM attached to and made a part of that certain Lease dated
September 10, 1991, between FIRST INDUSTRIAL MORTGAGE PARTNERSHIP, L.P.,
successor in interest to WS Development Company, as Landlord, and SOMANETICS
CORPORATION, as Tenant, covering premises at 0000 X. Xxxxx Xxxx, Xxxx, Xxxxxxxx.
NOTWITHSTANDING anything to the contrary contained in the Lease, Agreement,
Addendum to Lease, Termination of Agreement, and Extension of Lease to which
this Second Addendum is attached to and made a part thereof, the Landlord and
Tenant agree as follows:
1. The Term of the Lease shall be extended two (2) years commencing January 1,
1998 and terminating December 31, 1999.
2. The minimum net rental for the extended two (2) year Term shall be Three
Hundred Fifty-Two Thousand Eight Hundred Ninety-Seven and 78/100 Dollars
($352,897.78) payable monthly in advance at the rate of Fourteen Thousand
Seven Hundred Four and 07/100 Dollars ($14,704.07).
3. Option to Extend Term:
a) Grant of Option: Tenant shall have the right and option to extend the
Term of this Lease for one (1) period of (1) year (hereinafter from
time to time referred to as the "Extension Period"), at the rental
rate and upon the other terms and conditions set forth herein. Tenant
shall not be entitled to so extend the Term of the Lease if then in
default or if during the year immediately preceding the date for
exercise of the option in questions, Tenant shall have been in default
under this Lease for any prior consecutive period of two (2) months, or
any non-consecutive period totaling four (4) months.
b) Exercise of Option: The option to extend the Term granted herein shall
be exercised by written notice to Landlord given not less than one
hundred eighty (180) days prior to December 31, 1999.
c) Minimum Net Rental: Tenant's possession of the Premises during the
Extension Period shall be under and subject to all the terms, covenants
and conditions set forth in the Lease, including the payment of the
minimum net rent at the rate of One Hundred Seventy-Six Thousand Five
Hundred Forty-Eight and 89/100 Dollars ($176,448.89) per year payable in
monthly installments in advance of Fourteen Thousand Seven Hundred Four
and 07/100 Dollars ($14,704.07).
d) Option Personal to Tenant: The option to extend Term of this Lease
granted in this Second Addendum is personal to Tenant and may not be
assigned in whole or in part in any manner whatsoever and can only be
exercised if Tenant is occupying and utilizing the Premises for the uses
set forth in Section 7 of this Lease.
4. Subordination; Notices to Superior Lessors and Mortgagees; Attornment:
4.1 Subordination of Lease. This Lease, and all rights of Tenant
hereunder, are subject and subordinate to all ground leases of the Premises now
or hereafter existing and to all mortgages or trust deeds (all of which are
hereafter referred to collectively as "Mortgages"), that may now or hereafter
affect or encumber all or any portion of the Premises. This subordination
shall apply to each and every advance made, or to be made, under such
Mortgages; to all renewals, modifications, replacements and extensions of such
Mortgages; and to "spreaders" and consolidations of such Mortgages. This
Section 4.1 shall be self-operative and no further instrument of subordination
shall be required; however, in confirmation of such subordination, Tenant shall
from time to time promptly execute, acknowledge and deliver any instrument that
Landlord may from time to time reasonably require in order to evidence or
confirm such subordination.
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Tenant acknowledges that this Lease has been (and, in the future, may be)
assigned by Landlord to a Superior Mortgagee, (defined below) as additional
collateral security for the loans secured by the Superior Mortgagee
(defined below) held by such Superior Mortgagee. Any ground lease to
which this Lease is subject and subordinate is hereinafter referred to as
a "Superior Lease," and the lessor of a Superior Lease is hereinafter
referred to as a "Superior Lessor; and the Lessee thereunder, a "Superior
Lessee"; and any Mortgage to which this Lease is subject and subordinate
is hereinafter referred to as a "Superior Mortgage," and the holder of a
Superior Mortgage is hereinafter referred to as a "Superior Mortgagee."
Notwithstanding the foregoing, at Landlord's election, this Lease may be
made senior to the lien of any Superior Mortgage, if and only if the
Superior Mortgagee, thereunder so requests.
4.2 Notice in the Event of Default. If any act or omission of Landlord or
Agent would give Tenant the right to cancel or terminate this Lease, or to
claim a partial or total eviction, Tenant shall not exercise such right (a)
until it has given, by registered or certified mail, return receipt
requested, written notice of such act or omission to Landlord and to each
Superior Mortgagee and Superior Lessor whose name and address shall
previously have been furnished to Tenant, and (b) until a thirty (30)-day
period for remedying such act or omission shall have elapsed following the
giving of such notice; provided, however, that said thirty (30)-day cure
period shall be automatically extended in the event that the act or
omission cannot, by its nature, be cured within thirty (30) days and one or
more of Landlord, the Superior Mortgagee or the Superior Lessor is
diligently proceeding to cure said default. See Exhibit A as integral
part of this "Second Addendum."
4.3 Successor Landlord. If any Superior Lessor or Superior Mortgagee
shall succeed to the rights of Landlord hereunder, then, at the request of
such party (hereinafter referred to as "Successor Landlord"), Tenant shall
attorn to and recognize each Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any instrument such
Successor Landlord may reasonably request to further evidence such
attornment. Tenant hereby acknowledges that in the event of such
succession, then from and after the date on which the Successor Landlord
acquires Landlord's rights and interest under this Lease (the "Succession
Date"), the rights and remedies available to Tenant under this Lease
against Successor Landlord shall be limited to the equity interest of the
Successor Landlord in the Premises; and the Successor Landlord shall not
(a) be liable for any act, omission or default of Landlord or other prior
lessor under this Lease; (b) be required to make or complete any tenant
improvements or capital improvements, or to repair, restore, rebuild or
replace the Premises or any part thereof in the event of damage, casualty
or condemnation; or (c) be required to pay any amounts to Tenant that are
due and payable, under the express terms of this Lease, prior to the
Succession Date. Additionally, from and after the Succession Date, Tenant's
obligation to pay Rent shall not be subject to any abatement, deduction,
set-off or counterclaim against the Successor Landlord that arises as a
result of, or due to, a default of Landlord or any other lessor that occurs
prior to the Succession Date in (a) (b) and (c) above. Moreover, no
Successor Landlord shall be bound by any advance payments of Rent made
prior to the calendar month in which the Succession Date occurs, nor by any
security deposit that is not actually delivered to, and received by, the
Successor Landlord.
5. Notices.
Any notice required to be given by either party pursuant to this Lease,
shall be in writing and shall be deemed to have been properly given,
rendered or made only if personally delivered, if sent by Federal Express
or other comparable overnight delivery service, or if sent by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
other party at the addresses set forth below (or to such other address as
Landlord or Tenant may designate to each other from time to time by written
notice), and shall be deemed to have been given, rendered or made on the
day so delivered or three (3) business days after having been mailed:
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If to Landlord: First Industrial, L.P.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
With a copy to: Barack, Xxxxxxxxxx, Xxxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: ____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
6. Landlord, at its sole cost and expense, will undertake the following work
in the Premises upon execution of this Second Addendum by the Landlord and
Tenant:
a) Construct offices as shown on the attached Exhibit 1 (Xxxxx & Xxxxxxxx
Associates, Inc. drawing dated April 8, 1997) using building standard
materials. Consistent with tenant finish.
b) Remove and replace carpet and base in high traffic areas and enclosed
offices with building standard carpet and base in colors selected by
Tenant.
c) Repair roof leaks.
All other terms and conditions of said Lease, Agreement, Addendum to Lease,
Termination of Agreement and Extension of Lease to remain in full force and
effect unless in conflict with the terms and conditions of this Second Addendum
in which event the terms and conditions of this Second Addendum shall prevail
and control.
6(a), (b) and (c) to be completed by May 31, 1997.
LANDLORD:
FIRST INDUSTRIAL MORTGAGE
PARTNERSHIP, L.P., a Delaware Limited
Partnership, successor in interest to WS
Development Company
By: First Industrial Mortgage Corporation, a
Maryland Corporation
Its: General Partner
By: /s/ Xxxxx X. Draft
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Xxxxx X. Draft
Its: Signing Officer
TENANT:
SOMANETICS CORPORATION, a Michigan
Corporation
By: /s/ Xxxxxxx X. Xxxx
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Its: EVP & CFO
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Dated: April 14, 1997
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EXHIBIT 1
SOMANETICS CORPORATION
SCHEMATIC FLOOR PLAN
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EXHIBIT A
In the event of foreclosure of the Mortgage or conveyance in lieu of
foreclosure, which foreclosure or conveyance occurs prior to the expiration date
of the lease now provided thereunder, and so long as Tenant is not in default
under any terms, covenants and conditions of the Lease beyond any applicable
grace period, Mortgagee agrees on behalf of itself, its successors and assigns,
and on behalf of any purchaser at such foreclosure ("Purchaser") that Tenant
shall not be disturbed in the quiet, peaceful possession of the premises
demised under the Lease.
Somanetics Corporation
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its: EVP & CFO
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