exv10w1






Exhibit 10.1




LEASE




CANDLEWOOD OFFICE CENTER

2600 TROY CENTER DRIVE

TROY, MICHIGAN




KIRTS OFFICE CENTER ASSOCIATES, L.L.C.




AS LANDLORD,




AND




 SOMANETICS CORPORATION 




AS TENANT




DATE: July 22, 2009




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	Page	
	 
	 	 	 	 	 	 
	1.
	 	Basic Lease Terms and Provisions	 	 	1	 
	2.
	 	Premises	 	 	2	 
	3.
	 	Contingency for Lender Approval/Term	 	 	3	 
	4.
	 	Rent	 	 	7	 
	5.
	 	Operating Expenses	 	 	8	 
	6.
	 	Character of Occupancy	 	 	10	 
	7.
	 	Services and Utilities	 	 	11	 
	8.
	 	Quiet Enjoyment	 	 	12	 
	9.
	 	Maintenance and Repairs	 	 	12	 
	10.
	 	Alterations and Additions	 	 	13	 
	11.
	 	Entry by Landlord	 	 	14	 
	12.
	 	Construction Liens	 	 	14	 
	13.
	 	Damage to Property, Injury to Persons	 	 	15	 
	14.
	 	Insurance	 	 	16	 
	15.
	 	Damage or Destruction to Building	 	 	17	 
	16.
	 	Condemnation	 	 	17	 
	17.
	 	Assignment and Subletting	 	 	18	 
	18.
	 	Estoppel Certificate	 	 	19	 
	19.
	 	Default	 	 	19	 
	20.
	 	Completion of Premises	 	 	23	 
	21.
	 	Removal of Tenant's Property	 	 	25	 
	22.
	 	Holding Over	 	 	26	 
	23.
	 	Parking Areas	 	 	26	 
	24.
	 	Surrender and Notice	 	 	26	 
	25.
	 	Acceptance of Premises by Tenant	 	 	26	 
	26.
	 	Subordination and Attornment	 	 	26	 
	27.
	 	Payments after Termination	 	 	28	 
	28.
	 	Authorities for Action and Notice	 	 	28	 
	29.
	 	Security Deposit	 	 	29	 
	30.
	 	Liability of Landlord	 	 	29	 
	31.
	 	Brokerage	 	 	29	 
	32.
	 	Signage	 	 	29	 
	33
	 	Name of Building Project	 	 	29	 
	34.
	 	Area of Premises	 	 	30	 
	35.
	 	Furnishing of Financial Statements	 	 	30	 
	36.
	 	Miscellaneous	 	 	30	 
	37.
	 	Representations	 	 	32	 
	38.
	 	Environmental	 	 	33	 
	39.
	 	Consent Judgment and Condominium	 	 	33	 






EXHIBITS




	 	 	 	 	 
	Exhibit A	 	Site Plan/Location of Premises

	Exhibit B	 	Rules and Regulations

	Exhibit C	 	Construction Schedule

	Schedule 1	 	Legal Description of the Building Complex








 











 





CANDLEWOOD OFFICE CENTER

TROY, MICHIGAN




LEASE




     THIS LEASE is made this 22nd day of July, 2009, between KIRTS OFFICE CENTER
ASSOCIATES, L.L.C., a Michigan limited liability company, (“Landlord”), whose address is Columbia
Center, 101 W. Big Beaver Road, Suite 200, Troy, Ml 48084, and SOMANETICS CORPORATION, a Michigan
corporation (“Tenant”) whose address is 1653 East Maple Road, Troy, Michigan 48083.




	 	1.	 	Basic Lease Terms and Provisions:





          The following is intended to summarize the principal terms of this Lease, but is not intended
to be all inclusive. In the event that anything contained in this Paragraph 1 conflicts with other
provisions hereinafter contained in this Lease, the latter shall be deemed to control in the
absence of express statements to the contrary.





	 	A.	 	Building: Candlewood Office Center

              2600 Troy Center Drive

              Troy, Michigan
	 
	 	B.	 	Leased Premises or Premises: Consisting of all of Unit 2 of the
Candlewood Hotel/Office Center Condominium including the Building located
thereon, comprising approximately Forty-seven Thousand Eight Hundred
Sixty-eight (47,868) rentable square feet, and any adjacent lawn area or
parking areas (equal to approximately 204 parking spaces on the date hereof)
included in such Unit (and the right to use all parking spaces granted to the
Landlord under that certain Parking Easement Agreement dated September 25, 1997
recorded at Liber 17955, Page 513, Oakland County Records, as amended by that
certain First Amendment to Parking easement Agreement dated April 20, 1998
recorded at Liber 18576, Page 592 Oakland County Records (the “Parking
Easement”)).
	 
	 	C.	 	Term: Eighty-seven (87) full calendar months and one partial
month (December, 2009) commencing upon December 15, 2009 (the “Commencement
Date”), and terminating the last day of the eighty-seventh full calendar month
after the Commencement Date (“Termination Date”), all subject to the terms of
Paragraph 20 of the Lease.
	 
	 	D.	 	Base Rent:




1









 











	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Annual Per
	 	 	 	 	 	 	 	 	 	 	Square Foot
	Period	 	Monthly	 	Annually	 	Rental Rate
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Commencement Date through the
15th full calendar
month after the Commencement
Date:
	 	$	36,898.25	 	 	$	442,779.00	 	 	$	9.25	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Months 16-27 after the month
in which the Commencment Date
occurs:
	 	$	37,815.72	 	 	$	453,788.64	 	 	$	9.48	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Months 28-39 after the month
in which the Commencment Date
occurs:
	 	$	38,773.08	 	 	$	465,276.96	 	 	$	9.72	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Months 40-51 after the month
in which the Commencment Date
occurs:
	 	$	39,730.44	 	 	$	476,765.28	 	 	$	9.96	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Months 52-63 after the month
in which the Commencment Date
occurs:
	 	$	40.727.69	 	 	$	488.732.28	 	 	$	10.21	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Months 64-75 after the month
in which the Commencment Date
occurs:
	 	$	41,764.83	 	 	$	501,177.96	 	 	$	10.47	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Months 76-87 after the month
in which the Commencment Date
occurs:
	 	$	42,801.97	 	 	$	513,623.64	 	 	$	10.73	 







	 	E.	 	Operating Expenses: Tenant is responsible for all of the
Operating Expenses of the Premises and the Building and the Premises’ pro rata
share, if any, of the expenses of the Building Complex as such terms are
defined herein.
	 
	 	F.	 	Use: Office use, assembly and packaging, engineering, research,
medical equipment testing, development, marketing, sales, finance,
administration, product service, storage, shipping and receiving and all other
uses permitted by the City of Troy and applicable law.
	 
	 	G.	 	Maximum Occupancy [Intentionally Deleted]
	 
	 	H.	 	Security Deposit: [Intentionally Deleted]
	 
	 	I.	 	Broker: Whitehall Realty Company, CB Richard Ellis and Kirco
Management Services, Ltd.
	 
	 	J.	 	Building Complex: All of the land and improvements included
within the Candlewood Hotel/Office Center Condominium.






	 	2.	 	Premises:





          Landlord hereby leases to Tenant those certain premises designated on the Plan attached hereto
as Exhibit “A” (the “Premises”), as more particularly defined in subparagraph B of Paragraph 1
hereof, together with: (i) an exclusive right to use, subject to the provisions hereof, and that
certain Master Deed for Candlewood Hotel/Office Center Condominium recorded at Liber 17654, Page
812 with the Oakland County, Michigan Register of Deeds (the “Master Deed”), all appurtenances
thereunto, including but not limited to, all limited and general common elements benefiting Unit 2,
including parking areas; and (ii) the rights of the Landlord under the Parking Easement. This Lease
is subject to the terms, covenants and conditions set forth herein and Tenant and Landlord each
covenant as a material part of the consideration for this Lease to keep and perform each and all of
said terms, covenants and conditions by it to be





2









 







kept and performed and that this Lease is made upon the condition of such performance. Except
as expressly set forth herein, Tenant agrees to accept the Premises in their “AS IS” “WHERE IS”
physical condition and “WITH ALL FAULTS” with out any agreements, representations or obligations on
the part of Landlord as to the condition of the Premises or Building.




          Notwithstanding anything to the contrary contained in this Lease, if the Landlord’s
construction work to make the Premises Ready for Occupancy shall contain latent defects discovered
within one (1) year from the Commencement Date, or one (1) year after completion thereof, if later,
Tenant shall report such latent defects to Landlord, whereupon Landlord shall make reasonable
commercial efforts to cause the contractor performing such work to correct such defect. Landlord
shall also obtain, to the extent any personal property is purchased and installed in the Premises
in connection with such construction, all manufacturers’ warranties in connection with such
personal property and shall make reasonable commercial efforts to cause any defects thereto to be
repaired pursuant to such warranties.




          Provided Tenant is not in default under the Lease beyond any applicable grace or cure period,
Tenant or a Permitted Assignee (as hereinafter defined), but not any other assignee or sublessee,
this right being personal to the original Tenant and a Permitted Assignee, shall have the right to
expand the Premises (the “Expansion”) subject to the following conditions: (i) Tenant and Landlord
shall work collaboratively to provide plans and specifications reasonably acceptable to Landlord
and Tenant; (ii) the party performing such construction work shall be able to obtain any and all
necessary consents or approvals for construction of the improvements; (iii) all such improvements
shall comply in all respects with all applicable laws and ordinances; (iv) if Landlord is
performing the work, Kirco Manix Construction, LLC, or an affiliate of Landlord, shall be retained
as the general contractor or to provide construction management services at its then prevailing
rates; (v) the party performing such work shall provide lien waivers and title insurance coverage
as such construction progresses; and (vi) if the Tenant is the party performing such work, Tenant
shall comply with all other requirements of this Lease relating to Alterations, as set forth in
Article 10 hereof, with regard to such Expansion. The Base Rent, any increases thereto and the
timing of the construction of the Expansion shall be agreed upon between Landlord and Tenant as set
forth below.




          Tenant shall notify Landlord of its desire to have the Expansion built, which notice shall
include the approximate parameters of the desired Expansion, including the approximate square
footage and location of the Expansion. The parties shall negotiate, in good faith, within ninety
(90) days after Landlord’s receipt of Tenant’s notice, the Base Rent for the Expansion, including
any increases thereto; the timing of the construction of the Expansion; and all other matters; and
Landlord shall determine the availability of equity for, and the availability and rates of
financing of, the construction of such Expansion. In the event that the parties fail to agree upon
the terms and conditions of the construction and leasing of the Expansion within such ninety (90)
day period, Tenant shall have the right to proceed to construct the Expansion, at its sole cost and
expense, pursuant to the terms and conditions set forth in the immediately preceding paragraph and
the other provisions of this Lease relating to Alterations, except that Tenant shall select the
general contractor or construction manager who will be undertaking the work, subject to Landlord’s
consent which shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing, if Tenant constructs the Expansion, as set forth in the preceding sentence, Kirco Manix
Construction, LLC, or an affiliate of Landlord, shall have the right to bid on the construction
work. If the Tenant constructs the Expansion, at its sole cost and expense, the Base Rent shall
not be increased as a result of the construction of the Expansion. The parties shall execute and
deliver an amendment to this Lease consistent with the foregoing prior to the construction of the
Expansion in form and substance reasonably satisfactory to Landlord and Tenant. Neither Landlord
nor Tenant shall be obligated to pay any additional brokerage commission in connection with the
leasing of the Expansion except if Tenant has engaged Whitehall Realty Company dba Whitehall Real
Estates Interests (“Whitehall”) to represent Tenant in connection with such Expansion, and
Whitehall takes an active part in such negotiations, Landlord shall be obligated to pay Whitehall a
brokerage commission pursuant to a separate Registration and Commission Agreement between Landlord
and Whitehall dated April 29, 2009.





	 	3.	 	Contingency for Lender Approval/Term:






	 	(a)	 	It is acknowledged that this Lease is subject to, and the
following items are conditions precedent to, the Landlord’s obligations under
this Lease: (i) the approval of the existing mortgagee of the Premises as of
the date hereof, Flagstar Bank, successor in interest to Metropolitan Realty
Company, L.L.C. (“Flagstar”) to the terms and conditions of this Lease




3









 






	 	 	 	(“Lender Lease Approval”); and (ii) the closing of a modification of the
loan secured by the Premises between Landlord and Flagstar (“Loan Closing”).
Landlord shall make reasonable commercial efforts promptly after execution
of this Lease, to obtain Lender Lease Approval and to cause the Loan Closing
to occur. Landlord shall notify Tenant when it has obtained Lender Lease
Approval and/or Loan Closing and, shall further provide a Schedule of
Construction for Tenant’s review and approval, if different from Exhibit C
attached hereto. Upon Landlord and Tenant agreeing upon a Schedule of
Construction, if different from Exhibit C attached hereto, the parties shall
execute a side letter agreement containing such schedule which shall replace
Exhibit C attached hereto. In the event that Lender Lease Approval and Loan
Closing do not occur within thirty (30) days after the date of the full
execution of this Lease, Landlord shall have the right to terminate this
Lease by written notice to Tenant within five (5) business days after the
expiration of such thirty (30) day period.
	 
	 	(b)	 	The term of this Lease shall be for the period referred to in
subparagraph C of Paragraph 1 hereof (the “Primary Lease Term”) commencing at
12:01 a.m. on the Commencement Date, and terminating at 12:00 midnight on the
Termination Date, unless sooner terminated pursuant to this Lease.
	 
	 	(c)	 	If the Term begins on a day other than on the first day of the
month, Tenant shall pay proportionate rent at the same monthly rate as set
forth in Paragraph 1.D. hereof (also in advance) for such partial month and the
abatement provided below will apply and all other terms and conditions of this
Lease shall be in force and effect during such partial month. In the event
Landlord fails to deliver the Premises on the Commencement Date because the
Premises are not then Ready for Occupancy (as hereinafter defined) or for any
other cause beyond Landlord’s control, except as otherwise provided herein,
Landlord shall not be liable to Tenant for any damages as a result of
Landlord’s delay in delivering the Premises and the Commencement Date shall be
postponed until such date as the Premises are Ready for Occupancy and the
Termination Date shall be postponed for a like number of days. Upon delivery of
the Premises ready for Occupancy the parties agree to enter into a Supplement
to Lease or a Suite Acceptance Letter which shall stipulate the Commencement
Date and Termination Date of this Lease.
	 
	 	 	 	Notwithstanding the foregoing, should the Commencement Date not have
occurred on or before December 15, 2009, subject to (aa) an extension of one
day for each day beyond the date Tenant is required to respond to Landlord’s
plans pursuant to Paragraph 20 hereof that Tenant fails to so respond, (bb)
extension for any delays in the Premises being Ready for Occupancy due to
the acts or omissions of Tenant, or its subtenants, assignees, and their
respective partners, stockholders, members, directors, officers, agents,
employees, contractors, clients, customers and invitees (collectively
“Tenant’s Parties”), and (cc) exension for any force majeure events (as
maybe extended, the “Proposed Delivery Date”), Tenant shall receive a credit
against Base Rent in the amount equal to: (i) Five Hundred Dollars ($500)
per day for each of the first thirty-one (31) days between the Proposed
Delivery Date and the Commencement Date when the Commencement Date does not
occur; (ii) Seven Hundred and Fifty Dollars ($750) per day for each of the
next thirty-one (31) days (days 32-62) between the Proposed Delivery Date
and the Commencement Date for when the Commencement Date does not occur; and
(iii) One Thousand Five Hundred Dollars ($1,500) per day for each of the
next thirty (30) days (days 63-92) between the Proposed Delivery Date and
the Commencement Date for when the Commencement Date does not occur.
	 
	 	 	 	Subject to (aa) an extension of one day for each day beyond the date Tenant
is required to respond to Landlord’s plans pursuant to Paragraph 20 hereof
that Tenant fails to so respond, (bb) extension for any delays in the
Premises being Ready for Occupancy due to the acts or omissions of Tenant’s
Parties, and (cc) extension for any force majeure events, if the Premises
are not Ready for Occupancy on or before February 1, 2010 (as such date may
be so extended, the “Outside Delivery Date”), then Tenant




4









 






	 	 	 	shall have the option, on Landlord’s behalf, to perform or cause to be
performed the construction work required to make the Premises Ready for
Occupancy by providing written notice to Landlord within ten (10) business
days after the Outside Delivery Date. Should Tenant not deliver such
written notice to Landlord within the 10 business day period specified
above, Tenant irrevocably shall have waived its right to perform such
construction work under this paragraph. Should Landlord make the Premises
Ready for Occupancy within ten (10) business days after receipt of Tenant’s
notice hereunder, then Tenant’s election to exercise its self-help right
hereunder automatically shall be null and void, Tenant shall occupy the
Premises and the Commencement Date shall be deemed to have occurred.
	 
	 	 	 	In the event that Tenant performs the Landlord’s construction work required
to make the Premises Ready for Occupancy pusuant to the foregoing paragraph
Tenant shall be entitled to recover from Landlord Tenant’s reasonable costs
and expenses in connection with the exercise of such right. Tenant shall
provide an invoice with reasonable supporting documentation and Landlord
shall pay Tenant for such costs within thirty (30) days after receipt of
such invoice.
	 
	 	 	 	The rent credits and the self-help remedy specified above shall be Tenant’s
sole and exclusive remedies against Landlord for its failure to complete the
Premises on a timely basis and deliver the Premises Ready for Occupancy to
Tenant. In recognition that Landlord must make payments under its mortgage
of the Premises, Tenant agrees that the credit against Base Rent may not
exceed more than twenty-five percent (25%) of the Base Rent in any month
during the Term.
	 
	 	 	 	Provided that Tenant does not interfere with the Landlord’s work in
preparing the Premises to be Ready for Occupancy, Landlord hereby grants to
Tenant a license to access the Premises prior to the Commencement Date to
allow Tenant to prepare the Premises for Tenant’s use and occupancy,
including the installation of Tenant’s equipment, improvements, inventory
and personal property and all other work deemed necessary or desirable by
Tenant to open and operate the Premises, (collectively “Tenant’s FF&E”), for
a period of thirty (30) days prior to the Commencement Date subject to such
reasonable conditions as Landlord may deem necessary, including Tenant
obtaining all insurance required to be obtained under the terms hereof.
	 
	 	(d)	 	Subject to Tenant not being in default of this Lease beyond any
applicable grace or cure period at the time it notifies Landlord of its desire
to renew through and including the execution of a lease amendment providing for
such renewal, Tenant or a Permitted Assignee, but not any other assignee or
sublessee, this right being personal to the original Tenant and a Permitted
Assignee, shall have two (2) consecutive options to renew this Lease (the
“Renewal Option(s)”) for a term of five (5) years each for all, but not less
than all, of the Premises (the “Renewal Term(s)”) as may be expanded hereunder,
commencing on the day after the Expiration Date or the expiration of the first
Renewal Term, as applicable, and expiring on the date which is five (5) years
thereafter, on the same terms and conditions as set forth herein except that
the Base Rent for the relevant Renewal Term shall be the amount agreed upon by
the parties pursuant to the terms and conditions set forth in this Section
3(d).
	 
	 	 	 	In order to exercise a Renewal Option, Tenant must deliver to Landlord
written notice of exercise no earlier than twelve (12) months and no later
than nine (9) months prior to the Expiration Date or the expiration of the
previous Renewal Term, as applicable.
	 
	 	 	 	Within ninety (90) days after receipt of notice that Tenant desires to
exercise a Renewal Option, the parties shall negotiate, in good faith, the
Base Rent for the Renewal Term and any annual increases to the same. In the
event that the parties fail to agree upon the the Base Rent for the Renewal
Term and any annual increases to the same within such ninety (90) days after
Tenant’s receipt of Landlord’s notice, Tenant’s notice of election to extend
the term shall be null and void and of no force or effect.




5









 






	 	 	 	In the event Tenant exercises one or more of the Renewal Options in strict
accordance with the terms hereof, Tenant shall execute and deliver an
amendment to this Lease consistent with the foregoing within thirty (30)
days after receipt by Tenant of the subject lease amendment in form and
substance reasonably satisfactory to Landlord.
	 
	 	 	 	Landlord shall not perform any leasehold improvements in connection with the
exercise of any Renewal Options and the Tenant agrees to accept the Premises
in its then “AS IS” “WHERE IS” condition and “WITH ALL FAULTS” on the
commencement date of the relevant Renewal Term, and Tenant shall not be
entitled to any credit or allowance or other economic concession from
Landlord for the improvement thereof or otherwise. Neither Landlord nor
Tenant shall be obligated to pay any additional brokerage commission in
connection with the Renewal Options except if Tenant has engaged Whitehall
to represent Tenant in connection with such Renewal Options, and Whitehall
takes an active part in such negotiations, Landlord shall be obligated to
pay Whitehall a brokerage commission pursuant to a separate Registration and
Commission Agreement between Landlord and Whitehall dated April 29, 2009.
	 
	 	 	 	Tenant shall have no further options to renew the Term beyond the expiration
date of the second Renewal Term. The Renewal Options herein granted shall
automatically terminate and become null and void and of no force or effect
upon the occurrence of any of the following: (1) Tenant either has been or
is then currently in default under this Lease beyond any applicable grace or
cure period, (2) the early termination of this Lease has been exercised by
Landlord or Tenant, (3) the assignment of this Lease by Tenant, or the
sublease by Tenant of the Premises, or any part thereof, except for an
assignment of this Lease by Tenant to a Permitted Assignee, (4) the failure
of Tenant to timely or properly exercise the applicable Renewal Option in
strict accordance with the terms of this Paragraph, or (5) in the case of
the exercise of the second Renewal Option, the failure of Tenant to timely
or properly exercise the previous Renewal Option in strict accordance with
the terms of this Paragraph.
	 
	 	(e)	 	On the last day of the seventy-fifth (75th) full
calendar month of the Term (the “Early Termination Date”), Tenant or a
Permitted Assignee, but not any other assignee or sublessee, this right being
personal to the original Tenant and a Permitted Assignee, shall have the one
time option (the “Termination Option”) to terminate this Lease by providing
written notice to Landlord not more than twelve (12) full calendar months and
not less than nine (9) full calendar months prior to the Early Termination
Date. Tenant’s Termination Option is conditioned upon Tenant’s compliance with
all of the following terms and conditions: (i) Tenant is not in default, nor
has been in default beyond any applicable grace or cure period, on the date
Tenant exercises the Termination Option, or at any time prior to the Early
Termination Date; and (ii) Tenant pays to the Landlord, concurrently with
Tenant’s notice to exercise the Termination Option, a termination fee equal to
the unamortized cost, on a straight line basis over the entire Term of the cost
of the Allowance and brokerage fees paid by Landlord plus the Base Rent due for
the first two (2) months after the Early Termination Date (the “Termination
Fee”). The parties acknowledge that the Landlord’s damages as a result of such
early termination are difficult or impossible to measure and it is agreed that
the Termination Fee is the parties’ reasonable estimate of such damages and
shall be deemed to be liquidated damages and not a penalty to Tenant. It is
agreed between Tenant and Landlord that the Termination Fee shall not limit
Tenant’s requirement to comply with all other obligations under the Lease. If
Tenant does not notify Landlord of its election to exercise the Termination
Option, Tenant will be deemed to have forever waived its Termination Option
and, if so requested by Landlord, Tenant shall execute an amendment to lease
deleting the Termination Option.
	 
	 	 	 	In the event Tenant timely and properly exercises the Termination Option,
the Lease Term shall terminate effective as of the Early Termination Date.
Rent shall be paid through and apportioned as of the Early Termination




6









 






	 	 	 	Date, and neither Landlord nor Tenant shall have any rights, estates,
liabilities or obligations accruing under the Lease after the Early
Termination Date, except such rights and liabilities which, by the terms of
the Lease are obligations of the Tenant or Landlord which survive the
expiration of the Lease Term. The Termination Option shall automatically
terminate and become null and void upon any one of the following: (a) the
failure of Tenant to timely or properly exercise the Termination Option and
pay the Termination Fee in strict accordance with the terms of this Section;
or (b) Tenant is, or has been, in default under this Lease beyond any
applicable grace or cure period. In the event that Tenant validly exercises
the Termination Option but does not vacate the Premises on or before the
Early Termination Date such tenancy shall be deemed to be a holdover tenancy
under the terms of the Lease.






	 	4.	 	Rent:





          Tenant shall pay to Landlord, as Base Rent for the Premises, the rental set forth in
subparagraph D of Paragraph 1 hereof. Rent for the first month of the term hereof shall be prorated
based upon the number of days during said month that the Lease Term was in effect. All other rent
shall be payable on the first day of each calendar month during the term hereof. All such rent
shall be paid in advance without notice, abatement, demand, deduction or offset at the office of
the Landlord or to such other place as Landlord may designate in writing. It is the understanding
of the parties that the Base Rent is to be absolutely “net” to the Landlord and, except as
otherwise expressly provided herein, Tenant shall bear all costs and expenses of whatever kind
relating to the Premises, the Building and the Premises’ pro rata share, if any, of the expenses of
the Building Complex.




          Notwithstanding the foregoing, Base Rent shall abate for the first three (3) months of the
Term (the “Abated Rent”) and if the Commencement Date is other than the first day of a month the
Abated Rent shall apply to the Base Rent as prorated for that month and the remaining days of the
first month abatement shall be applied to reduce the payment due for the third month of the term so
that Tenant has a total of three full months of Abated Rent. The abatement of Base Rent provided
herein shall not relieve Tenant from the performance of Tenant’s other obligations under this
Lease, including, without limation, the obligation to pay on a timely basis Operating Expenses, as
hereinafter defined, and all other additional rent and other obligations under this Lease, which
shall become due and payable during the entire Term. In the event of Tenant’s default hereunder,
the entire amount of the Abated Rent shall become immediately due and payable and Tenant shall,
upon demand of Landlord, immediately pay to Landlord the amount of the Abated Rent. All amounts
payable to Landlord under this Lease, including without limitation Base Rent, shall be paid by
Tenant to Landlord at the address shown above, or such other place as Landlord may designate in
writing from time to time.




          In the event Tenant shall fail to pay, when the same is due and payable, any installment of
the Base Rent or any additional rent to be paid by Tenant to Landlord under the terms of this
Lease, then at Landlord’s election to do so, such unpaid amounts shall bear interest from the due
date thereof to the date of payment at the rate of two percent (2%) per annum in excess of the
prime or base rate set by JP Morgan Chase Bank, or its successor, as such rate is increased or
decreased, from time to time (the “Default Rate”). In any event, however, Tenant shall be charged a
service charge with respect to each monthly installment of rental not received by the due date for
said installment. Such service charge shall reimburse Landlord for the additional administrative
expenses incurred by Landlord in connection with the collection of such late installment of monthly
rental. The service charge shall be the greater of five percent (5%) of the amount over due or
unpaid or Fifty and Dollars ($50.00) for any rental not paid by the seventh (7th) day of
the month. Any interest and service charge to be paid by Tenant pursuant to the foregoing
provisions shall be paid along with the next scheduled installment of Base Rent without any
additional notice whatsoever.




7









 









	 	5.	 	Operating Expenses:






	 	(a)	 	“Operating Expenses” shall:
	 
	 	 	 	Mean all operating expenses of any kind or nature with respect to the
Premises and the Building and the Premises’ pro rata share, if any, of the
expenses of the Building Complex as determined in accordance with generally
accepted accounting principles and shall include, but not be limited to, all
general and special real estate or ad valorem taxes or general or special
assessments (which shall be limited to installments falling due during the
Term), sewer rents and charges levied against the Premises by any
governmental or quasi-governmental authority or any taxes or assessments
which shall be levied on the Premises in lieu of or in addition to all or
any portion of any such real estate taxes or assessments, or which shall be
levied on the rentals of the Premises (other than Landlord’s income taxes),
but in this case, the computation shall be made as if this were Landlord’s
only building, or which shall be levied on Landlord as a result of the use,
ownership or operation of the Premises; the cost of Premises supplies; costs
incurred in connection with all energy sources for the common areas of the
Building Complex; janitorial services; general maintenance and normal repair
of the Premises, including the heating and air conditioning systems of the
Building, landscaping maintenance, maintenance, repair, striping and
replacement of all parking areas (except for the work that Landlord has
agreed to undertake in this Lease, at its sole cost and expense, prior to
the Commencement Date, as set forth in Paragraph 20 hereof); association
assessments or condominium assessments of the Building Complex allocated to
the Premises pursuant to the Master Deed; the costs of rubbish removal, snow
removal and service contracts for the HVAC systems of the Building; the cost
to repair, alter, remove, reconstruct or improve any part of the Premises as
required by governmental requirements in the form of laws, ordinances,
regulations, or otherwise enacted or amended after the date hereof; the cost
of general maintenance and normal repair of the Premises; insurance in
amounts and coverage determined by Landlord or its mortgagee, including fire
and extended coverage, rental interruption, sprinkler leakage, plate glass
and public liability insurance (but Tenant shall have no interest in such
insurance or the proceeds thereof except that Operating Expenses shall not
include expenses reimbursed under such policies); labor costs incurred in
the operation and maintenance of the Premises, including wages and other
payments, costs to Landlord of Workers’ Compensation and disability
insurance, payroll taxes, and welfare fringe benefits for employees directly
associated with operating the Building; professional building management
fees; legal, accounting, inspection and consultation fees incurred in
connection with the Premises or any other inspection or consultation fees
required for the normal prudent operation of the Premises; the cost of any
capital improvements to the Premises or of any machinery or equipment
installed in the Premises amortized over the useful life of such item as
determined under the Internal Revenue Code, as reasonably agreed by
Landlord’s and Tenant’s accountant or chief financial officers, as
applicable, plus interest at five percent (5%) of such amortized amount; the
common area costs of the Building Complex; and all other charges properly
allocable to the repair, operation and maintenance of the Premises in
accordance with generally accepted accounting principles.
	 
	 	 	 	Operating Expenses will not include:






	 	(a)	 	Replacement of the Building’s roof, walls and
foundation;
	 
	 	(b)	 	Depreciation on the Building Complex or any
areas within it;
	 
	 	(c)	 	Ground lease payments, mortgage principal,
interest, penalties and charges, financing and refinancing costs and
expenses;
	 
	 	(d)	 	Costs of replacements to Landlord’s personal
property and equipment;




8









 






	 	(e)	 	The cost of repairs or replacements due to
casualty or condemnation that are reimbursed by third parties;
	 
	 	(f)	 	Any cost or expense due to Landlord’s breach of
this Lease provided that Tenant has timely paid and performed its
obligations under this Lease relating to such item;
	 
	 	(g)	 	Any income, estate, inheritance, or other
transfer tax and any excess profit, franchise, or similar taxes on
Landlord’s business, except as provided above and any increases in real
property taxes resulting from the sale or transfer of the Premises by
Landlord;
	 
	 	(h)	 	All costs and expenses (including lease
concessions and allowances), including legal fees, relating to
activities for the solicitation and execution of leases of space in the
Building;
	 
	 	(i)	 	Any cost or expense related to removal,
cleaning, abatement or remediation of “hazardous material” not directly
caused by Tenant and which is not done in the ordinary course of
business on the Premises (e.g., cleanup of accidentally spilled paint
as opposed to cleanup of hazardous substances which are in quantities
which violate environmental laws); and
	 
	 	(j)	 	Costs to correct construction defects and
latent defects of Landlord’s construction work to make the Premises
Ready for Occupancy within within one (1) year from the Commencement
Date, or one (1) year after completion of such item, if later, which
have been reimbursed to the Landlord pursuant to third-party
warranties.






	 	 	 	If Landlord selects an accrual accounting basis for calculating Operating
Expenses, Operating Expenses shall be deemed to have been paid when such
expenses have accrued in accordance with generally accepted accounting
principles.
	 
	 	(b)	 	It is hereby agreed that during the Term hereof, Tenant shall
pay to Landlord the Operating Expenses. At least thirty (30) days prior to the
Commencment Date, Landlord shall notify Tenant of Landlord’s estimate of the
amount of the Operating Expenses for the remainder of the calendar year in
which the Commencement Date occurs. Beginning with the Commencement Date, the
monthly rent to be paid by Tenant to Landlord shall be increased by an amount
equal to the estimated amount of Operating Expenses for such year divided by
the number of months remaining in the calendar year in which the Commencement
Date occurs, with an adjustment to be made between the parties at a later date
as hereinafter provided. At least thirty (30) days prior to the commencment of
the first full calendar year of the Term and each other calendar year
thereafter, Landlord shall provide a budget for the Operating Expenses of the
Premises for Tenant’s review, which shall specify any anticipated capital
expenditures during the following year in excess of $10,000. In the event that
Tenant objects to all or any part of the budget, Tenant shall notify Landlord
within thirty (30) days after receipt thereof and the parties shall meet and
attempt to resolve any issues. Failure of Tenant to notify Landlord within
such thirty-day period shall be deemed to be Tenant’s approval of such budget.
Beginning with the first full calendar year of the Term, the monthly rent to be
paid by Tenant to Landlord shall be increased by an amount equal to 1/12th of
the estimated amount of the Operating Expenses for such calendar year, with an
adjustment to be made between the parties at a later date as hereinafter
provided. Landlord may, by written notice to Tenant, from time to time, revise
its estimate for any year, and subsequent payments by Tenant for such year
shall be based upon such revised estimate. As soon as practicable following the
end of each calendar year during the Term of this Lease, Landlord shall submit
to Tenant a statement setting forth the amount of the actual Operating
Expenses, and the amount actually paid by Tenant as Operating Expenses, and the
difference, if any, between the actual




9









 






	 	 	 	Operating Expenses for the calendar year just completed and the estimated
amount of Operating Expenses (on which its rent was based) and which was
paid by Tenant for such year and, if Tenant has not paid the full amount of
actual Operating Expenses, the balance due shall be paid by Tenant to
Landlord within thirty (30) days after Tenant’s receipt of such statement.
In the event that the actual Operating Expenses for the calendar year just
completed was less than the estimated amount of the Operating Expenses (on
which its rent was based) and which was paid by Tenant for such year
Landlord shall give a credit to Tenant in such amount, against the next
payment of Operating Expenses due hereunder. In addition, with respect to
the monthly rent, until Tenant receives Landlord’s estimate for the new
calendar year Tenant’s monthly rent for the new calendar year shall continue
to be paid at the then current rate, but Tenant shall commence payment to
Landlord of the monthly installments of rent on the basis of the new
estimate beginning on the first day of the month following the month in
which Tenant receives such statement.
	 
	 	(c)	 	If Tenant occupies the Premises for less than a full calendar
year during the first or last calendar years of the term hereof, Operating
Expenses for such partial year shall be the actual Operating Expenses for such
period and Tenant shall make payments based upon the Landlord’s estimates as
provided above. At the end of such period, the Landlord shall provide a
statement which shall compare the amounts paid by Tenant to the actual
Operating Expenses for the period just completed and Tenant shall pay any
additional sums due, or Landlord shall refund to Tenant, if the Term has
expired, any sums due the other hereunder using the same method set forth
above.
	 
	 	(d)	 	Landlord’s failure during the Lease Term to prepare and deliver
any statements or bills, or Landlord’s failure to make a demand under this
Paragraph or under any provision of this Lease shall not in any way be deemed
to be a waiver of, or cause Landlord to forfeit or surrender, its rights to
collect any items of additional rent which may have become due pursuant to this
Paragraph during the Term of this Lease, except as otherwise specifically set
forth in this Lease. Tenant’s liability for all additional rent due under this
Paragraph 5 shall survive the expiration or earlier termination of this Lease.
	 
	 	(e)	 	The Building shall be maintained in good order, condition and
repair, ordinary wear and tear excepted, in the manner consistent with
comparable corporate headquarters in Troy, Michigan.






	 	6.	 	Character of Occupancy:






	 	(a)	 	The Premises are to be used only for those purposes set forth
in subparagraph F of Paragraph 1 hereof and no other use. Except for the
Special Use Approval, which Landlord has obtained and paid the expenses
relating thereto, Tenant shall, at its sole cost and expense, obtain all
governmental licenses and permits required to allow Tenant to conduct Tenant’s
Use. The parties acknowledge that a special use permit for the Premises was
adopted by the City of Troy pursuant to Resolution PC-2009-06-051 (the “Special
Use Approval”). Tenant agrees to comply with all applicable laws in connection
with its use of the Premises including, without limitation, the foregoing
Special Use Approval.
	 
	 	(b)	 	Tenant shall not suffer nor permit the Premises nor any part
thereof to be used in any manner, nor anything to be done therein, nor suffer
or permit anything to be brought into or kept therein, which would in any way
(i) make void or voidable any fire or liability insurance policy then in force
with respect to the Building; (ii) make unobtainable from reputable insurance
companies authorized to do business in Michigan any fire insurance with
extended coverage, or liability, boiler or other insurance required to be
furnished by Landlord under the terms of any lease or mortgage to which this
Lease is subordinate at standard rates provided Tenant is not deprived of its
intended use of the Premises; (iii) cause or in Landlord’s reasonable opinion
be likely to cause physical damage to the




10









 






	 	 	 	Building or any part thereof; (iv) constitute a public or private nuisance;
(v) impair, in the reasonable opinion of Landlord, the appearance, character
or reputation of the Building; (vi) discharge objectionable fumes, vapors or
odors into the Building air conditioning system or into the Building flues
or vents not designed to receive them; (vii) impair or interfere with any of
the Building services; or (viii) constitute waste.
	 
	 	(c)	 	Tenant shall not use the Premises nor permit anything to be
done in or about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or which may
hereafter enacted or promulgated. Tenant shall give prompt notice to Landlord
of any notice it receives of the violation of any law or requirement of any
public authority with respect to the Premises or the use or occupation thereof.
Landlord shall give prompt notice to Tenant of any notice it receives relative
to the violation by Tenant of any law or requirement of any public authority
with respect to the Premises or the use or occupation thereof. Further, Tenant
shall not use the Premises or permit anything to be done on or about the
Premises which will in any way conflict with or violate any private covenant,
condition, or restriction recorded against the Building Complex, including,
without limitation, the documents and instruments creating and governing the
condominium for the Building Complex, if applicable.
	 
	 	(d)	 	If the Landlord’s work in connection with making the Premises
Ready for Occupancy shall not be in compliance with applicable law for a period
of ten (10) days after either Tenant has notified Landlord of such
circumstances or Landlord otherwise is made aware of the circumstances, or such
additional time as may be required due to acts of Tenant’s Parties or acts of
god, force majeure, casualty damage, strikes, shortages of labor or materials,
or other causes beyond Landlord’s reasonable control, then (i) Landlord shall,
within ten (10) days of its receipt of such notice of non-compliance, either
make such repair or, if the repair cannot reasonably be completed within such
ten-day period, promptly commence the repair within such period and thereafter
diligently pursue same to completion, and (ii) if Tenant is unable to and does
not use the Premises in its entirety as a result of such violation, Base Rent
hereunder shall thereafter be abated until such time as such violation has been
corrected or Tenant begins using the Premises again, whichever shall first
occur.






	 	7.	 	Services and Utilities:






	 	(a)	 	Landlord agrees to provide janitorial services for the Premises
in accordance with specifications and hours to be agreed upon between Landlord
and Tenant. Landlord shall cause electric current, water and sewer and natural
gas to be supplied to the Premises and measured by separate meters, with one
meter for each utility. Landlord shall furnish such snow removal services to
the Premises as may, be reasonably required by Tenant.
	 
	 	(b)	 	Tenant hereby agrees to pay all charges with respect to
electrical service furnished to or used within the Premises as and when due to
such electrical provider.
	 
	 	(c)	 	Tenant agrees that Landlord shall not be liable for failure to
supply any heating, air conditioning, electrical, janitorial, lighting or other
services during any period when Landlord uses reasonable diligence to supply
such services, or during any period Landlord is required to reduce or curtail
such services pursuant to any applicable laws, rules or regulations, now or
hereafter in force or effect, it being understood that Landlord may
discontinue, reduce or curtail such services, or any of them (either
temporarily or permanently), at such times as it may be necessary by reason of
accident, unavailability of employees, repairs, alterations, improvements,
strikes, lockouts, riots, acts of God, application of applicable laws,
statutes, rules and regulations, or due to any other happening beyond the
control of Landlord. In the event of any such interruption, reduction or
discontinuance of Landlord’s services (either temporary or permanent), except
for the abatement described below,




11









 






	 	 	 	Landlord shall not be liable for damages to persons or property as a result
thereof, nor shall the occurrence of any such event in any way be construed
as an eviction of Tenant or cause or permit an abatement, reduction or
setoff of rent, or operate to release Tenant from any of Tenant’s
obligations hereunder.
	 
	 	 	 	Notwithstanding the foregoing, if any utilities are interrupted or
discontinued due solely to the negligence of Landlord for a period of ten
(10) days after Tenant has notified Landlord of such interruption, or such
additional time as may be required due to acts of Tenant’s Parties or acts
of god, force majeure, casualty damage, strikes, shortages of labor or
materials, or other causes beyond Landlord’s reasonable control, and Tenant
is unable to and does not use, the Premises in its entirety as a result of
such interruption or discontinuance, Base Rent hereunder shall thereafter be
abated until such time as such utilities are restored or Tenant begins using
the Premises again, whichever shall first occur.
	 
	 	(d)	 	Whenever heat generating machines or equipment or excessive
lighting (i.e., that which exceeds the typical lighting level used by office
tenants in the area in which the Building is located) are used by Tenant in the
Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises in the event Landlord’s independent
consulting engineer determines same are reasonably necessary as a result of
Tenant’s use of lights or equipment which generate heat loads in excess of
those for which the HVAC system is designed and the cost therefor, including
the cost of installation, operation and maintenance thereof, shall be prepaid
by Tenant to Landlord upon demand by Landlord.






	 	8.	 	Quiet Enjoyment:





     Landlord warrants and agrees to defend Tenant in the quiet enjoyment and possession of the
Premises from any acts of the Landlord, and all parties claiming by or through the Landlord, during
the term of this Lease so long as Tenant complies with the provisions hereof. In the event of any
transfer or transfers of Landlord’s interest in the Premises or in the real property of which the
Premises are a part, other than a transfer for security purposes only, the transferor shall be
automatically relieved of any and all obligations and liabilities on the part of Landlord accruing
from and after the date of such transfer.




	 	9.	 	Maintenance and Repairs:






	 	(a)	 	Subject to reimbursement as a part of Operating Expenses,
Landlord shall make all necessary repairs and replacements to the heating, air
conditioning and electrical systems located in the Building, and to the common
areas, including parking areas, and Landlord shall also make all repairs to the
Premises which are structural in nature; provided, however, that Tenant shall
make all repairs and replacements arising from its act, neglect or default and
that of its agents, servants, invitees and employees.
	 
	 	 	 	In the event that the Landlord shall deem it necessary, or be required by
any governmental authority to repair, alter, remove, reconstruct or improve
any part of the Premises or of the Building (unless the same result from
Tenant’s act, neglect, default or mode of operation in which event Tenant
shall make all such repairs, alterations and improvements), such work shall
be at Landlord’s sole cost and expense if due to a violation of law if such
law existed on or before the Commencement Date or as a part of Operating
Expenses if due to the adoption of a law or an amendment to law after the
Commencement Date, then the same shall be made by Landlord with reasonable
dispatch, and should the making of such repairs, alterations or improvements
cause any interference with Tenant’s use of the Premises, such interference
shall not relieve Tenant from performance of its obligations hereunder.
	 
	 	 	 	Notwithstanding the foregoing, if the Landlord fails to make repairs due
solely to the negligence of Landlord for a period of ten (10) days after
Tenant has notified Landlord of such disrepair, or such additional time as




12









 






	 	 	 	may be required due to acts of Tenant’s Parties or acts of god, force
majeure, casualty damage, strikes, shortages of labor or materials, or other
causes beyond Landlord’s reasonable control, and Tenant is unable to and
does not use, the Premises in its entirety as a result of such repair issue,
Base Rent hereunder shall thereafter be abated until such time as such
repair is completed or Tenant begins using the Premises again, whichever
shall first occur.
	 
	 	(b)	 	Landlord, at Tenant’s sole cost and expense as a part of
Operating Expenses, except as excluded from such definition above, shall
maintain the Premises in good order, condition and repair including the
interior surfaces of ceilings, walls and floors, all doors, and interior glass
partitions or glass surfaces. Landlord shall have no liability to Tenant for
any damage, inconvenience or interference with the use of the Premises by
Tenant as a result of performing any such work.
	 
	 	(c)	 	Landlord and Tenant shall each do all acts required to comply
with all applicable laws, ordinances, regulations and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.






	 	10.	 	Alterations and Additions:






	 	(a)	 	Tenant shall make no alterations, additions or improvements to
the Premises (each an “Alteration”) or any part thereof without obtaining the
prior written consent of Landlord; provided, however, Tenant shall be entitled
to make cosmetic, non-structural alterations, additions, modifications and
improvements to the Premises, not exceeding $50,000 in each instance, which do
not materially adversely affect the Building systems without the requirement of
Landlord’s consent, but with notice to Landlord. Neither Landlord consent nor
notice to Landlord shall be needed to inspect, install, repair, remove or
replace, from time to time, Tenant’s FF&E. Landlord may impose, as a condition
to the aforesaid consent, such requirements as Landlord may deem necessary in
its reasonable judgment including, without limitation, the manner in which the
work is done, a right to require Tenant to use Landlord’s contractor and the
times during which it is to be accomplished, provided that Tenant shall not be
required to use Landlord’s contractor to the extent such work involves only
Tenant’s FF&E and, with respect to all other Alterations, if performed by the
Landlord’s contractor, the Landlord shall follow the same procedures it is
required to follow when making the Premises Ready for Occupancy pursuant to the
provisions of paragraph 20 hereof. In the event that Tenant is entitled to
construct the Expansion, such Expansion will not require a separate approval by
the Landlord under this subparagraph 10(a), subject to Tenant’s compliance with
the other terms of this paragraph and the provisions of this Lease. Tenant
further agrees not to connect with Building systems, including electric wires,
water pipes, fire safety and mechanical systems, any apparatus, machinery or
device without the prior written consent of Landlord.
	 
	 	(b)	 	All Alterations (whether performed with or without Landlord’s
consent as provided herein), shall be deemed a part of the real estate and the
property of Landlord and shall remain upon and be surrendered with the Premises
as a part thereof without molestation, disturbance or injury at the end of said
Term, whether by lapse of time or otherwise, unless Landlord notifies Tenant
otherwise, in which event Tenant shall promptly remove, at its sole cost and
expense, such alterations and additions and restore the Premises to their
condition prior to the making of the same, reasonable wear and tear excepted.
All such removal, whether required or permitted by Landlord, shall be at
Tenant’s sole cost and expense, and Tenant shall restore the Premises to the
condition in which the Premises were prior to the making of the same,
reasonable wear and tear excepted. All Tenant’s FF&E including any movable
partitions, machines and equipment which are installed in the Premises by or
for the account of Tenant, without expense to Landlord, and can be removed
without permanent structural damage to or defacement of the Building or the
Premises, and all furniture, furnishings and other articles of personal
property owned by Tenant and located in the Premises (all of which are herein
called “Tenant’s Property”), shall be and remain the property of




13









 






	 	 	 	Tenant and may be removed by it at any time during the Term of this Lease.
However, if any of Tenant’s Property is removed, Tenant shall repair or pay
the cost of repairing any damage to the Building or the Premises resulting
from such removal. All additions or improvements which are to be surrendered
with the Premises shall be surrendered with the Premises, as a part thereof,
at the end of the Term or the earlier termination of this Lease.
	 
	 	(c)	 	If Landlord authorizes persons requested by Tenant to perform
any Alterations or repairs to the Premises, then prior to the commencement of
any such work, Tenant shall, on request of Landlord, deliver to Landlord
certificates issued by insurance companies qualified to do business in the
State of Michigan evidencing that Workers’ Compensation, public liability
insurance and property damage insurance, all in amounts, with companies and on
forms reasonably satisfactory to Landlord, are in force and effect and
maintained by all such contractors and subcontractors engaged by Tenant to
perform such work. All such policies shall name Landlord as an additional
insured. Each such certificate shall provide that the same may not be cancelled
or modified without thirty (30) days’ prior written notice to Landlord.
	 
	 	(d)	 	Tenant, at its sole cost and expense, shall cause any permitted
Alterations, decorations, installations, additions or improvements in or about
the Premises to be performed in compliance with all applicable requirements of
insurance bodies having jurisdiction, and in such manner as not to interfere
with, delay, or impose any additional expense upon Landlord in the
construction, maintenance or operation of the Building, and so as to maintain
harmonious labor relations in the Building.






	 	11.	 	Entry by Landlord:





          Landlord and its agents shall have the right to enter the Premises at all reasonable times and
upon reasonable notice for the purpose of examining or inspecting the same, to supply any services
to be provided by Landlord for Tenant hereunder, to show the same to prospective purchasers of the
Building, to make such alterations, repairs, improvements or additions to the Premises or to the
Building of which they are a part as Landlord may deem necessary or desirable, and to show the same
to prospective tenants of the Premises (provided that in the event of a bona fide emergency,
Landlord may enter the Premises without advance notice solely for the purpose of taking emergency
action). Tenant shall have the right to exclude Landlord from entering into portions of the
Premises which include proprietary information or trade secrets unless Landlord shall have signed a
confidentiality agreement reasonably acceptable to Landlord and Tenant. Tenant hereby waives any
claim for damages for any injury to, or interference with, Tenant’s business, any loss of occupancy
or quiet enjoyment of the Premises, or any other loss occasioned by such entry or repair or service
work which Landlord deems to be reasonably necessary. Landlord may for the purpose of supplying
scheduled janitorial services, enter the Premises by means of a master key without liability to
Tenant and without affecting this Lease. If, during the last sixty (60) days of the Term hereof,
Tenant shall have removed substantially all of its property from the Premises, Landlord may
immediately enter and alter, renovate and redecorate the Premises without elimination or abatement
of rent or incurring liability to Tenant for any compensation. Tenant shall not, without the prior
consent of Landlord, change the locks or install additional locks on any entry door or doors to the
Premises.





	 	12.	 	Construction Liens:





          Except for work undertaken by Landlord and to be paid for by Landlord, Tenant shall pay or
cause to be paid all costs for work done by Tenant or caused to be done by Tenant on the Premises
of a character which will or may result in liens on Landlord’s interest therein and Tenant will
keep the Premises free and clear of all mechanic’s liens and other liens on account of work done
for Tenant or persons claiming under it. Tenant hereby agrees to indemnify, defend and save
Landlord harmless of and from all liability, loss, damage, costs or expenses, including reasonable
attorneys’ fees, incurred on account of any claims of any nature whatsoever for work performed for,
or materials or supplies furnished to Tenant, including lien claims of laborers, material men or
others. Should any such liens be filed or recorded against the Premises with respect to work done
or for materials supplied to or on behalf of Tenant or any action affecting the title thereto be
commenced, Tenant shall cause such liens to be removed of record within five (5) days after notice
from Landlord or any other source. If Tenant desires to contest any such claim of lien, it shall
furnish Landlord with security reasonably




14









 







satisfactory to Landlord which equals at least 200 percent of the amount of the claim, plus
estimated costs and interest and if a final judgment establishing the validity or existence of any
lien for any amount is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be
in default in paying any charge for which such a mechanic’s lien or suit to foreclose such a lien
has been recorded or filed and shall not have given Landlord security as aforesaid, Landlord may
(but without being required to do so) pay such lien or claim and any costs, and the amount so paid,
together with reasonable attorneys’ fees incurred in connection therewith, and interest on such
sums paid by Landlord at the Default Rate from the date of payment until reimbursed by Tenant shall
be immediately due from Tenant to Landlord. In addition, any failure by Tenant to comply with the
provisions of this Paragraph shall be deemed an Event of Default entitling Landlord to pursue all
remedies available to Landlord pursuant to the terms of this Lease or otherwise.





	 	13.	 	Damage to Property, Injury to Persons:






	 	(a)	 	Except for claims arising due to the negligence of Landlord,
Tenant, as a material part of the consideration to be rendered to Landlord
under this Lease, hereby waives all claims of liability Tenant or Tenant’s
successors or assigns may have against Landlord, and Tenant hereby indemnifies
and agrees to hold Landlord harmless from and to defend Landlord against any
and all claims of liability for any injury or damage to any person or property
whatsoever: (1) occurring in, or about the Premises or any part thereof; and
(2) occurring in, or about the Building Complex. Except for claims arising due
to the negligence of Landlord, Tenant further indemnifies and agrees to hold
Landlord harmless from and against any and all claims arising from any breach
or default in the performance of any obligation on Tenant’s part to be
performed under the terms of this Lease, or arising from any act or negligence
of Tenant, or any of its agents, contractors, employees or invitees, from and
against all costs, attorneys’ fees, expenses and liabilities incurred in or
about any such claim or any action or proceeding brought thereon.
	 
	 	(b)	 	Landlord shall not be liable to Tenant for any damage by or
from any act of any owner or occupant of adjoining or contiguous property. To
the extent not covered by normal fire and extended coverage insurance, Tenant
agrees to pay for all damage to the Building Complex, caused by Tenant’s misuse
or neglect of the Premises or any portion of the Building Complex.
	 
	 	(c)	 	Except for claims arising due to the negligence of Landlord,
neither Landlord nor its agents shall be liable for any damage to property
entrusted to Landlord, its agents or employees or the building manager, if any,
nor for the loss or damage to any property by theft or otherwise, by any means
whatsoever, nor for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, sprinkler system
leakage, water or rain which may leak from any part of the Building or from the
pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place or resulting from dampness or any other
cause whatsoever; provided, however, nothing contained herein shall be
construed to relieve Landlord from liability for any personal injury resulting
from its negligence or that of its agents, servants or employees. Landlord or
its agents shall not be liable for interference with the lights, view or other
incorporeal hereditaments, nor, except as otherwise provided herein, relating
to the construction of the improvements to make the Premises Ready for
Occupancy, shall Landlord be liable for any latent defect in the Premises or in
the Building. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the Building or of defects therein or in the
fixtures or equipment.
	 
	 	(d)	 	In case any action or proceeding is brought against Landlord or
Tenant by reason of any obligation on their respective parts to be performed
under the terms of this Lease, or arising from any of their acts or negligence
of them, respectively, or of their agents or employees, such party, upon notice
from the other party shall defend the same at its expense by counsel reasonably
satisfactory to the party giving such notice.




15









 












	 	14.	 	Insurance:






	 	(a)	 	Tenant shall procure and maintain in effect at all times during
the Term comprehensive general liability insurance, naming the Landlord and any
mortgagee of the Building as an additional insured, with companies and in a
form satisfactory to Landlord, in the amount of not less than Two Million and
00/1OOths Dollars ($2,000,000.00) per occurrence and with excess liability
coverage (so-called umbrella insurance) of not less than Two Million and
00/1OOths Dollars ($2,000,000.00) and shall deliver said policies or
certificates to Landlord prior to initial occupancy and continuously maintain
such coverage thereafter. Such insurance shall be provided by companies that
maintain at least an A, V rating from AM Best. Landlord shall have the right,
upon not less than thirty (30) days’ prior written notice, if required by
Landlord’s mortgagee, to raise the limits hereinabove set forth not more often
than annually during the Term of this Lease. Landlord may, at its option,
procure the same for the account of Tenant, and the cost thereof shall be paid
to Landlord upon receipt by Tenant of bills therefor plus interest at the
Default Rate.
	 
	 	(b)	 	Tenant shall procure and maintain at its own cost during the
Term of this Lease and any extension hereof fire and extended coverage
Insurance on the property of Tenant.
	 
	 	(c)	 	Landlord shall at all times during the Term procure and
maintain, subject to reimbursement as a part of Operating Expenses, “all-risk”
or causes of loss-special form property insurance in the amount not less than
ninety percent (90%) of the insurable replacement cost covering the Building
and such other insurance as may be required by Landlord’s mortgagee.
	 
	 	(d)	 	Each party agrees to use its best efforts to include in each of
its policies insuring against loss, damage or destruction by fire or other
casualty (insuring the Building and Landlord’s Property therein and rental
value thereof, in the case of Landlord, and insuring Tenant’s Property and
business interest in the Premises [business interruption insurance] in the case
of Tenant), a waiver of the insurer’s right of subrogation against the other
party, or if such waiver should be unobtainable or unenforceable (i) an express
agreement that such policy shall not be invalidated if the insured waives the
right of recovery against any party responsible for a casualty covered by the
policy before the casualty, or (ii) any other form of permission for the
release of the other party. If such waiver, agreement or permission shall not
be, or shall cease to be, obtainable without additional charge or at all, the
insured party shall so notify the other party promptly after learning thereof.
In such case, if the other party shall so elect and shall pay the insurer’s
additional charge therefor, such waiver, agreement or permission shall be
included in the policy, or the other party shall be named as an additional
insured in the policy. Each such policy which shall so name a party hereto as
an additional insured shall contain, if obtainable, agreements by the insurer
that the policy will not be cancelled without at least thirty (30) days’ prior
notice to both insureds and that the act or omission of one insured will not
invalidate the policy as to the other insured. The failure by Tenant, if named
as an additional insured under a policy obtained by Landlord, promptly to
endorse to the order of Landlord, without recourse, any instrument for the
payment of money under or with respect to the policy of which Landlord is the
owner or primary insured, shall be deemed a default under this Lease.






	 	15.	 	Damage or Destruction to Building:






	 	(a)	 	In the event the Premises or the Building are damaged by fire
or other insured casualty and the insurance proceeds have been made available
therefor by the holder or holders of any mortgages or deeds of trust covering
the Building, the damage shall be repaired by and at the expense of Landlord to
the extent of such insurance proceeds available therefor, provided such repairs
and restoration can, in Landlord’s reasonable opinion, be made within one
hundred eighty (180) days after the occurrence of such damage without the
payment of overtime or other premiums, and until such repairs and restoration
are completed the rent shall be abated in proportion to the part of the
Premises which is unusable by Tenant in the conduct of its business (but there
shall be no




16









 






	 	 	 	abatement of rent by reason of any portion of the Premises being unusable
for a period equal to ten [10] business days or less). Landlord agrees to
notify Tenant within thirty (30) days after such casualty if it estimates
that it will be unable to repair and restore the Premises within said one
hundred eighty (180) day period. Such notice shall set forth the approximate
length of time Landlord estimates will be required to complete such repairs
and restoration. Notwithstanding anything to the contrary contained herein,
if Landlord cannot or estimates it cannot make such repairs and restoration
within said one hundred eighty (180) day period, then Tenant may, by written
notice to Landlord, cancel this Lease as of the date of the occurrence of
such damage, provided such notice is given to Landlord within fifteen (15)
days after Landlord notifies Tenant of the estimated time for completion of
such repairs and restoration. Except as provided in this Paragraph 15, there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant’s business or property arising from
the making of any such repairs, alterations or improvements in or to
fixtures, appurtenances and equipment. Tenant understands that Landlord will
not carry insurance of any kind on Tenant’s furniture and furnishings or on
any fixtures or equipment removable by Tenant under the provisions of this
Lease, and that Landlord shall not be obligated to repair any damage thereto
or replace the same. Landlord shall not be required to repair any injury or
damage by fire or other cause, or to make any repairs or replacements of
improvements installed in the Premises by or for Tenant.
	 
	 	(b)	 	In case the Building shall be so injured or damaged, whether by
fire or otherwise (though the Premises can be repaired within said one hundred
eighty [180] days) that Landlord, within thirty (30) days after the happening
of such injury, shall decide not to reconstruct or rebuild the Building, then
notwithstanding anything contained herein to the contrary, upon notice in
writing to that effect given by Landlord to Tenant within said thirty (30)
days, Tenant shall pay the rent, properly apportioned up to date of such
occurrence, this Lease shall terminate from the date of delivery of said
written notice, and both parties hereto shall be freed and discharged from all
further obligations hereunder.






	 	16.	 	Condemnation:






	 	(a)	 	If the whole of the Premises or so much thereof as to render
the balance unusable by Tenant for the proper conduct of its business shall be
taken under power of eminent domain or transferred under threat thereof, then
this Lease, at the option of either Landlord or Tenant exercised by either
party giving notice to the other of such termination within thirty (30) days
after such conveyance or taking possession whichever is earlier, shall
forthwith cease and terminate and the rent shall be duly apportioned as of the
date of such taking or conveyance. No award for any partial or entire taking
shall be apportioned, and Tenant hereby assigns to Landlord any award which may
be made in such taking or condemnation, together with any and all rights of
Tenant now or hereafter arising in or to the same or any part thereof;
provided, however, that nothing contained herein shall be deemed to give
Landlord any interest in or to require Tenant to assign to Landlord any award
made to Tenant for the taking of personal property and fixtures belonging to
Tenant and/or for expenses of moving to a new location. In the event of a
partial taking which does not result in a termination of this Lease, rent shall
be reduced in proportion to the reduction in the size of the Premises so taken
and this Lease shall be modified accordingly. Promptly after obtaining
knowledge thereof, Landlord or Tenant, as the case may be, shall notify the
other of any pending or threatened condemnation or taking affecting the
Premises or the Building.
	 
	 	(b)	 	If all or any portion of the Premises shall be condemned or
taken for governmental occupancy for a limited period, not exceeding thirty
(30) days, this Lease shall not terminate and Tenant shall be entitled to
receive the entire award therefor (whether paid as damages, rent or otherwise)
unless the period of governmental occupancy extends beyond the expiration of
this Lease, in which case Landlord shall be entitled to such part of such award
as shall be properly allocable to the cost of






17











 






	 	 	 	restoration of the Premises to the extent any such award is specifically made for
such purpose, and the balance of such award shall be apportioned between
Landlord and Tenant as of the date of such expiration. Provided however, that
Tenant shall remain responsible for all payment and performance obligations set
forth in this Lease. If the termination of such governmental occupancy is prior
to the expiration of this Lease, Tenant shall, to the extent an award has been
made for such purpose, restore the Premises as nearly as possible to the
condition in which they were prior to the condemnation or taking.






	 	17.	 	Assignment and Subletting:





          Tenant covenants not to assign or transfer this Lease or sublet the Premises or any part
thereof or interest therein (collectively, a “Transfer”) or hypothecate, or mortgage the same or
any part thereof or interest therein or use or permit them to be used for any purpose other than
previously mentioned without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. A Transfer or other action in violation of the
foregoing, at Landlord’s option, shall be void and/or shall constitute an Event of Default under
this Lease. Notwithstanding anything contained in this Paragraph to the contrary, Tenant, its
sucessors and assigns, shall have the right to assign or Transfer this Lease or sublease the
Premises, or any part thereof, without Landlord’s consent, to an Affiliate (a “Permitted Assignee”)
upon at least twenty (20) days prior written notice to Landlord, and provided further that said
Affiliate is not in default under any other lease for space in a property that is managed or owned
by Landlord or any of its affiliates and Tenant remains fully and primarily liable for the payment
of rent and for the performance of all other obligations of Tenant contained in this Lease unless,
and only in the event, the original Tenant entity ceases to exist as a distinct legal entity from
and after the date of transfer (a “Permitted Transfer”). For purposes of this Paragraph, the term
“Affiliate” shall also include, by virtue of a bona fide, arms-length business transaction and not
in liquidation, (i) the successor to Tenant by merger or (ii) the purchaser of all or substantially
all of the capital stock or assets of Tenant, or (iii) other business reorganization.




          Except for a Permitted Transfer, if Tenant desires to Transfer this Lease or any interest
herein, then at least thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed Transfer, Tenant shall submit to Landlord: (i) a statement
containing the name and address of the proposed assignee or subtenant; (ii) such financial
information with respect to the proposed assignee or subtenant as Landlord shall reasonably
require; (iii) the type of use proposed for the Premises; (iv) all of the principal terms of the
proposed assignment or subletting; and (v) four (4) originals of the assignment or sublease on a
form approved by Landlord and four (4) executed originals of the Landlord’s form of Consent to
Sublease or Assignment and Assumption of Lease and Consent.




          At any time within twenty (20) business days after Landlord’s receipt of all of the
information and documents described above, Landlord may, at its option by written notice to Tenant,
elect to: (a) sublease the Premises or the portion thereof proposed to be sublet by Tenant upon
the same terms as those offered to the proposed subtenant unless the proposed subtenant is a
Permitted Assignee; (b) take an assignment of the Lease upon the same terms as those offered to the
proposed assignee; or (c) terminate the Lease in its entirety or as to the portion of the Premises
proposed to be assigned or sublet, with a proportionate adjustment in the Base Rent payable
hereunder if the Lease is terminated as to less than all of the Premises.




          Fifty percent (50%) of all sums or other economic consideration received by Tenant in
connection with such assignment or subletting, whether denominated as rental or otherwise, which
exceed in the aggregate, the total sum which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to less than all of the Premises under a sublease) (the
“Profit”) shall be paid to Landlord.




          Except for the Permitted Transfer described in the first paragraph of this Section 20,
regardless of Landlord’s consent, which consent shall not be unreasonably withheld, conditioned or
delayed, 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 unless otherwise agreed by Landlord in writing. 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



18









 






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.




          In the event Tenant shall assign this Lease or sublet the 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.	 	Estoppel Certificate:





          Tenant further agrees at any time and from time to time, on or before ten (10) days after
written request by Landlord, to execute, acknowledge and deliver to Landlord an estoppel
certificate certifying (to the extent it believes the same to be true) that this Lease is
unmodified and in full force and effect (or if there have been modifications, that the same is in
full force and effect as modified, and stating the modifications), that there have been no defaults
thereunder by Landlord or Tenant (or if there have been defaults, setting forth the nature
thereof), and the date to which the rent and other charges have been paid, if any, it being
intended that any such statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser of all or any portion of Landlord’s interest herein, or a holder or
prospective holder of any mortgage encumbering any portion of the Premises. Tenant’s failure to
deliver such statement within such time shall be a default under this Lease and shall be conclusive
upon Tenant that:





	 	(a)	 	This Lease is in full force and effect without modification
except as may be represented by Landlord;
	 
	 	(b)	 	There are no uncured defaults in Landlord’s performance;
	 
	 	(c)	 	Not more than one (1) month’s rent has been paid in advance; and
	 
	 	(d)	 	The amount of any security deposit paid to, and held by, Landlord.






	 	19.	 	Default:






	 	(a)	 	The following events (herein referred to as an “Event of
Default”) shall constitute defaults of Tenant hereunder:






	 	(1)	 	Tenant shall default in the due and punctual
payment of rent, or any other amounts payable hereunder, and such
default shall continue for five (5) days after receipt of written
notice from Landlord;
	 
	 	(2)	 	This Lease or the estate of Tenant hereunder
shall be transferred to or shall pass to or devolve upon any other
person or party in violation of this Lease;
	 
	 	(3)	 	This Lease or the Premises or any part thereof
shall be taken upon execution or by other process of law directed
against Tenant, or shall be taken upon or subject to any attachment at
the instance of any creditor or claimant against Tenant, and said
attachment shall not be discharged or disposed of within fifteen (15)
days after the levy thereof;
	 
	 	(4)	 	Tenant shall file a petition in bankruptcy or
insolvency or for reorganization or arrangement under the bankruptcy
laws of the United States or under any insolvency act of any state, or
shall voluntarily take advantage of any such law or act by answer or
otherwise, or shall be dissolved or shall make an assignment for the
benefit of creditors, unless such action will permit Tenant to continue
performance of this Lease;
	 
	 	(5)	 	Involuntary proceedings under any such
bankruptcy law or insolvency act or for the dissolution of Tenant shall
be instituted against Tenant, or a receiver or trustee shall be
appointed of all or substantially all of the property of Tenant, and
such proceeding shall not be dismissed or such receivership or
trusteeship vacated




19









 






	 	 	 	within sixty (60) days after such institution or appointment unless
such action will permit Tenant to continue performance of this Lease;






	 	(6)	 	Tenant shall abandon the Premises for thirty
(30) consecutive days;
	 
	 	(7)	 	The failure by Tenant to furnish Landlord any
Subordination, Non-Disturbance and Attornment Agreement or Estoppel
Certificate requested by Landlord within the time period prescribed
herein; and
	 
	 	(8)	 	Tenant shall fail to perform any of the other
agreements, terms, covenants or conditions hereof on Tenant’s part to
be performed, and such non-performance shall continue for a period of
thirty (30) days after notice thereof by Landlord to Tenant, or if such
performance cannot be reasonably had within such thirty (30) day
period, Tenant shall not in good faith have commenced such performance
within such thirty (30) day period and shall not diligently proceed
therewith to completion within an additional period of sixty (60) days.






	 	(b)	 	Upon the occurrence of an Event of Default, Landlord shall have
the right, at its election, then or at any time thereafter and while any such
Event of Default shall continue, either:






	 	(1)	 	To give Tenant written notice of Landlord’s
intention to terminate this Lease on the date of such given notice or
on any later date specified therein, whereupon on the date specified in
such notice, Tenant’s right to possession of the Premises shall cease
and this Lease shall thereupon be terminated, except as to Tenant’s
liability, as if the expiration of the term fixed in such notice were
the end of the term herein originally demised; or
	 
	 	(2)	 	To re-enter and take possession of the Premises
or any part thereof, and repossess the same as Landlord’s former estate
and expel Tenant and those claiming through or under Tenant, and remove
the effects of both or either, using such force for such purposes as
may be reasonably necessary, without being liable for prosecution
thereof, without being deemed guilty of any manner of trespass, and
without prejudice to any remedies for arrears of rent or preceding
breach of covenants or conditions. Should Landlord elect to re-enter as
provided in this Paragraph 19(b)(2) or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by
law, Landlord may, from time to time, without terminating this Lease,
relet the Premises or any part thereof in Landlord’s or Tenant’s name,
but for the account of Tenant, for such term or terms (which may be
greater or less than the period which would otherwise have constituted
the balance of the term of this Lease) and on such conditions and upon
such other terms (which may include concessions of free rent and
alteration and repair of the Premises) as Landlord, in its sole
discretion, may determine, and Landlord may collect and receive the
rents therefor. Landlord shall in no way be responsible or liable for
any failure to relet the Premises, or any part thereof, or for any
failure to collect any rent due upon such reletting. No such reentry or
taking possession of the Premises by Landlord shall be construed as an
election on Landlord’s part to terminate this Lease unless a written
notice of such intention be given to Tenant. No notice from Landlord
hereunder or under a forcible entry and detainer statute or similar law
shall constitute an election by Landlord to terminate this Lease unless
such notice specifically so states. Landlord reserves the right
following any such re-entry and/or reletting to exercise its right to
terminate this Lease by giving Tenant such written notice, in which
event this Lease will terminate as specified in said notice.




20









 












	 	(c)	 	In the event that Landlord does not elect to terminate this
Lease as permitted in Paragraph 19(b)(1) hereof, but on the contrary, elects to
take possession as provided in Paragraph 19(b)(2), Tenant shall pay to
Landlord: (i) the rent and other sums as herein provided, which would be
payable hereunder if such repossession had not occurred, less (ii) the net
proceeds, if any, of any reletting of the Premises after deducting all
Landlord’s expenses in connection with such reletting, including, but without
limitation, all repossession costs, brokerage commissions, legal expenses,
attorneys’ fees, expenses of employees, alteration and repair costs and
expenses of preparation for such reletting. If, in connection with any
reletting, the new lease term extends beyond the existing term, or the premises
covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the expenses
incurred in connection therewith as provided aforesaid will be made in
determining the net proceeds from such reletting.
	 
	 	(d)	 	In the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant as damages for loss of the bargain
and not as a penalty, an aggregate sum which, at the time of such termination
of this Lease, represents the excess, if any, of the aggregate of the rent and
all other sums payable by Tenant hereunder that would have accrued for the
balance of the term over the aggregate rental value of the Premises (such
rental value to be computed on the basis of a tenant paying not only a rent to
Landlord for the use and occupation of the Premises, but also such other
charges as are required to be paid by Tenant under the terms of this Lease) for
the balance of such term, both discounted to present worth at the rate of three
percent (3%) per annum.
	 
	 	(e)	 	Suit or suits for the recovery of the amounts and damages set
forth above may be brought by Landlord, from time to time, at Landlord’s
election and nothing herein shall be deemed to require Landlord to await the
date whereon this Lease or the Term hereof would have expired by limitation had
there been no such default by Tenant or no such termination, as the case may
be. Each right and remedy provided for in this Lease shall be cumulative and
shall be in addition to every other right or remedy provided for in this Lease
or now or hereafter existing at law or in equity or by statute or otherwise,
including, but not limited to, suits for injunctive relief and specific
performance. The exercise or beginning of the exercise by Landlord of any one
or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any and all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All costs incurred by Landlord in
connection with collecting any amounts and damages owing by Tenant pursuant to
the provisions of this Lease or to enforce any provision of this Lease,
including reasonable attorneys’ fees from the date any such matter is turned
over to an attorney, shall also be recoverable by Landlord from Tenant.
	 
	 	(f)	 	No failure by Landlord to insist upon the strict performance of
any agreement, term, covenant or condition hereof or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of
any such breach of such agreement, term, covenant or condition. No agreement,
term, covenant or condition hereof to be performed or complied with by Tenant,
and no breach thereof, shall be waived, altered or modified except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease, but each and every agreement, term, covenant and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any unilateral termination of
this Lease, this Lease shall continue in force and effect as to any provisions
hereof which require observance or performance of Landlord or Tenant subsequent
to termination.
	 
	 	(g)	 	Any amounts paid by either party to cure any defaults of the
other hereunder, shall, if not repaid by the other party within ten (10) days
of demand by the party paying such amount, thereafter bear interest at the
Default Rate, until paid.





21









 











	 	(h)	 	Neither Tenant’s interest in this Lease, nor any estate hereby
created in Tenant, nor any interest herein or therein, shall pass to any
trustee or receiver or assignee for the benefit of creditors or otherwise by
operation of law, except as may be specifically be provided pursuant to the
federal Bankruptcy Code.
	 
	 	 	 	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 (3) months’ rent, including all other charges and additional
rent payable by Tenant hereunder, 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 Premises will not be detrimental to the other
tenants or Landlord. In a reorganization under Chapter 11 of the federal
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
it shall be deemed to have rejected and terminated this Lease.
	 
	 	 	 	Upon the filing of a petition by or against Tenant under the Bankruptcy
Code, Tenant, as debtor and as debtor in possession, and any trustee who may
be appointed agree as follows: (i) to perform each and every obligation of
Tenant under this Lease, until such time as this Lease is rejected by order
of the United States Bankruptcy Court; and, (ii) to pay monthly in advance
on the first day of each month as reasonable compensation for use and
occupancy of the Premises an amount equal to all rent, additional rent, and
other charges otherwise due pursuant to this Lease and (iii) to reject or
assume this Lease within sixty (60) days of the filing of such petition
under Chapter VII of the federal Bankruptcy Code or within one hundred
twenty (120) days of the filing of a petition under any other Chapter; and
(iv) to give Landlord at least forty-five (45) days’ prior written notice of
any proceeding relating to any assumption of this Lease, and (v) to give at
least thirty (30) days’ prior written notice of any abandonment of the
Premises; any such abandonment to be deemed a rejection of this Lease.
	 
	 	 	 	No default of this Lease by Tenant, either prior to or subsequent to the
filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by Landlord.
	 
	 	(i)	 	Landlord shall not be in default under this Lease unless
Landlord fails to perform its obligations hereunder within a reasonable time,
but in no event later than sixty (60) days after written notice by Tenant to
Landlord and to Landlord’s Mortgagee whose name and address shall have been
furnished to Tenant in writing and specifying how Landlord has failed to
perform such obligations and the act required to cure the same; provided,
however, that if the nature of Landlord’s obligation is such that more than
sixty (60) days are required for performance, Landlord shall not be in default
if Landlord commences performance within such sixty (60) day period and
thereafter diligently prosecutes the same to completion. In no event shall
Tenant have the right to terminate this Lease as a result of Landlord’s default
and Tenant’s remedies shall be limited to damages.






	 	20.	 	Completion of Premises:






	 	(a)	 	Landlord has agreed to complete the Premises in accordance with
plans and specifications and the construction schedule prepared by Landlord and
approved by the parties, a copy of which is attached hereto as Exhibit




22









 






	 	 	 	C. Such work shall include the replacement of the dead trees (which shall be
at Landlord’s sole cost and expense and not part of the Allowance, as
defined below) and all work in the loading area of the Premises (including
screening such area with trees). Promptly after execution of this Lease,
Landlord will cause to be prepared design drawings with respect to the
improvements to be installed in the Premises. After the design drawings have
been completed, Landlord shall submit same to Tenant for Tenant’s approval.
Tenant hereby agrees to approve said plans or, in lieu thereof, advise
Landlord of any comment which Tenant may have with respect to the plans,
within ten (10) business days after receipt of said plans from Landlord. In
the event Tenant fails to approve or otherwise comment on said drawings
within the foregoing time period, then for each day of delay by Tenant, the
obligation of Landlord to deliver possession of the Premises Ready for
Occupancy shall be likewise extended for an additional day. After the design
drawings have been approved by Tenant in the foregoing manner, Landlord
shall cause Kirco Manix Construction, LLC, its contractor, to obtain third
party bids for the first phase of work to complete the Premises. The project
shall be performed on an “open book” basis. Tenant shall be advised of the
cost of such cost of construction. Each item with a cost of $10,000 or more
shall be bid to a minimum of three contractors, Landlord shall make a
recommendation to Tenant of the bid it favors and the reasons thereof, and
Tenant will either confirm the recommendation or select one of the other
bids. The foregoing shall be repeated for each phase of construction. Tenant
shall have the right, during the construction process, to be advised as to
the amount of the various subcontracts entered into by Landlord’s contractor
so that Tenant can continue to monitor the cost of construction. In
connection with the completion of the Premises, Landlord shall contribute
the sum of One Million One Hundred Ninety-six Thousand Seven Hundred
($1,196,700.00) Dollars (i.e., 47,868 square feet times Twenty-five ($25)
Dollars) (the “Allowance”) for the installation of the improvements to be
installed by Landlord. In the event the budget for the improvements exceeds
the Allowance (the “Tenant’s TI Cost”), then Tenant shall pay the Tenant’s
TI Cost to Landlord on a percentage basis (i.e. the ratio of the Tenant’s TI
Cost bears to the total cost to complete the Premises) on a progress basis,
monthly, within fifteen (15) days after notice from Landlord of the amount
due, simultaneously with Landlord’s progress payments for the Tenant
improvement work. In the event Tenant fails to pay such amounts when due,
then for each day of delay by Tenant, the obligation of Landlord to deliver
possession of the Premises Ready for Occupancy shall be likewise extended
for an additional day. In determining the cost of the improvements, it is
acknowledged and agreed that in addition to the actual cost of construction,
said cost shall include, the design and engineering costs incurred by
Landlord, the cost of preparing plans and specifications for the
installation of the improvements and the cost of obtaining all Building and
construction permits necessary in connection with the performance of such
construction. In addition, such cost of construction shall include: (i) a
construction management fee charged by Landlord’s contractor in an amount
equal to either five percent (5%) of the cost of the work or Sixty thousand
Dollars ($60,000), whichever is greater; and (ii) a lump sum payment to be
paid to Landlord’s contractor for general conditions in the amount of
Ninety-five Thousand Dollars ($95,000) (“General Conditions Fee”).
Notwithstanding the foregoing, it is understood and agreed that (i) Twelve
Thousand Dollars ($12,000) of the General Conditions Fee has been allocated
to pay the costs of permits and fees in connection with the work required to
make the Premises Ready for Occupancy, and (ii) the General Conditions Fee
shall either be increased, in the event the actual cost of such permits and
fees exceeds $12,000, or decreased, in the event the actual cost of such
permits and fees is less than $12,000. In the event that after completion of
construction and obtaining a certificate of occupancy there remains a
balance due from the Tenant for the cost of the construction in excess of
the Allowance, Landlord shall provide an invoice to Tenant and Tenant shall
pay such sum to Landlord within thirty (30) days after receipt of an invoice
for such costs. In the event that after completion of construction and
obtaining a certificate of occupancy either: (i) there remains a balance of
the Allowance which is unspent, or (ii) if Tenant has paid to Landlord the
Tenant’s TI Cost and the sum of the Tenant’s TI Cost





23









 











	 	 	 	plus the Allowance exceeds the cost of construction; Landlord shall make
reasonable commercial efforts to determine the amount of such balance within
thirty (30) days after obtaining the certificate of occupancy and shall
provide notice to Tenant. Tenant shall have the right to elect to receive a
check for such balance payable to Tenant, or a credit to be applied against
Base Rent next due hereunder, provided however, in recognition that Landlord
must make payments under its mortgage of the Premises, Tenant agrees that
the credit against Base Rent may not exceed more than twenty-five percent
(25%) of the Base Rent in any month.
	 
	 	 	 	The parties also agree that the Allowance includes the “clean-up”, the
exterior of the Premises and the installation of trees to shield the loading
area, but not the replacement of dead trees that Landlord has agreed to
undertake at its sole cost.
	 
	 	 	 	The parties also agree that the Landlord will provide an additional
allowance to Tenant, in excess of the Allowance, for repairs to the parking
areas of the Premises in the amount of Fifteen Thousand Dollars ($15,000)
(the “Parking Lot Allowance”). Promptly following full execution and
delivery of this Lease, Tenant will identify the areas of the parking lot
which it desires to have repaired. If the amount of the Parking Lot
Allowance is not sufficient to pay the estimated cost to perform such
repairs, as determined by Landlord in its sole discretion, Tenant shall have
the option to either (i) elect not to make any repairs to the parking lot
which exceed the Parking Lot Allowance, (ii) be responsible for, and pay
directly during the performance of such repairs, the amount of such repairs
which exceeds the Parking Lot Allowance, or (iii) direct Landlord to perform
such parking lot repairs during the Spring of 2010, in which event Tenant
shall pay to Landlord, as a part of its Operating Expenses for calendar year
2010, the costs incurred by Landlord in performing such repairs in excess of
the Parking Lot Allowance.
	 
	 	(b)	 	In any event, aside from standard warranty work related to the
improvements constructed by Landlord, Landlord shall not have any obligation
for the repair or replacement of any portions of the interior of the Premises
which are damaged or wear out during the Term hereof, regardless of the cause
therefor, including, but not limited to, carpeting, draperies, window
coverings, wall coverings, painting or any of Tenant’s Property or betterments
in the Premises, except as otherwise specifically set forth in this Lease.
Except as otherwise specifically set forth in Paragraph 3(c) hereof, Landlord
has made and makes no representation of the date on which it will make the
Premises Ready for Occupancy. The rent credit, the postponement of rent and
extension of the Commencement Date as herein provided for such period shall be
in full settlement for all claims which Tenant might have. “Ready for
Occupancy” as that term is used herein shall mean the date when all major
construction aspects of the Premises and any remodeling work to be performed by
Landlord are completed although minor items are not completed (including but
not limited to touch-up plastering or repainting which does not unreasonably
interfere with Tenant’s ability to carry on its business in the Premises) and
the City of Troy has issued a temporary or permanent certificate of occupancy
for the Premises. Landlord shall use reasonable commercial efforts to obtain
the permanent certificate of occupancy for the Premises within ninety (90) days
after issuance of the temporary certificate of occupancy, except for extensions
of time due to unavailability of materials or items which cannot be completed
due to weather conditions.
	 
	 	(c)	 	The improvements installed by Landlord shall be constructed in
a good and workmanlike manner, free of all liens, and in accordance with all
laws, statutes, ordinances, building codes, rules and regulations of any
federal, state or municipal body or other governmental agency having
jurisdiction thereof in effect, including the Amercian With Disabilities Act of
1990, 42 U.S.C. ‘12101 et. seq. and applicable regulations. Landlord shall
obtain, on Tenant’s behalf, a warranty on all construction work performed to
the Premises that the same will be free of any material defect or workmanship
for one (1) year after the completion thereof.




24









 












	 	(d)	 	Any disagreement or dispute which may arise between Landlord
and Tenant with reference to the construction of Landlord’s work undertaken
pursuant to subparagraph (a) above (other than as to time) where the amount in
dispute is less than $25,000.00 shall be submitted either to a registered
architect mutually agreed to by Landlord and Tenant or other third party
selected by Landlord and Tenant, whose decision shall be final and binding upon
both Landlord and Tenant. However, if any disagreement or dispute between
Landlord and Tenant with reference to construction of Landlord’s work
undertaken pursuant to subparagraph (a) above, where the controversy equals or
exceeds $25,000.00, such shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association
unless the parties mutually agree otherwise. Notice of the demand for
arbitration shall be filed in writing with the other party and with the
American Arbitration Association and shall be made within a reasonable time
after the dispute has arisen, but in no event later than forty-five (45) days.
Any claim not submitted to arbitration within forty-five (45) days after the
event giving right of such claim shall be barred. The arbitrator’s decision
shall be final and binding upon Landlord and Tenant and a judgment for
enforcement thereof shall be entered by a court of competent jurisdiction.
Landlord and Tenant agree that all arbitration hearings shall be held in the
Detroit, Michigan metropolitan area and that any contractors, subcontractors,
laborers, material men, and other persons having responsibility for the claim
or dispute may be joined in the arbitration.
	 
	 	(e)	 	Tenant shall notify Landlord in writing of all incidental items
of uncompleted work (“Punchlist”) within thirty (30) days after the
Commencement Date. Landlord shall complete the work set forth on the Punchlist
as expeditiously as possible, but in no event later than ninety (90) days after
Landlord’s receipt of the Punchlist from Tenant (unless the work needed
materially impacts Tenant’s operations in which event Landlord shall promptly
complete such work), except for work delayed due to seasonal climate and other
weather conditions or work delayed due to the delivery of replacement
materials.






	 	21.	 	Removal of Tenant’s Property:





          All movable furniture and personal effects of Tenant not removed from the Premises within ten
(10) days after the vacation or abandonment thereof or prior to the termination of this Lease for
any cause whatsoever shall conclusively be deemed to have been abandoned and may be appropriated,
sold, stored, destroyed or otherwise disposed of by Landlord without notice to Tenant and without
obligation to account therefor, and Tenant shall pay Landlord for all expenses incurred in
connection with the storage or disposition of such property.





	 	22.	 	Holding Over:





          Should Tenant, with or without Landlord’s written consent, hold over after the termination of
this Lease, Tenant shall become a tenant from month to month only upon each and all of the terms
herein provided as may be applicable to such month to month tenancy and any such holding over shall
not constitute an extension of this Lease. During such holding over, Tenant shall pay rent equal to
one and one-quarter the last monthly Base Rent and the other monetary charges as provided herein.
Such tenancy shall continue until terminated by Landlord or Tenant by a written notice of its
intention to terminate such tenancy given at least ten (10) days prior to the date of termination
of such monthly tenancy. Nothing in this paragraph shall give Tenant any right to hold over beyond
the term of the Lease or give Tenant any expectation that Tenant will be permitted or suffered to
do so. Without limiting the foregoing, Tenant shall indemnify, protect, defend and hold harmless
Landlord from and against any and all claims, liabilities, actions, losses, damages (including
without limitation, direct, indirect, incidental and consequential) and expenses (including,
without limitation, court costs and reasonable attorneys’ fees) asserted against or sustained by
Landlord and arising by reason of such retention of possession, which obligations shall survive the
expiration or termination of the Lease Term.



25









 








	 	23.	 	Parking Areas:





          Tenant shall have the exclusive right to use all of the parking spaces upon the Premises and
those granted to Landlord under the Parking Easement. Tenant, its employees, agents and visitors
agree to obey and abide by all rules and regulations established, modified and amended from time to
time by Landlord for the safety, protection, cleanliness and preservation of order in connection
with such parking ingress and egress and other automobile and pedestrian use of the Building
Complex. Landlord shall not be responsible to Tenant, its employees, agents or visitors for
violations by any visitor or user of said parking facilities of said rules and regulations or
assignment of spaces, nor shall Landlord have any obligation to police the unauthorized use of any
such parking spaces.





	 	24.	 	Surrender and Notice:





          Upon the expiration or earlier termination of this Lease, Tenant shall promptly quit and
surrender to Landlord the Premises broom clean, in good order and condition, ordinary wear and tear
excepted, and Tenant shall remove all of its movable furniture and other effects and such
alterations, additions and improvements as Landlord shall require Tenant to remove pursuant to
Paragraph 10. In the event Tenant fails to vacate the Premises on a timely basis as required,
Tenant shall be responsible to Landlord for all costs incurred by Landlord as a result of such
failure, including, but not limited to, any amounts required to be paid to third parties who were
to have occupied the Premises.





	 	25.	 	Acceptance of Premises by Tenant:





          Taking possession of the Premises by Tenant shall be conclusive evidence as against Tenant
that the Premises were in the condition agreed upon between Landlord and Tenant, and acknowledgment
of satisfactory completion of the work, which Landlord has agreed in writing to perform, except as
otherwise set forth herein.





	 	26.	 	Subordination and Attornment:






	 	(a)	 	This Lease, and all rights of Tenant hereunder, are and shall
be subject and subordinate in all respect to all present and future ground
leases, overriding leases and underlying leases and/or grants of term of the
land and/or the Building or the Building Complex now or hereafter existing and
to all mortgages, deeds of trust and building loan agreements, including
leasehold mortgages, deeds of trust and building loan agreements, which may now
or hereafter affect the Building or the Building Complex or any of such leases,
whether or not such mortgages or deeds of trust shall also cover other lands or
buildings, to each and every advance made or hereafter to be made under such
mortgages or deeds of trust, and to all renewals, modifications, replacements
and extensions of such leases and such mortgages or deeds of trust. This
Paragraph shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver, at its sole cost and expense, an instrument consistent
with this paragraph, in recordable form, if required by Landlord, the lessor of
any such lease or the holder of any such mortgage or deed of trust, or any of
their respective successors in interest. The leases to which this Lease is, at
the time referred to, subject and subordinate pursuant to this Paragraph are
hereinafter sometimes called “superior lease” and the mortgages or deeds of
trust to which this Lease is, at the time referred to, subject and subordinate
are hereinafter sometimes called “superior mortgages”. The lessor of a superior
lease or the beneficiary of a superior mortgage or their successors in interest
are hereinafter sometimes collectively referred to as a “superior party”.
	 
	 	 	 	It shall be a condition of the foregoing subordination that the superior
party shall have agreed that so long as no default exists under this Lease
which is continuing beyond the expiration of any applicable grace or cure
period, (1) neither the holder nor the lessor shall name or join Tenant nor
any “person” (as hereinafter defined) claiming through or under Tenant as a
party defendant to any action for foreclosure or other enforcement of the
remedies of the holder under the superior mortgage or the lessor under the
superior lease (unless required by law as a condition precedent to
commencing or proceeding with any such action or other enforcement
proceeding); (ii) the leasehold estate, possession and use of the Premises
in accordance with the terms of the Lease and all other rights of Tenant
(and any person claiming through or under Tenant) under the





26









 











	 	 	 	Lease shall not be interfered with, affected or disturbed in any way by
reason of the subordination of the Lease to the superior mortgage or the
superior lease, as the case may be, or any enforcement or the superior
mortgage or any sale pursuant to the foreclosure of the superior mortgage or
any deed or assignment in lieu of foreclosure or similar devise; and (iii)
the Lease shall not be terminated by the holder or lessor in connection
with, or by reason of, foreclosure or other proceedings for the enforcement
of the superior mortgage or the superior lease, as the case may be, or by
reason of a transfer of the Landlord’s interest under the Lease pursuant to
the taking of a deed or assignment in lieu of foreclosure or similar device,
or by reason of the termination or expiration of a superior mortgage or
superior lease or any other enforcement proceedings with respect to any
superior mortgage or superior lease, and the Lease shall be unaffected by
any of the foregoing proceedings, provided however, this Lease may be
terminated if a new Lease on the same terms and conditions of and having the
same priority of lien as this Lease (or if not the same priority of lien,
such different priority of lien shall not affect Tenant with respect to its
occupancy of the Premises), is offered to Tenant and actually executed and
delivered by such aforesaid holder or lessor.
	 
	 	 	 	Landlord has obtained and delivered to Tenant for comment its current
mortgagee’s form of a subordination agreement.
	 
	 	(b)	 	Tenant shall take no steps to terminate this Lease, without
giving written notice to such superior party, and a reasonable opportunity to
cure (without such superior party being obligated to cure) any default on the
part of Landlord under this Lease and which cure period shall equal at least
thirty (30) days after notice or such greater time if such superior party has
commenced such cure and is diligently pursuing same to completion, any default
on the part of Landlord under this Lease.
	 
	 	(c)	 	In the event any proceedings are brought for the foreclosure
of, or in the event of the conveyance by deed in lieu of foreclosure of, or in
the event of the exercise of the power of sale under, any superior mortgage,
Tenant hereby attorns to, and covenants and agrees to execute an instrument in
writing reasonably satisfactory to the new owner whereby Tenant attorns to,
such successor in interest and recognizes such successor as the Landlord under
this Lease.
	 
	 	(d)	 	If the holder of any superior mortgage or a ground lease, or
anyone claiming by, through or under such holder, shall become the lessee under
the ground lease as a result of foreclosure of the superior mortgage, or by
reason of an assignment of the lessee’s interest under the ground lease and the
giving of a deed to the Building or the Building Complex in lieu of
foreclosure, there shall be no obligation on the part of such person succeeding
to the interest of the lessee under the ground lease to comply with, observe or
perform any obligations as sublessor, tenant or landlord under any superior
lease, nor shall Tenant look to such person for any security deposit delivered
to Landlord pursuant to the provision of Paragraph 29 hereof unless said
security deposit has actually been received by such parties as security for the
performance by Tenant under this Lease.
	 
	 	(e)	 	If, in connection with the procurement, continuation or renewal
of any financing for which the Building or the Building Complex, or of which
the interest of the lessee therein under a superior lease, represents
collateral in whole or in part, an institutional lender shall request
reasonable modifications of this Lease as a condition of such financing, Tenant
will not unreasonably withhold its consent thereto provided that such
modifications do not increase the obligations of Tenant under this Lease or
adversely affect any rights of Tenant or decrease the obligations of Landlord
under this Lease.
	 
	 	(f)	 	Landlord represents that, except for the mortgage existing as
of the date of this Lease with Flagstar, there are no mortgages, deeds of trust
or superior leases presently affecting the Premises.




27









 






	 	 	 	Should the Landlord be deemed to have breached the foregoing representation,
Landlord’s liability shall extend only to taking such actions as may be
required to cure such breach, or other steps to make the representation
true, and Tenant shall not be entitled to any damages or abatement of Rent
or other charges due under the Lease due to such misrepresentation, provided
that Tenant shall in no event be legally dispossessed of the Premises as a
result thereof.






	 	27.	 	Payments after Termination:





          No payments of money by Tenant to Landlord after the termination of this Lease, in any manner,
or after giving of any notice (other than a demand for payment of money) by Landlord to Tenant,
shall reinstate, continue or extend the term of this Lease or affect any notice given to Tenant
prior to the payment of such money, it being agreed that after the service of notice of the
commencement of a suit or other final judgment granting Landlord possession of the Premises,
Landlord may receive and collect any sums of rent due, or any other sums of money due under the
terms of this Lease or otherwise exercise its rights and remedies hereunder. The payment of such
sums of money, whether as rent or otherwise, shall not waive said notice or in any manner affect
any pending suit or judgment theretofore obtained.





	 	28.	 	Authorities for Action and Notice:






	 	(a)	 	Except as herein otherwise provided, Landlord may act in any
matter provided for herein by its building manager or any other person who
shall from time to time be designated in writing.
	 
	 	(b)	 	All notices or demands required or permitted to be given to
Landlord hereunder shall be in writing, and shall be deemed duly served when
received or refused, if hand delivered, one (1) business day after deposited
with a recognized overnight courier service, or five (5) days after deposited
in the United States mail, with proper postage prepaid, certified or
registered, return receipt requested, addressed to Landlord at the address set
forth in the beginning of this Lease, or at the most recent address of which
Landlord has notified Tenant in writing, to the attention of Chief Executive
Officer. All notices or demands required to be given to Tenant hereunder shall
be in writing, and shall be deemed duly served when received if hand delivered
or refused, one (1) business day after deposited with a recognized overnight
courier service or five (5) days after deposited in the United States mail,
with proper postage prepaid, certified or registered, return receipt requested,
addressed to Tenant at its principal office in the Building to the attention of
Corporate Secretary with a copy to: C. Kim Shierk, Myers Nelson Dillon &
Shierk, PLLC, 40701 Woodward Avenue, Suite 235, Bloomfield Hills, Michigan
48304. Either party shall have the right to designate a different address to
which notice is to be mailed by serving on the other party a written notice in
the manner hereinabove provided.






	 	29.	 	Security Deposit:






	 	 	 	[Intentionally Deleted]






	 	30.	 	Liability of Landlord:





          Tenant shall look only to Landlord’s estate and interest in the Building (or to the proceeds
thereof) for the satisfaction of Tenant’s remedies for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any default by
Landlord under this Lease, and no other property or other assets of Landlord shall be subject to
levy, execution or other enforcement, procedure for the satisfaction of Tenant’s remedies under or
with respect to this Lease and neither Landlord nor any of the members or managers comprising the
limited liability company which is the Landlord herein, shall be liable for any deficiency. Nothing
contained in this Paragraph shall be construed to permit Tenant to offset against rents due a
successor landlord, a judgment (or other judicial process) requiring the payment of money by reason
of any default of a prior landlord, except as otherwise specifically set forth herein.



28









 








	 	31.	 	Brokerage:





          Tenant represents and warrants that it has dealt only with the Broker defined in subparagraph
I of Paragraph 1 hereof in the negotiation of this Lease. Landlord shall make payment of the
brokerage fee due to the Broker pursuant to and in accordance with Landlord’s separate agreement
with the Broker. Landlord and Tenant each hereby agree to indemnify and hold the other harmless of
and from any and all loss, cost, damage or expense (including, without limitation, all counsel fees
and disbursements) by reason of any claim of or liability to any other broker claiming through it
and arising out of or in connection with the execution and delivery of this Lease. In the event any
claim shall be made by any other broker who shall claim to have negotiated this Lease on behalf of
Tenant or to have introduced Tenant to the Building or to Landlord, Tenant shall have the right to
defend any such action by counsel to be selected by Tenant and approved by Landlord, which approval
shall not be unreasonably withheld,conditioned or delayed and in the event such broker shall be
successful in any such action, Tenant shall, in addition to making payment of the claim of such
broker, be responsible for all counsel fees incurred in such action.





	 	32.	 	Signage:





          Provided Tenant is not then in default under the Lease beyond any applicable grace or cure
period, and Tenant is then in occupancy of all of the Building, Tenant or any Permitted Assignee,
but not any other assignee or sublessee, this right being personal to the original Tenant and any
Permitted Assignees, shall have the right, at its sole cost and expense, to, subject to obtaining
all necessary approvals under law or otherwise and Landlord’s consent thereto, (i) to install one
(1) outdoor sign bearing the Tenant’s name on the exterior wall of the Building; and (ii) to
install monument signage including on on any existing monument. At anytime that Tenant is not in
occupancy of at least fifty percent (50%) of the Building, Landlord shall have the right to require
that Tenant, at its sole cost and expense, remove any or all of the signage described above.




          Except as permitted above, no sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such color, size and style
and in such place upon or in the Building, as shall be first designated by Landlord, but there
shall be no obligation or duty on Landlord to allow any sign, advertisement or notice to be
inscribed, painted or affixed on any part of the inside or outside of the Building. Landlord shall
have the right to remove all non-permitted signs without notice to Tenant, and at the expense of
Tenant.





	 	33.	 	Name of Building Project:





          Landlord has named the Building Complex under the name set forth in subparagraph A of
Paragraph 1 hereof. Landlord hereby reserves the right, at any time and from time to time, without
notice to Tenant, to change the name of the Building Complex and to name or change the name of any
building located therein at Landlord’s sole discretion.





	 	34.	 	Area of Premises:





          The parties stipulate that for all purposes of this Lease the area stated herein for the
Premises shall be the square footage of the Leased Premises and the Tenant shall have no right to
claim the square footage is different regardless of the actual measurement of the Premises.





	 	35.	 	Furnishing of Financial Statements:





          Each year during the Term, on or before April 1, Tenant shall furnish to Landlord its audited
final statements for the immediately preceding fiscal year, which shall include, at a minimum, a
balance sheet, income statement and a statement of changes in financial condition, for such
previous year, as well as the auditor’s opinion regarding such statements. In addition, Tenant
shall update any fnancial statements previously delivered hereunder by providing its most recent
quarterly financial statements upon Landlord’s request.





	 	36.	 	Miscellaneous:






	 	(a)	 	The rules and regulations attached hereto and marked Exhibit
“B”, as well as such rules and regulations as may hereafter be adopted by
Landlord for the safety, care and cleanliness of the Premises and the Building
and the preservation of good order thereon, are hereby expressly made a part
hereof, and Tenant agrees to obey all such rules and regulations. The violation
of any of such rules and regulations by Tenant shall be deemed a breach of this
Lease by Tenant affording Landlord all the remedies set





29









 





	 	 	 	forth herein. Landlord shall not be responsible to Tenant for the
non-performance by any other occupant of the Building of any of said rules
and regulations.
	 
	 	(b)	 	The term “Landlord”, as used in this Lease, so far as covenants
or obligations on the part of Landlord are concerned, shall be limited to mean
and include only the owner or owners of the Building at the time in question,
and in the event of any transfer or transfers of the title thereto, Landlord
herein named (and in the case of any subsequent transfers or conveyances, the
then grantor) shall be automatically released from and after the date of such
transfer or conveyance of all liability in respect to the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and relating to events occurring thereafter;
provided that any funds in the hands of Landlord or the then grantor at the
time of such transfer in which Tenant has an interest shall be turned over to
the grantee, and any amount then due and payable to Tenant by Landlord or the
then grantor under any provisions of this Lease shall be paid to Tenant.
	 
	 	(c)	 	This Lease shall be construed as though the covenants herein
between Landlord and Tenant are independent and not dependent and Tenant shall
not be entitled to any set off of the rent or other amounts owing hereunder
against Landlord, if Landlord fails to perform its obligations set forth
herein. The foregoing shall in no way impair the right of Tenant to commence a
separate action against Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder
of a mortgage or deed of trust covering the Building Complex or any portion
thereof of whose address Tenant has been notified in writing and an opportunity
granted to Landlord and such holder to correct such violation.
	 
	 	(d)	 	If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there shall be added
as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable, provided such addition does not increase or
decrease the obligations of or derogate from the rights or powers of either
Landlord or Tenant.
	 
	 	(e)	 	The captions of each paragraph are added as a matter of
convenience only and shall be considered of no effect in the construction of
any provision or provisions of this Lease.
	 
	 	(f)	 	Except as herein specifically set forth, all terms, conditions
and covenants to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective heirs, administrators,
executors and assigns. The terms, conditions and covenants hereof shall also be
considered to be covenants running with the land.
	 
	 	(g)	 	If there is more than one entity or person which or who are the
Tenants under this Lease, the obligations imposed upon Tenant under this Lease
shall be joint and several.
	 
	 	(h)	 	No act or thing done by Landlord or Landlord’s agent during the
term hereof, including, but not limited to, any agreement to accept surrender
of the Premises or to amend or modify this Lease, shall be deemed to be binding
upon Landlord unless such act or things shall be by an officer of Landlord or a
party designated in writing by Landlord as so authorized to act. The delivery
of keys to Landlord, or Landlord’s agent, employees or officers shall not
operate as a termination of this Lease or a surrender of the Premises. No
payment by Tenant, or receipt by Landlord, of a lesser amount than the monthly
rent herein stipulated, shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check
or any letter accompanying any




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	 	 	 	such, or payment as rent, be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord’s right to
recover the balance of such rent or pursue any other remedy available to
Landlord.






	 	(i)	 	Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except such as are
expressed in this Lease.
	 
	 	(j)	 	Time is of the essence hereof.
	 
	 	(k)	 	Tenant represents to Landlord that the party executing this
Lease is authorized to do so by requisite action of the Board of Directors, or
partners, as the case may be, and agree upon request to deliver to each other a
resolution or similar document to that effect.
	 
	 	(l)	 	This Lease shall be governed by and construed in accordance
with the laws of the State of Michigan.
	 
	 	(m)	 	This Lease, together with any Addendum and Exhibits attached
hereto, contains the entire agreement of the parties and may not be amended or
modified in any manner except by an instrument in writing signed by both
parties.
	 
	 	(n)	 	Notwithstanding anything in this Lease to the contrary,
Landlord shall incur no liability to Tenant with respect to, and shall not be
responsible for any failure to perform, any of Landlord’s obligations hereunder
if such failure is caused by any reason beyond the control of Landlord
including, but not limited to governmental law, ordinances, rules or
regulations, strike, labor trouble, fire, flood, earthquake, civil commotion,
or failure or disruption of utility services. The amount of time for Landlord
to perform any of Landlord’s obligations shall be extended by the amount of
time Landlord is delayed in performing such obligation by reason of any force
majeure occurrence.
	 
	 	(o)	 	Alll references in this Lease to the compliance with law shall
be deemed to include compliance with the terms and provisions of the Special
Use Approval, the Master Deed and the Consent Judgment, as such term is
hereinafter defined.






	 	37.	 	Representations:






	 	(a)	 	As a material inducement to Tenant’s execution of this Lease,
Landlord represents to Tenant, as of the date hereof and, as of the
Commencement Date, as follows:






	 	(i)	 	Landlord is the fee simple owner of the
Premises subject to no easements, restrictions, mortgages, encumbrances
or other matter which would: (i) preclude Landlord’s grant of the Lease
to Tenant,or (ii) prevent the use of the Premises for the permitted
use specified in this Lease.
	 
	 	(ii)	 	Landlord has not received notice of any claim,
suit or other action or investigation with respect to the violation of
any legal requirements of the Premises, including, without limitation,
environmental laws, and Landlord knows of no existing violations of law
relating to the Premises.
	 
	 	(iii)	 	Landlord knows of no action or proceeding,
pending or threatened, to have any portion of the Premises taken or
used for any governmental purposes or any other governmental action,
proceeding or investigation.
	 
	 	(iv)	 	Landlord is a Michigan limited liability
company, validly existing in good standing under the Laws of Michigan
and has the power to own its own property and assets, to lease the
Premises to Tenant and to carry on its business as required under this
Lease in the State.




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	 	(v)	 	The execution of this Lease constitutes the
binding obligation of Landlord and has been duly authorized by all
necessary limited liability company action. This Lease will not
conflict with or result in a breach of Landlord’s Articles of
Organization or Operating Agreement or any agreements to which Landlord
is a party or by which it may be bound, or violate any applicable legal
requirement, including, without limitation, any requirement,
restriction or easement applicable to the Premises or Landlord.
	 
	 	(vi)	 	Landlord knows of no action or proceeding,
pending or threatened, to impose a special assessment against the
Premises.





          Should the Landlord be deemed to have breached any of the foregoing representations,
Landlord’s liability shall extend only to taking such actions as may be required to cure such
breach, or other steps to make the representation true, and Tenant shall not be entitled to any
damages or abatement of Rent or other charges due under the Lease due to such misrepresentation,
provided that Tenant shall in no event be legally dispossessed of the Premises as a result thereof.





	 	(b)	 	As a material inducement to Landlord’s execution of this Lease,
Tenant represents to Landlord, as of the date hereof, as follows:






	 	(i)	 	Tenant is a Michigan corporation, validly
existing in good standing under the Laws of Michigan and has the power
to own its own property and assets, to lease the Premises from Landlord
and to carry on its business as required under this Lease in the State.
	 
	 	(ii)	 	The execution of this Lease constitutes the
binding obligation of Tenant and has been duly authorized by all
necessary corporate action. The party executing this Lease has the
power and authority to do so and bind the Tenant. This Lease will not
conflict with or result in a breach of Tenant’s Articles of
Incorporation or Bylaws or any agreements to which Landlord is a party
or by which it may be bound.





          Should the Tenant be deemed to have breached any of the foregoing representations, Tenant’s
liability shall extend only to taking such actions as may be required to cure such breach, or other
steps to make the representation true, and Landlord shall not be entitled to any damages or other
charges due under the Lease due to such misrepresentation.





	 	38.	 	Environmental:





          As of the Commencement Date, Landlord represents, that to its knowledge, that except as
provided in that certain Phase I Environmental Site Assessment prepared by ATC Associates Inc.
dated January 27, 2009, the Premises are free from hazardous materials, the presence of which would
give rise to a violation of environmental laws and Landlord warrants that during the Term it shall
not use hazardous materials in the Premises in a manner which would give rise to a violation of
environmental laws at the Premises.




          Except for claims arising due to the negligence of Tenant, Landlord hereby indemnifies and
agrees to hold Tenant harmless, and to defend Tenant, of and from all liability, loss, cost, damage
or expense, including reasonable attorneys’ fees, arising from any breach or default in the
foregoing representation and warranty and to defend Tenant against any and all claims of liability
for any injury or damage to any person or property whatsoever resulting thererfrom.




          Landlord shall obtain a reliance letter for the Phase I Environmental Site Assessment for the
benefit of the Tenant.





	 	39.	 	Consent Judgment and Condominium:






	 	(a)	 	The Premises is subject to a certain First Amended and Restated
Consent Judgment dated July 2, 1997 and recorded in Liber 17359 at Page 72,
Oakland County Records (“Consent Judgment”). Landlord hereby represents that as
of the date hereof, that it has not received notice of any violation of the the
Consent Judgment.




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	 	 	 	Should the Landlord be deemed to have breached the foregoing representation,
Landlord’s liability shall extend only to taking such actions as may be
required to cure such breach, or other steps to make the representation
true, and Tenant shall not be entitled to any damages or abatement of Rent
or other charges due under the Lease due to such misrepresentation, provided
that Tenant shall in no event be legally dispossessed of the Premises as a
result thereof.
	 
	 	 	 	Landlord also agrees to file and diligently pursue an amendment to the
Consent Judgment that removes the requirement that a meeting room in the
Building be made available to the public. Prior to the effective date of
such removal, Landlord agrees to make a meeting room available to the
public, at such times and at such cost, as the Landlord deems reasonable in
its sole and absolute discretion at another location owned by Landlord or
its affilaites.






	 	(b)	 	The Premises is also subject to the Master Deed. Landlord
hereby represents that as of the date hereof, that it has not received notice
of any violation of the Master Deed and that the Permitted Use described in
Section 1.F. of this Lease is a permitted use for the Premises under the Master
Deed.
	 
	 	 	 	Should the Landlord be deemed to have breached the foregoing representation,
Landlord’s liability shall extend only to taking such actions as may be
required to cure such breach, or other steps to make the representation
true, and Tenant shall not be entitled to any damages or abatement of Rent
or other charges due under the Lease due to such misrepresentation, provided
that Tenant shall in no event be legally dispossessed of the Premises as a
result thereof.




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          IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and year first above
written.




	 	 	 	 	 
	 	LANDLORD:





KIRTS OFFICE CENTER ASSOCIATES, L.L.C., a 

Michigan limited liability company





By: Kirts Development, L.L.C., Managing Member

 	 
	 	By:  	 /s/ A. Mathew Kiriluk II
 	 
	 	 	Name:  	A. Mathew Kiriluk II         	 
	 	 	Its: 	Managing Member 	 
	 
	 	

TENANT:





SOMANETICS CORPORATION, a Michigan corporation
 	 
	 
	 
	 	By:  	/s/ Mary Ann Victor
 	 
	 	 	Name:  	Mary Ann Victor 	 
	 	 	Its:        Vice President and Chief Administrative
Officer 	 
	 




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EXHIBIT “A”




SITE PLAN









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EXHIBIT “A”




LOCATION OF PREMISES









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EXHIBIT “B”




RULES AND REGULATIONS



ATTACHED TO AND MADE A PART OF LEASE, DATED July 22, 2009, BY AND BETWEEN KIRTS OFFICE CENTER
ASSOCIATES, L.L.C., AS LANDLORD, AND SOMANETICS CORPORATION, AS TENANT. TENANT AGREES FOR ITSELF,
ITS EMPLOYEES, INVITEES AND AGENTS TO COMPLY FULLY WITH THE FOLLOWING RULES AND REGULATIONS AND
WITH SUCH REASONABLE MODIFICATIONS THEREOF AND ADDITIONS THERETO AS LANDLORD MAY MAKE FOR THE
BUILDING:




     1. No sign, picture, lettering, notice or advertisement of any kind shall be painted or
displayed on or from the windows, doors, roof, or outside walls of the Building. In the event of
the violation of the foregoing by Tenant, Landlord may remove same without any liability and may
charge the expense incurred for such removal to Tenant.



     2. Tenant shall not use the name of the Building for any purpose other than that of the
business address of Tenant. Tenant agrees that Landlord may assign a name to the Building and/or
change the name of the Building at Landlord’s option.



     3. The sidewalks, entrances, exterior passages and courts shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the Building.



     4. No curtains, blinds, shades, screens, awnings, or other projections shall be attached to or
hung in, or used in connection with, any window or door of the Leased Premises or outside wall of
the Building without the prior written consent of the Landlord, not to be unreasonably withheld,
delayed or conditioned, nor shall Tenant place objects against glass partitions, doors or windows
which would be unsightly from the exterior of the Building.



     5. Any carpeting cemented down shall be installed with a releasable adhesive.



     6. No animals or pets shall be used in testing in the Building or the Leased Premises.



     7. The water and wash closets and other plumbing fixtures shall not be used for any purpose
other than those for which they were constructed, and no sweepings, rubbish, rags, or other
substances shall be thrown therein. All damage resulting from any misuse of the fixtures shall be
borne by the Tenant who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.



     8. No tenant shall mark, paint, drill into, or in any way deface any part of the Leased
Premises or the Building of which they form a part. No boring, cutting or stringing of wires shall
be permitted, except with the prior written consent of the Landlord, and as the Landlord may
direct.



     9. [Intentionally Deleted]



     10. [Intentionally Deleted]



     11. [Intentionally Deleted]



     12. No additional locks or bolts of any kind shall be placed upon any of the doors and windows
by Tenant, nor shall any change be made in existing locks or the mechanism thereof, unless and
until Landlord is provided a key with respect thereto. Tenant must, upon the termination of its
tenancy, return to the Landlord all keys of stores, offices, and toilet rooms, either furnished to
or otherwise procured by Tenant and in the event of the loss of any keys, so furnished, such tenant
shall pay to the Landlord the cost thereof.



     13. Tenant assumes full responsibility for protecting the Leased Premises from theft, robbery
and pilferage.



     14. Tenant is not permitted to use any part of the Building or the common areas for lodging,
or for any immoral or illegal purpose.



     15. All loading, unloading, receiving or delivery of goods, supplies or disposal of garbage or
refuse shall be made only through entryways provided for such purposes by Landlord.



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     16. Tenant shall be responsible for any damage to the Building or the property or others and
injuries sustained by any person whomsoever resulting from the use or moving of such articles in or
out of the Leased Premises, and shall make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such articles.



     17. Tenant shall not bring in or allow to be kept upon the Leased Premises any inflammable,
combustible or explosive fluid, chemical or substance or any article deemed extra hazardous on
account of fire or other dangerous properties, except in compliance with all applicable
governmental laws and regulations.



     18. Tenant shall provide adequate waste and rubbish receptacles to prevent unreasonable
hardship to Landlord in discharging its obligation regarding cleaning services.



     19. Tenant will not permit any mechanic’s liens to be placed against the Leased Premises.



     20. Wherever the word “Tenant” occurs, it is understood and agreed that it shall mean Tenant’s
associates, agents, clerks, servants and visitors. Wherever the word “Landlord” occurs, it is
understood and agreed that it shall mean Landlord’s assigns, agents, clerks, servants and visitors.



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EXHIBIT “C”




CONSTRUCTION SCHEDULE









39









 





SCHEDULE 1

LEGAL DESCRIPTION OF THE BUILDING COMPLEX



The Candlewood Hotel/Office Center Condominium as described and depicted in that certain Master
Deed for Candlewood Hotel/Office Center Condominium recorded at Liber 17654, Page 812 with the
Oakland County, Michigan Register of Deeds





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