\n 30.8 Estoppel Certificate……….. 26
\n 30.9 Gender……………………. 26
\n 30.10 Captions and Section Numbers.. 26
\n 30.11 Broker’s Commission……….. 26
\n 30.12 Recording………………… 26
\n 30.13 Execution of Lease………… 26
\n 30.14 Construction……………… 26
\n 30.15 Binding Effect……………. 27
\n<\/c><\/s><\/table>\n -iv-<\/p>\n
LEASE
\n —–<\/p>\n
SECTION I<\/p>\n
SCHEDULE
\n ——–<\/p>\n
LANDLORD: NAME: SSP Associates, Inc.
\n ADDRESS: 4509 Longmeadow Road, Saginaw, MI 48603<\/p>\n
TENANT: NAME: Concentric Network Corporation
\n ADDRESS:
\n Before Commencement Date:
\n 1400 Parkmoor Avenue
\n San Jose, CA 95126
\n Attn: Director of Administration<\/p>\n
After Commencement Date:
\n 1400 Parkmoor Avenue and The Premises
\n —
\n San Jose, CA 95126 Attn: Facility Manager
\n Attn: Director of Administration<\/p>\n
DEMISED
\nPREMISES: Land (“Site”) as described in Exhibit A consisting of
\n approximately 7.34 acres, and improvements to be constructed or
\n installed thereon (“Project”), located at 1405 Tittabawassee,
\n Carrollton Township, Saginaw County, Michigan, described as
\n follows:<\/p>\n
An office and computer facility consisting of approximately
\n 40,000 square feet of office space, and including driveways,
\n parking areas and related improvements.<\/p>\n
PLANS: Plans and specifications (“Plans”) for completion and
\n construction of the Project, as approved and initialed by the
\n parties, floor plan (Job No. 99-1334-60; 10\/20\/99) Sheet A1,
\n Elevation (Job No. 99-1334-60; 11\/8\/99) Sheet A2, together with
\n any subsequent plans and specifications approved in writing by
\n the parties.<\/p>\n
LEASE TERM: 12 years<\/p>\n
RENEWAL TERM: One 10-year term<\/p>\n
COMMENCEMENT
\nDATE: When built (Anticipated to be June 1, 2000)<\/p>\n
1<\/p>\n
TERMINATION
\nDATE: May 30, 2012<\/p>\n
ANNUAL BASE
\nRENT: Lease Year Annual Base Rent
\n ———- —————-<\/p>\n
1 ($10.00 x sq. ft.) $440,000.00
\n 2 ($10.00 x sq. ft.) $440,000.00
\n 3-12 ($12.75 x sq. ft.) $510,000.00 <\/p>\n
Renewal Term (13-22) $CPI since 2000 with no one
\n year exceeding 3.5% increase<\/p>\n
MONTHLY
\nINSTALLMENT OF
\nBASE RENT: Month of Lease Term Monthly Installment of Base Rent
\n ——————- ——————————–<\/p>\n
1-24 $36,666.66
\n 25-144 $42,500.00 <\/p>\n
SECURITY
\nDEPOSIT: None required at commencement<\/p>\n
USE OF DEMISED
\nPREMISES: Office\/Computer Facility and other uses permitted under the
\n B-1 Zoning<\/p>\n
DATED: December 15, 1999<\/p>\n
EXHIBITS
\nATTACHED: A – Legal Description of Demised Premises and Site Plan
\n B – Plans
\n C – Tenant Requirements<\/p>\n
SECTION 2<\/p>\n
GRANT AND TERM
\n ————–<\/p>\n
2.1 Demised Premises
\n —————-<\/p>\n
Landlord, in consideration of the rents to be paid and the covenants,
\npromises and agreements to be performed by Tenant, does hereby lease to Tenant
\nand Tenant hereby rents from Landlord, the Demised Premises described in
\nSection 1.<\/p>\n
2<\/p>\n
2.2 Term
\n —-<\/p>\n
The term of this Lease shall be for the Lease Term stated in Section 1,
\ncommencing on the Commencement Date stated in Section 1 and expiring on the
\nTermination Date stated in Section 1, unless delayed or sooner terminated as
\nherein set forth.<\/p>\n
2.3 Renewal Term
\n ————<\/p>\n
Tenant is granted an option to renew the term of the Lease for one 10-year
\nterm which shall be exercised, if at all, as follows:<\/p>\n
Not less than 270 days before the expiration of the Lease, Tenant will
\n notify Landlord in writing of Tenant’s election to renew the Lease for an
\n additional term of ten years. The monthly rental charge is set out in
\n Section 5.<\/p>\n
SECTION 3<\/p>\n
CONSTRUCTION OF DEMISED PREMISES
\n ——————————–<\/p>\n
3.1 Construction
\n ————<\/p>\n
Landlord agrees, prior to the Commencement Date to construct and complete
\nthe Project on the Site, in accordance with the Plans as described in Section 1,
\nat Landlord’s sole cost and expense. Any changes made to the Plans, at the
\nrequest of Tenant, after the date of this Lease, which are acceptable to
\nLandlord in cost, character, nature and scope, shall be paid by Tenant to the
\nextent they increase the cost to complete the Project; one-half of such amount
\nat date of the request by Tenant and the balance to be paid on the Commencement
\nDate. Minor changes from such plans and specifications, which may be necessary
\nto accommodate construction and are reasonably approved by Tenant, shall not
\naffect, change or invalidate this Lease. The Project shall be constructed in a
\ngood and workmanlike manner, free of all liens, and in accordance with the Plans
\nand all laws, statutes, ordinances, building codes, rules and regulations of any
\nfederal, state or municipal body or other governmental agency having
\njurisdiction thereof then in effect. Landlord warrants against structural
\ndefects and further warrants that the entire Project will be free from defect in
\nmaterials or workmanship for one year.<\/p>\n
3.2 Delays
\n ——<\/p>\n
Landlord’s obligations under this section shall not require Landlord to
\nincur overtime costs and expenses. In the event Landlord shall be delayed or
\nhindered in the construction of the Project or prevented from completing such
\nconstruction or prevented from delivering possession of the Demised Premises
\nbecause of any strike, lockout, labor dispute, fire, damage or destruction or
\ncasualty, unavailability of material, weather, power failures, unavailability of
\nutilities, restrictive governmental laws or regulations, riots, insurrection,
\nwar, or any other reason, beyond its control,<\/p>\n
3<\/p>\n
then Landlord shall be excused for the period of delay and the Commencement Date
\nshall be postponed for such period of delay until such time as the Demised
\nPremises are ready for occupancy, but no such failure to give Tenant occupancy,
\nshall extend the Termination Date.<\/p>\n
3.3 Completion Date
\n —————<\/p>\n
Subject to Section 3.2, the Project shall be substantially completed on or
\nbefore the Commencement Date. Substantially completed shall mean the date upon
\nwhich water, gas, electricity, sewer and other utilities at levels reasonably
\nrequired for the permitted use are available, Landlord has substantially
\ncompleted the Project (subject only to Punchlist Items or exterior seasonal
\nprojects (e.g., blacktopping, landscaping, etc.)) and Landlord delivers a
\nCertificate of Occupancy which permits Tenant to occupy the Project and conduct
\nits business.<\/p>\n
3.4 Settlement of Disputes
\n ———————-<\/p>\n
If any disagreement or dispute may arise between Landlord and Tenant with
\nreference to the work performed by Landlord with respect to the Exhibit B
\n(Plans) or Exhibit C (Tenant Requirements), such shall be decided by arbitration
\nin accordance with the Construction Industry Arbitration Rules of the American
\nArbitration Association unless the parties mutually agree otherwise. Notice of
\nthe demand for arbitration shall be filed in writing with the other party and
\nwith the American Arbitration Association and shall be made within a reasonable
\ntime after the dispute has arisen. The arbitrator’s decision shall be final and
\nbinding upon Landlord and Tenant and a judgment for enforcement thereof shall be
\nentered by a court in Saginaw County, Michigan. Landlord and Tenant shall agree
\nthat all arbitration hearings shall be held in Saginaw County, Michigan, and
\nthat any contractors, subcontractors, laborers, materialmen and other persons or
\nentities having responsibility for the claim or dispute may be joined to the
\narbitration.<\/p>\n
SECTION 4<\/p>\n
POSSESSION AND COMMENCEMENT OF TERM
\n ———————————–<\/p>\n
4.1 Possession and Commencement of Lease Term
\n —————————————–<\/p>\n
Landlord shall deliver actual possession of the Demised Premises to Tenant
\non or before the completion date specified in Section 3.3, but if delivery is
\ndelayed by reason of Section 3.2 or by the Landlord for any reason whatsoever,
\nthe date upon which such possession is delivered shall constitute the
\n“Commencement Date” in lieu of the date provided in Section 1; however, the
\nTermination Date provided in Section I shall not change. Landlord shall, when
\nconstruction progress so permits, notify Tenant of the anticipated completion
\ndate specified in Section 3.3. By occupying the Demised Premises, Tenant will be
\ndeemed to have accepted the Demised Premises and acknowledged that they are in
\nsubstantially the condition required under this Lease; except for incidental
\nitems of uncompleted contract work that does not interfere with or diminish
\nTenant’s use of the Project of which Tenant shall notify Landlord in a writing
\n(“Punchlist”) within six (6) months after the Commencement Date. Landlord shall
\ndiligently pursue completion of such items of<\/p>\n
4<\/p>\n
uncompleted contract work set forth in the Punchlist. The Rent, as defined
\nherein, due under this Lease and the term of this Lease shall commence on the
\nCommencement Date. If permission is given to Tenant to occupy all or part of the
\nDemised Premises prior to the Commencement Date, Tenant covenants and agrees
\nthat such occupancy shall be governed by all terms and conditions of this Lease
\n(other than the obligation to pay rent), and the Termination Date shall not be
\nchanged. Such early occupancy shall not interfere with Landlord’s completion of
\nthe Project. Tenant and its contractors shall have the right to install
\nequipment, trade fixtures, furnishings and decorations in the Demised Premises
\nfor a period of 30 days prior to the Commencement Date, provided such does not
\ndelay or interfere with Landlord’s construction or delivery of possession and
\nany such delay or interference shall not postpone the Commencement Date or the
\nobligation to pay Rent.<\/p>\n
4.2 Landlord Not Liable For Delays
\n ——————————<\/p>\n
Under no circumstances shall Landlord be liable for any delays in the
\ndelivery of possession to Tenant on the Commencement Date.<\/p>\n
4.3 Memorandum
\n ———-<\/p>\n
Within 30 days after the delivery of possession to Tenant, Tenant shall
\njoin with Landlord in the execution of a written memorandum confirming the
\nCommencement Date and Termination Date of the Lease Term. Tenant’s failure to
\nexecute the Memorandum shall be a violation by Tenant under this Lease and
\nLandlord’s default under this Lease shall not relieve Tenant of the obligation
\nto execute the Memorandum within such 30-day period.<\/p>\n
SECTION 5<\/p>\n
BASE RENT
\n ———<\/p>\n
5.1 Base Rent
\n ———<\/p>\n
Tenant shall pay to Landlord the Annual Base Rent stated in Section 1, for
\nthe Demised Premises during the Lease Term. The Annual Base Rent shall be
\npayable in monthly installments equal to the Monthly Installment of Base Rent
\nstated in Section 1, paid in advance, on the first day of each and every
\ncalendar month during the Lease Term, without any set-off or deduction
\nwhatsoever (except as expressly set forth herein), at the office of Landlord
\nstated in Section 1, or at such other place as Landlord may designate from time
\nto time in writing. The first Monthly Installment of Base Rent shall be due and
\npayable at the time of the execution of this Lease. If the Lease Term shall
\ncommence on a day other than the first day of a calendar month, or shall end on
\nother than the last day of a calendar month, then the Monthly Installment of
\nBase Rent due for such partial month shall be prorated.<\/p>\n
5<\/p>\n
5.2 Renewal Base Rent
\n —————–<\/p>\n
A. If Tenant elects to continue the Lease for an additional ten-year
\n term, the Annual Base Rent for each year of the Renewal Term (ten years)
\n shall be increased on June 1, 2012 (“Adjustment Date”), to an amount equal
\n to the product obtained by multiplying Five Hundred Ten Thousand
\n ($510,000.00) Dollars by the sum of each calendar year percent change
\n (positive or negative) in the Consumer Price Index-Detroit All Items (1992-
\n 1984 = 100), published by the Bureau of Labor Statistics of the United
\n States Department of Labor during the lease term. For each year that the
\n Consumer Price Index exceeds a percent change greater than 3.5% (positive
\n or negative), the figure of 3.5% shall be used instead of the actual
\n figure. In no event shall the Annual Base Rent as adjusted be less than the
\n Annual Base Rent for the previous lease year. The Monthly Installment of
\n Base Rent shall be increased on each Adjustment Date to an amount equal to
\n one-twelfth (1\/12) of the Annual Base Rent as increased on such Adjustment
\n Date. References in this Lease to Annual Base Rent shall include
\n adjustments thereto pursuant to this Section. An example of how the
\n adjustment of Base Rent shall be calculated in the year 2012, shall be as
\n follows:<\/p>\n
Assume the following annual percent increase in CPI Detroit All Items:<\/p>\n
00 2.1% 06 3.0%
\n 01 2.7% 07 2.8%
\n 02 4.6% 08 2.3%
\n 03 5.2% 09 2.0%
\n 04 4.0% 10 2.1%
\n 05 3.4% 11 -2.0% <\/p>\n
Sum total percent increase without adjustment for the lease
\n ——————
\n term = 32.2%<\/p>\n
Sum total percent increase with adjustment (e.g., 3.5% cap)
\n —————
\n to use for ten-year Renewal Term = 28.9%<\/p>\n
$510,000.00 x 1.289 = $657,390.00 \/ 12 = $54,782.50 per month
\n for each month often-year Renewal Term<\/p>\n
B. The Landlord shall, within a reasonable time after obtaining the
\n appropriate data necessary for computing such increase, give Tenant written
\n notice of any such increase, and Tenant shall commence paying the Monthly
\n Installment of Base Rent as increased with the next Monthly Installment of
\n Base Rent due hereunder. In the event the determination is made after the
\n Adjustment Date, then Tenant shall pay the increase allocated for any prior
\n periods with the next Monthly Installment of Base Rent payment or within
\n thirty (30) business days after such notice of the increase, whichever
\n occurs last.<\/p>\n
C. In the event the CPI Detroit (All Items) is discontinued and not
\n replaced by a successor index by the Bureau of Labor Statistics, the
\n adjustments to be made hereunder<\/p>\n
6<\/p>\n
shall be made based upon such comparable statistics on the cost of living
\n for the Detroit region which shall carry out the intent of this paragraph.<\/p>\n
D. In the event of any dispute between Landlord and Tenant with
\n regard to such adjustment, such dispute shall be determined by arbitration
\n under the then prevailing commercial arbitration rules of the American
\n Arbitration Association. Such arbitration shall be final and binding upon
\n the parties and a judgment may be entered upon it in accordance with the
\n applicable law in any court having jurisdiction thereof.<\/p>\n
5.3 Rent Net of all Expenses
\n ————————<\/p>\n
Landlord and Tenant intend that the Annual Base Rent due hereunder,
\ntogether with any adjustments during the Lease Term shall be absolutely net of
\nall operating costs, expenses, taxes (real and personal) and charges.<\/p>\n
5.4 Additional Rent
\n —————<\/p>\n
All amounts due from Tenant and payable to Landlord, excluding Annual Base
\nRent, including, without limitation, if applicable, taxes and assessments
\npursuant to Section 7 hereof and insurance premiums pursuant to Section 9 and 12
\nhereof, shall be deemed to be Additional Rent and upon Tenant’s failure to pay
\nany such amount, Landlord, in addition to any other remedies, shall have the
\nsame remedies provided for Tenant’s failure to pay the Annual Base Rent (the
\nAnnual Base Rent, together with the Additional Rent, shall be collectively
\nreferred to as “Rent”). Tenant shall pay any and all sums of money or charges
\nrequired to be paid by Tenant under this Lease promptly when the same are due,
\nwithout any deductions or setoff whatsoever (except as expressly set forth
\nherein).<\/p>\n
5.5 Delinquency Charge
\n ——————<\/p>\n
If Tenant shall fail to pay all or any portion of a Monthly Installment of
\nBase Rent, as and within five (5) days after the date the same is due, in
\naddition to the Monthly Installment of Base Rent, Tenant shall pay a delinquency
\ncharge equal to 5 percent of the amount unpaid per month outstanding to
\nreimburse the Landlord for the costs incurred as the result of such late
\npayment. Such delinquency charge shall be paid with the next Monthly Installment
\nof Base Rent.<\/p>\n
5.6 Default Charge
\n ————–<\/p>\n
If Tenant shall default in any payment or expenditure other than Annual
\nBase Rent required to be paid or expended by Tenant under the terms hereof, then
\nLandlord may, at its option, make such payment or expenditure in accordance with
\nSection 21. In such event, the amount thereof shall be due and payable as
\nAdditional Rent to Landlord by Tenant with the next Monthly Installment of Base
\nRent, together with interest thereon at a rate equal to the sum of the then
\nprevailing “prime interest rate” (as hereinafter defined) plus 2% from the date
\nof such payment or expenditure by Landlord until the date of the payment by
\nTenant, to cover Landlord’s loss of the use of the funds and administrative
\ncosts resulting from Tenant’s failure. Upon Tenant’s failure to<\/p>\n
7<\/p>\n
pay said Additional Rent together with interest, such interest shall continue
\nfor each month or portion thereof outstanding until the date of payment. The
\n“prime interest rate” for purposes of this Lease shall mean the rate of interest
\nannounced by Wall Street Journal as the “prime interest rate”. The “prime
\ninterest rate” shall be determined as of the date of Landlord’s payment or
\nexpenditure. If the Wall Street Journal ceases to publish its “prime interest
\nrate”, the most comparable interest rate to that known as the “prime interest
\nrate” shall be used.<\/p>\n
SECTION 6<\/p>\n
UTILITIES
\n ———<\/p>\n
Tenant agrees to pay all charges made against the Demised Premises for gas,
\nheat, water, air conditioning, electricity, sanitary and storm sewage
\ndisposition, telephone and all other utilities during the Lease Term as the same
\nshall become due. Landlord shall not be liable to Tenant for the quality or
\nquantity of any such utilities, or for any interruption in the supply of any
\nsuch utilities.<\/p>\n
SECTION 7<\/p>\n
TAXES AND ASSESSMENTS
\n ———————<\/p>\n
7.1 Obligation
\n ———-<\/p>\n
Tenant agrees to pay all Taxes, as defined in Section 7.2, on the Demised
\nPremises for each lease year or partial lease years during the Lease Term. At
\nthe start of the Lease, taxes shall be prorated and treated as if paid in
\narrears with Landlord responsible for payment of taxes from January 1, 2000, to
\nthe Commencement Date. Thereafter, Tenant will be responsible for taxes each
\nyear including the year of termination. At termination, Tenant shall pay for
\ntaxes from January 1 through the date the premises have been turned over to
\nLandlord.<\/p>\n
7.2 Definition
\n ———-<\/p>\n
“Taxes” shall be defined as: (a) all taxes (either real or personal),
\nassessments (general or specific), all water and sewer charges, and all other
\ngovernmental impositions, which may be levied during the Lease Term upon the
\nland, buildings or improvements comprising the Demised Premises or any part
\nthereof; (b) a tax or surcharge of any kind or nature upon, against or with
\nrespect to the parking areas or the number of parking spaces on the Demised
\nPremises; and (c) all costs and expenses incurred by Landlord during
\nnegotiations for or contests of the amount of such taxes and assessments,
\nwithout regard to the result, including, without limitation, actual attorneys’
\nfees.<\/p>\n
7.3 Payments
\n ——–<\/p>\n
Taxes on the Demised Premises levied or assessed for or during the Lease
\nTerm shall be paid before any penalty interest is imposed or within thirty (30)
\ndays of issuance of a tax bill to the<\/p>\n
8<\/p>\n
Tenant (whichever occurs later). In the event a refund of Taxes previously paid
\nis obtained, Landlord shall credit the portion which relates to the Demised
\nPremises to the next payment due under this Section or after the termination of
\nthe Lease, refund such amounts to Tenant. A copy of a tax bill or assessment
\nbill submitted by Landlord to Tenant shall at all times be sufficient evidence
\nof the amount of Taxes assessed or levied against the property to which such
\nbill or return relates.<\/p>\n
7.4 Escrow
\n ——<\/p>\n
If Tenant fails to pay taxes within applicable notice and cure periods on
\nmore than two occasions during the term of the Lease, Landlord may, at its
\noption and upon written notice to Tenant, require that Taxes shall be paid to
\nLandlord in monthly installments on or before the first day of each calendar
\nmonth, in advance, in an amount estimated by Landlord; provided, that in the
\nevent Landlord is required under any mortgage covering the demised Premises, or
\nany portion thereof, to escrow Real Estate Taxes, Landlord may, but shall not be
\nobligated to, use the amount required to be so escrowed as a basis for its
\nestimate of the monthly installments due from Tenant hereunder. If Landlord
\nelects to require monthly installments, upon making such election, Tenant shall
\npay to Landlord an amount which, when added to the installment payments to be
\npaid by Tenant, will be sufficient to provide Landlord with the amount required
\nto pay the Taxes thirty (30) days before the Taxes are due. Subsequent to the
\nend of each lease year or partial lease, Landlord shall furnish Tenant with a
\nwritten statement of the actual amount of the Taxes on the Demised Premises. In
\nthe event no tax bill is available, Landlord will compute the amount of such
\ntax. If the total amount paid by Tenant under this Section 7.4 for any lease
\nyear during the Lease Term shall be less than the actual amount due from Tenant
\nfor such year, as shown on such statement, Tenant shall pay to Landlord the
\ndifference between the amount paid by Tenant and the actual amount due, such
\ndeficiency to be paid within thirty (30) days after demand therefor by Landlord;
\nand if the total amount paid by Tenant hereunder for any such year shall exceed
\nsuch actual amount due from Tenant for such year, such excess shall be credited
\nagainst the next installment of taxes and assessments due from Tenant to
\nLandlord hereunder or after the termination of the Lease, refund such amounts to
\nTenant. In the event a refund of Taxes previously paid is obtained, Landlord
\nshall credit the portion which relates to the Demised Premises to the next
\ninstallments due under this Section.<\/p>\n
7.5 Right to Contest Taxes
\n ———————-<\/p>\n
In the event the amount of the Taxes are not contested by Landlord, then
\nTenant, upon written notice to Landlord, shall have the right to contest the
\namount of the Taxes at Tenant’s sole cost and expense, by the appropriate
\nproceedings diligently contest in good faith and shall immediately pay any
\nincreases in the Taxes or shall be given a credit against monthly installments
\nthereof subsequently due (or, after the termination of the Lease, a refund) in
\nthe amount of any reductions in the Taxes. Notwithstanding such proceedings,
\nTenant shall promptly pay and discharge such Taxes and any penalties or interest
\nassessed thereon, unless such proceedings and the posting of a bond or other
\nsecurity shall (a) operate to prevent or stay the collection of the Taxes and
\nsecure any accruing penalties or interest and (b) operate to cure Landlord’s
\ndefault in the payment of Taxes required under any mortgage upon the Demised
\nPremises. Landlord agrees to<\/p>\n
9<\/p>\n
join Tenant in such proceedings, if necessary, provided Tenant pays all costs
\nand expenses incurred by Landlord, including actual attorneys’ fees.<\/p>\n
7.6 Tenant’s Taxes
\n ————–<\/p>\n
Tenant shall pay all real and personal property taxes levied or assessed
\nagainst Tenant’s property and improvements upon or affixed to the Demised
\nPremises, including taxes attributable to all alterations, additions, or
\nimprovements made by Tenant.<\/p>\n
7.7 Surplus Taxes
\n ————-<\/p>\n
Landlord’s obligation to refund overpayment of Taxes shall survive the
\ntermination of this Lease.<\/p>\n
SECTION 8<\/p>\n
USE OF DEMISED PREMISES
\n ———————–<\/p>\n
8.1 Use of Demised Premises
\n ———————–<\/p>\n
Tenant may use and occupy the Demised Premises during the Lease Term only
\nfor the purpose stated in Section 1, and attendant office use and other legal,
\nrelated uses and for no other purpose without the prior written consent of the
\nLandlord. Tenant shall not use or permit any person to use the Demised Premises
\nor any part thereof for any use or purpose other than the use stated in Section
\n1 or in violation of any law, statute, order, ordinance, code, rule or
\nregulation of any federal, state or municipal body or other governmental agency
\nor authority having jurisdiction thereof, including, without limitation,
\noccupational safety and health requirements, community right-to-know
\nrequirements, requirements pertaining to the possession, generation,
\ntransportation, treatment and disposal of hazardous substances and hazardous
\nwastes, or pollution standards or requirements (“Laws”), or any building and use
\nrestrictions (“Restrictions”) affecting the Demised Premises, if any. Subjection
\nto Section 10.2, Tenant shall comply with all such present and future Laws and
\nRestrictions affecting the Demised Premises and the cleanliness, safety,
\noccupation and use of the same, at Tenant’s sole cost and expense. Tenant shall
\npromptly notify Landlord of, and provide Landlord with copies of, all notices,
\nrequests, orders, complaints or other correspondence directed to Tenant from any
\nfederal, state or municipal body or governmental agency or authority pertaining
\nto any actual or alleged violation of Laws or Restrictions.<\/p>\n
8.2 Care of Demised Premises
\n ————————<\/p>\n
Tenant shall keep the Demised Premises orderly, neat, safe and clean and
\nfree from rubbish and dirt at all times and shall store all inventory, supplies,
\ntrash and garbage within the building or approved containers on the Demised
\nPremises. Tenant shall maintain the landscaping on the Demised Premises and keep
\nthe driveways and walkways within the Demised Premises free from snow and ice,
\nand shall arrange for the regular removal of snow during the winter months at
\nTenant’s expense and the pick up of trash and garbage at Tenant’s expense.
\nTenant shall not burn<\/p>\n
10<\/p>\n
any trash or garbage at any time in or about the Demised Premises. At the
\nexpiration of the term of this Lease, or the sooner termination thereof, Tenant
\nshall surrender the Demised Premises in as good condition and repair as existed
\nat the time Tenant took possession, reasonable wear and tear excepted.<\/p>\n
8.3 Hazardous Substances
\n ——————–<\/p>\n
Tenant and its agents, employees and contractors shall not generate,
\nmanufacture, refine, transport, treat, store, handle, dispose, transfer, produce
\nor process on or about the Demised Premises hazardous substances as defined in
\nSection 101(14) of the Comprehensive Environmental Response, Compensation, and
\nLiability Act, as amended, 42 U.S.C. (S)9601(14), hazardous wastes as defined in
\nSection 1004(5) of the Resource Conservation and Recovery Act, as amended, 42
\nU.S.C. (S)6903(5) and implementing regulations, hazardous wastes as defined in
\nthe Michigan Hazardous Waste Management Act, as amended, MCL (S)299.501 et seq,
\n — —
\nor extremely hazardous substances as defined in the Emergency Planning and
\nCommunity Right-To-Know Act of 1986, 42 U.S.C. (S)11001 et seq. (hereinafter
\n — —
\ncollectively referred to as “Hazardous Substances”) without Landlord’s prior
\nwritten consent. Landlord hereby approves Tenant’s use of diesel fuel for its
\ngenerator if said use of diesel fuel is in compliance with Federal, State and
\nlocal laws.<\/p>\n
8.4 Obligation of Tenant
\n ——————–<\/p>\n
The obligations and liabilities of Tenant and Landlord, under Sections 8.1
\n– 8.3, shall survive termination of this Lease.<\/p>\n
SECTION 9<\/p>\n
INDEMNITY
\n ———<\/p>\n
9.1 Indemnity
\n ———<\/p>\n
Tenant shall defend, indemnify and hold harmless Landlord and Landlord’s
\nofficers, directors, employees and agents, from and against any and all claims,
\nsuits, liabilities, damages, losses, costs or expenses, including, without
\nlimitation, reasonable legal, accounting, consulting, engineering and other
\nexpenses which may be imposed upon, incurred by, or asserted against Landlord or
\nLandlord’s officers, directors, employees or agents, for personal injuries,
\ndeath or property damage, damage to natural resources or environmental
\ncontamination (“Damages”) occurring or originating on or about the Demised
\nPremises from and after the Commencement Date and during the Lease Term, to the
\nextent due to the negligence or willful misconduct by Tenant or its agents,
\nemployees or contractors due to Tenant’s violation of any law, order or
\nregulation, or breach of Tenant’s obligations or representations under the
\nLease. The indemnities provided herein shall include attorneys’ fees incurred by
\nLandlord or Landlord’s officers, directors, employees and agents in connection
\nwith such Damages or to enforce the indemnity given hereunder.<\/p>\n
11<\/p>\n
9.2 Liability Insurance
\n ——————-<\/p>\n
Tenant shall procure and keep in effect during the Lease Term, for the
\nbenefit of Landlord and any mortgagee of the Demised Premises, commercial
\ngeneral liability insurance, including blanket contractual coverage in the
\namount of One Million ($1,000,000.00) Dollars for personal injury or death
\nresulting from one occurrence and the sum of Five Hundred Thousand ($500,000.00)
\nDollars for property damage resulting from any one occurrence. In addition,
\nTenant shall maintain excess insurance or “umbrella” coverage in the amount of
\nTwo Million ($2,000,000.00) Dollars. Such insurance policies shall name Landlord
\nand any mortgagee of the Demised Premises (at Landlord’s request) as additional
\ninsureds by specific endorsement.<\/p>\n
9.3 Tenant’s Contractor’s Insurance
\n ——————————-<\/p>\n
Tenant shall require any contractor of Tenant performing work on the
\nDemised Premises to take out and keep in force, at no expense to Landlord, (a)
\ncommercial general Liability insurance, including contractor’s liability
\ncoverage, contractual liability coverage, completed operations coverage, broad
\nform property damage endorsement and contractor’s protective liability coverage,
\nto afford protection to the limit, for each occurrence, of not less than Two
\nMillion ($2,000,000.00) Dollars with respect to personal injury or death and
\nFive Hundred Thousand ($500,000.00) Dollars with respect to property damage; and
\n(b) worker’s compensation or similar insurance in form and amounts required by
\nlaw. The liability insurance shall name Landlord and any mortgagee of the
\nDemised Premises, or any portion thereof, as additional insureds by specific
\nendorsement.<\/p>\n
9.4 Delivery of Policy and Special Endorsement
\n ——————————————<\/p>\n
The insurance policies required by this Section 10 shall contain provisions
\nor special endorsements satisfactory to Landlord and Landlord’s mortgagee, if
\nany, prohibiting cancellation, deletions or reductions in coverage either at the
\ninstance of Tenant or the insurance company issuing the policy, without at least
\n30 days prior written notice having been given to Landlord at the address stated
\nabove. Original Insurance Certificates including declaration page showing all
\ncoverages and amounts of coverage, together with receipts evidencing payment in
\nfull of the premiums thereon, shall be delivered promptly to Landlord and in no
\nevent less than 30 days prior to expiration of such insurance.<\/p>\n
SECTION 10<\/p>\n
MAINTENANCE AND REPAIRS
\n ———————–<\/p>\n
10.1 Maintenance And Repairs
\n ———————–<\/p>\n
Tenant shall, at its sole cost and expense, during the Lease Term, maintain
\nand repair and keep neat and in good appearance and condition the Demised
\nPremises, including, but not limited to, the roof (e.g., removal of snow),
\nexterior, interior, ceiling, electrical system, plumbing system,<\/p>\n
12<\/p>\n
H.V.A.C. system, storm sewers, sanitary sewers, water main, the driveways,
\nwalkways, parking area, lighting facilities, landscaping and land, which are
\npart of the Demised Premises. The plumbing system, including the sewage
\nfacility, serving the Demised Premises shall not be used for any purpose other
\nthan for which it was constructed and Tenant shall not introduce any matter
\ntherein which results in blocking such system. Tenant shall, at its sole cost
\nand expense, also repair or replace the driveways, walkways, parking areas, or
\nlandscaping on the Demised Premises. Tenant shall, at its sole cost and expense,
\ncontract with contractors acceptable to Landlord for the performance of all
\nmaintenance and repairs required of Tenant under this Lease. Tenant shall
\nperform such maintenance and repair so as to maintain the Demised Premises in a
\nfirst-class condition. The maintenance and repair obligations of Tenant
\nhereunder arising during the term of the Lease, shall survive termination of
\nthis Lease. All warranties provided by the contractor will be assigned to Tenant
\nfor benefit of Tenant at commencement of the Lease.<\/p>\n
10.2 Compliance With Laws
\n ——————–<\/p>\n
During the term of this Lease, Tenant shall make any repairs, additions,
\nmodifications or alterations to the Demised Premises, regardless of the nature
\nthereof, which are required by any Laws or Restrictions (as defined in Section
\n8.1) or required by the insurance carrier to maintain the insurance required
\nunder this Lease.<\/p>\n
SECTION 11<\/p>\n
TENANT’S ALTERATIONS
\n ——————–<\/p>\n
11.1 Alterations
\n ———–<\/p>\n
Tenant shall not make any alterations, additions, modifications or
\nimprovements (“Alterations”) to the Demised Premises without the prior written
\nconsent of Landlord. Landlord will not unreasonably withhold its consent with
\nrespect to Alterations. All Alterations made by either Landlord or Tenant to the
\nDemised Premises shall become the property of Landlord, shall remain upon and be
\nsurrendered with the Demised Premises at the termination of this Lease, without
\nmolestation or injury; unless Landlord consents in writing to Tenant’s removal
\nof such alterations and Tenant repairs any damage or injury caused thereby in a
\ngood and workmanlike manner. Notwithstanding anything to the contrary herein,
\nLandlord, at its option, may, at the time Landlord consents to an Alteration,
\nrequire Tenant, at Tenant’s sole cost and expense, to remove any Alterations
\nmade by Tenant during the Lease Term and to repair any damage or injury caused
\nthereby in a good and workmanlike manner at the expiration of the Lease Term.
\nAll Alterations made by Tenant or the removal thereof shall be made free of all
\nliens and encumbrances and in compliance with all Laws and Restrictions. Tenant
\nhereby indemnities and holds Landlord harmless from and against any such liens,
\nencumbrances and violations of Laws and Restrictions. The filing of any lien or
\nencumbrance, or the violation of Laws or Restrictions, shall constitute a
\nviolation hereunder. The repair obligations of Tenant hereunder shall survive
\nthe termination of this Lease.<\/p>\n
13<\/p>\n
11.2 Construction Liens
\n ——————<\/p>\n
Tenant shall not permit any construction liens to be filed against the
\nDemised Premises or any part thereof by reason of work, labor, services or
\nmaterials supplied or claimed to have been supplied to Tenant or any part
\nthereof through or under Tenant. If any such construction lien shall at any time
\nbe filed against the Demised Premises, Tenant shall cause the same to be
\ndischarged of record within 20 days after the date of filing the same. If Tenant
\nshall fail to discharge such construction lien within such period, then, in
\naddition to any other right or remedy of Landlord, Landlord may,, but shall not
\nbe obligated to, discharge the same either by paying the amount claimed to be
\ndue or by procuring the discharge of such lien by deposit in court or by giving
\nsecurity or in such other manner as is, or may be, prescribed by law. Any amount
\npaid by Landlord for any of the aforesaid purposes, and all actual legal and
\nother expenses of Landlord, including actual counsel fees, in or about procuring
\nthe discharge of such lien, together with all necessary disbursements in
\nconnection therewith, and together with interest thereon at the rate of prime
\nplus two (2%) percent per annum, but in no event higher than the legal limit,
\nfrom the date of payment, shall be repaid by Tenant to Landlord on demand, and
\nif unpaid may be treated as Additional Rent. Nothing herein contained shall
\nimply any consent or agreement on the part of Landlord to subject Landlord’s
\nestate to liability under any construction lien law.<\/p>\n
SECTION 12<\/p>\n
PROPERTY INSURANCE, REBUILDING
\n AND WAIVER OF SUBROGATION
\n ————————-<\/p>\n
12.1 Property Insurance
\n ——————<\/p>\n
A. Tenant shall, during the Lease Term, carry at its expense
\n insurance for the benefit of Landlord and any mortgagee of the Demised
\n Premises, or a portion thereof, against fire, vandalism, malicious mischief
\n and such other perils as are from time to time included in a policy of “all
\n risk” insurance, insuring the Demised Premises in an amount equal to the
\n full replacement and reconstruction cost and valued on a replacement cost
\n basis of the building and improvements which are a part of the Demised
\n Premises. If Tenant fails to maintain such insurance coverage, Landlord
\n may, at its option, procure such insurance for the account of Tenant and
\n the cost thereof shall be paid by Tenant to Landlord upon delivery to
\n Tenant of bills therefor. The insurer or insurers shall be such as may from
\n time to time be approved by Landlord. The policies of all such insurance
\n and all renewals thereof, together with receipts evidencing payment in full
\n of the premiums thereon, shall be delivered promptly to Landlord and in no
\n event less than 30 days prior to the expiration of such insurance. The
\n terms and conditions of all policies and endorsements thereto shall be in
\n form and content satisfactory to Landlord. All of the required policies of
\n insurance shall contain provisions satisfactory to Landlord prohibiting
\n cancellation, deletions or reductions in coverage, either at the instance
\n of the Tenant or of the insurance company issuing the policy, without at
\n least 30 days prior written notice having been given to Landlord at the
\n address of Landlord stated above, and shall name Landlord as a loss payee
\n and any<\/p>\n
14<\/p>\n
mortgagee of the Demised Premises as a loss payee under the standard
\n mortgage loss payable endorsement. Tenant shall not, without the prior
\n written consent of Landlord, cancel, alter, change, amend, modify, delete
\n or reduce the coverage of any required policy of insurance which results in
\n Tenant failing to have insurance coverage as required hereby. In the event
\n of loss or damage, the proceeds of the insurance shall be paid to Landlord
\n and such mortgagee alone. Landlord is authorized to adjust and compromise
\n such loss without the consent of Tenant, to collect, receive and receipt
\n for such proceeds in the name of Landlord and Tenant. The power granted
\n hereby shall be deemed to be coupled with an interest and shall be
\n irrevocable.<\/p>\n
B. Tenant shall, during the Lease Term, carry rental interruption
\n insurance naming Landlord as the insured party, which insurance shall be
\n carried in amounts equal to Tenant’s Annual Base Rent for twelve (12) full
\n months under this Lease plus the total of the estimated costs to Tenant of
\n taxes, assessments, utilities, insurance premiums and common facilities
\n maintenance costs for such 12-month period with proceeds payable to
\n Landlord.<\/p>\n
C. Tenant shall, during the Lease Term, carry, at its expense,
\n insurance against fire, vandalism, windstorm, explosion, smoke damage,
\n malicious mischief, and such other perils as are from time to time included
\n in an “all risk” policy of insurance, insuring Tenant’s merchandise, trade
\n fixtures, furnishings, equipment and all other items of personal property
\n of Tenant located on or within the Demised Premises, in an amount equal to
\n not less than 80 percent of the actual replacement cost thereof and furnish
\n Landlord with a certificate evidencing such coverage. If Tenant fails to
\n maintain such insurance coverage, Landlord may, at its option, procure such
\n insurance for the account of Tenant and the cost thereof shall be paid by
\n Tenant to Landlord upon delivery to Tenant of bills therefor.<\/p>\n
12.2 Rebuilding
\n ———-<\/p>\n
In the event, during the Lease Term, the improvements on the Demised
\nPremises are damaged or destroyed in whole or in part by fire or other casualty
\ninsured under the insurance carried by Tenant pursuant to Section 12., then
\nLandlord shall, after the adjustment of the insurance loss, immediately commence
\nand diligently pursue the restoration of such improvements to good and
\ntenantable condition unless Landlord shall elect not to rebuild as hereinafter
\nprovided. If: (a) the insurance proceeds are insufficient to pay the full cost
\nof the repairs (unless Tenant deposits sufficient funds with Landlord pursuant
\nto Section 13.3 to pay the full cost of the repairs), (b) more than 35 percent
\nof the improvements on the Demised Premises shall be destroyed by fire or other
\ncasualty, or (c) during the last 24 months of the Lease Term, more than 20
\npercent of the improvements on the Demised Premises shall be destroyed by fire
\nor other casualty, Landlord may, at its option, terminate this Lease by notice
\nin writing delivered to Tenant within 120 days after the occurrence of such fire
\nor other casualty or repair to the improvements on the Demised Premises. If
\nLandlord is obligated, or elects, to perform such repairs, the improvements on
\nthe Demised Premises are partially or totally untenable, then the Rent shall be
\nproportionately reduced during the period of rebuilding, based upon the extent
\nto which Tenant’s use of the Demised Premises is diminished. During such time
\nperiod, Tenant shall have in effect<\/p>\n
15<\/p>\n
renter’s insurance which pays to Landlord an amount equal to the monthly rental
\npayment as set forth in Section 12.1 (b) of this Lease.<\/p>\n
12.3 Tenant’s Deposit for Rebuilding
\n ——————————-<\/p>\n
If the insurance proceeds available for rebuilding are insufficient to
\ncover the cost of repair or restoration of the Demised Premises as required
\nhereunder, Tenant, so long as Tenant is not in default, may elect to deposit
\nwith Landlord an amount which in combination with the insurance proceeds shall
\nbe sufficient for such repairs or restorations. In the event Tenant elects not
\nto deposit such funds, then Landlord shall be relieved of any obligation to
\nrepair or restore the Demised Premises.<\/p>\n
12.4 Waiver of Subrogation
\n ———————<\/p>\n
Any insurance policy carried by Landlord or Tenant or any policy covering
\nboth the interest of Landlord or Tenant under this Section 12 shall include a
\nprovision under which the insurance company waives all right of recovery by way
\nof subrogation against Landlord or Tenant in connection with any loss or damage
\ncovered by any such policy. Landlord or Tenant hereby release and discharge each
\nother from any liability whatsoever arising from any loss, damage or injury
\ncaused by fire or other casualty to the extent of the paid insurance proceeds
\ncoverting such loss, damage or injury.<\/p>\n
SECTION 13<\/p>\n
EMINENT DOMAIN
\n ————–<\/p>\n
13.1 Total Condemnation
\n ——————<\/p>\n
If the whole of the Demised Premises shall be taken by any condemning
\nauthority under the power of eminent domain, then the term of this Lease shall
\ncease as of the date actual physical possession of the Demised Premises is
\ntransferred to such condemning authority and the Rent shall be paid up to that
\nday with a proportionate refund by Landlord of such Rent as may have been paid
\nin advance for a period subsequent to the date of the transfer of actual
\nphysical possession.<\/p>\n
13.2 Partial Condemnation
\n ——————–<\/p>\n
If only a part of the Demised Premises shall be taken by any condemning
\nauthority under the power of eminent domain, then, except as otherwise provided
\nin this Section, this Lease and the term shall continue in full force and effect
\nand there shall be no reduction in the Rent. From and after the date actual
\nphysical possession of a portion of the building or parking area on the Demised
\nPremises is transferred to such condemning authority, the Rent shall be reduced
\nbased on the extent to which Tenant’s use of the Demised Premises is diminished.
\nIf (a) more than 20 percent of the floor area of all buildings on the Demised
\nPremises shall be taken under eminent<\/p>\n
16<\/p>\n
domain, or (b) more than 20 percent of the parking spaces on the Demised
\nPremises shall be taken under eminent domain and Landlord is unable to provide
\nparking spaces on land immediately contiguous to the Demised Premises equal to
\none-half of the number of parking spaces taken, Tenant shall have the right to
\nterminate this Lease and declare the same null and void, by written notice of
\nsuch intention to the other party within 30 days after the date the order is
\nentered in such eminent domain proceeding establishing the date upon which
\nactual physical possession shall be transferred to the condemning authority. In
\nthe event Tenant does not exercise said right of termination, the Lease Term
\nshall cease only on the part of the Demised Premises so taken as of the date
\nactual physical possession is transferred to the condemning authority and Tenant
\nshall pay Annual Base Rent and Additional Rent up to that day, with appropriate
\nrefund by Landlord of such Rent as may have been paid in advance for a period
\nsubsequent to the date actual physical possession is transferred, and thereafter
\nall the terms herein provided shall continue in effect, except that the Rent
\nshall be reduced in the proportion stated above and Landlord shall, at its own
\ncost and expense, make all the necessary repairs or alterations to the remaining
\nDemised Premises so as to cause it to be a complete architectural unit.<\/p>\n
13.3 Landlord’s and Tenant’s Damages
\n ——————————-<\/p>\n
All damages awarded for such taking under the power of eminent domain,
\nwhether for the whole or a part of the Demised Premises, shall belong to and be
\nthe property of Landlord whether such damages shall be awarded as compensation
\nfor diminution in value to the leasehold or to the fee of the Demised Premises;
\nprovided, however, that Landlord shall not be entitled to the award made for
\ndepreciation to, and cost of removal of, Tenant’s stock and fixtures, Tenant’s
\nrelocation costs, lost goodwill, the unamortized value of improvements paid for
\nby Tenant and any “bonus value” under the Lease.<\/p>\n
SECTION 14<\/p>\n
ACCESS TO PREMISES
\n ——————<\/p>\n
Landlord or Landlord’s agent shall have the right to enter the Demised
\nPremises at all reasonable times to inspect or examine the same, and to show
\nthem to prospective purchasers or mortgagees of the Demised Premises and to make
\nsuch tests, repairs, alterations, improvements or additions as Landlord may deem
\nnecessary or desirable, and Landlord shall be allowed to take all material into
\nand upon the Demised Premises that may be required therefor without the same
\nconstituting an eviction of Tenant in whole or in part, and the Annual Base Rent
\nand Additional Rent shall in no way abate while said repairs, alterations,
\nimprovements, or additions are being made, by reason of loss or interruption of
\nthe business of Tenant, or otherwise. During the six months prior to the
\nexpiration of the Lease Term or any renewal term, Landlord may exhibit the
\nDemised Premises to prospective lessees and place upon the Demised Premises the
\nusual notices of “For Sale”, “For Lease” or “For Rent” signs advertising the
\nspace which will be available three (3) months prior to vacancy.<\/p>\n
17<\/p>\n
SECTION 15<\/p>\n
FIXTURES AND EQUIPMENT
\n ———————-<\/p>\n
Subject to Section 11.1, all fixtures and equipment installed by Tenant
\nduring the term of this Lease which are incorporated and affixed to the
\nbuildings or improvements and cannot be removed without substantial damage or
\ninjury to the buildings or improvements shall not be removed without Landlord’s
\nconsent, and all fixtures and equipment not removed shall remain the property of
\nLandlord at the termination of the Lease Term. In the event Landlord consents to
\nsuch removal, Tenant shall remove such fixtures in accordance with all
\napplicable Laws and Restrictions and shall repair any such damage or injury in a
\ngood and workmanlike manner.<\/p>\n
SECTION 16<\/p>\n
BANKRUPTCY AND INSOLVENCY OF TENANT
\n ———————————–<\/p>\n
If the estate created hereby shall be taken in execution or by other
\nprocess of law, or if Tenant shall be declared bankrupt or insolvent, according
\nto law, or if any receiver be appointed for the business and property of Tenant
\nor if any assignment shall be made of Tenant’s property for the benefit of
\ncreditors (and as to such matters involuntarily taken against Tenant, Tenant,
\nhas not within 60 days thereof obtained release or discharge therefrom), then
\nthis Lease may be cancelled at the option of Landlord. If, as a matter of law,
\nLandlord has no right upon the bankruptcy of Tenant, to terminate this Lease,
\nthen the rights of Tenant, as debtor, or its trustee, shall be deemed abandoned
\nor rejected unless Tenant, as debtor or its trustee, (a) within 60 days after
\nthe date of the Order for Relief under Chapter 7 of the Bankruptcy Code or 60
\ndays after the date the Petition is filed under Chapter 11 of the Bankruptcy
\nCode assumes in writing the obligations under this Lease (b) cures or adequately
\nassures the cure of all defaults existing under this Lease on Tenant’s part
\nwithin 60 days and (c) furnishes adequate assurances of future performance of
\nthe obligations of Tenant under this Lease within such 60 days. Adequate
\nassurance of curing defaults means the posting with Landlord of a sum in cash
\nsufficient to defray the costs of such cure. Adequate assurance of future
\nperformance of the Tenant’s obligations under this Lease means increasing any
\nexisting security deposit or creating a security deposit in an amount equal to
\nthree Monthly Installments of Base Rent.<\/p>\n
Tenant shall not be permitted to assume and assign this Lease in
\nconnection with any bankruptcy or insolvency proceedings without full and
\ncomplete compliance with the following provisions: (a) Landlord is provided with
\nthe following information regarding the party desiring to assume the Lease
\n(“Assumptor”) which Landlord in its reasonable discretion deems sufficient (1)
\norganizational information regarding the Assumptor (2) audited financial
\nstatements for the three most recent fiscal years, and (3) such other
\ninformation as Landlord deems appropriate, (b) Landlord determines that the use
\nof the Demised Premises by the intended Assignee is compatible with the
\ncharacter of the Building, (c) all existing defaults under this Lease are cured
\nat least ten days prior to any hearings in connection with Tenant’s request to
\nassume and assign the Lease, (d) the Assumptor at any such hearing provides
\nadequate assurance of its future performance of the<\/p>\n
18<\/p>\n
Lease as determined by Landlord in its reasonable discretion, which adequately
\nassurance shall include at least the following: (1) posting of security deposit
\nequal to three Monthly Installments of Base Rent, if such was not already posted
\nby Tenant, (2) establishing with Landlord an escrow for the full cost of all
\nreal estate taxes, insurance, and common area maintenance charges as required
\nunder the Lease for the next 12 months of the Lease and thereafter on an annual
\nbasis in advance, and (3) the Assumptor executes a written agreement assuming
\nthe Lease and such Lease amendments as are necessary, which agreements and
\namendments are satisfactory to Landlord in its reasonable discretion.<\/p>\n
SECTION 17<\/p>\n
RIGHT TO MORTGAGE
\n —————–<\/p>\n
Landlord reserves the absolute right to subject and subordinate this
\nLease, at all times, to the lien of any mortgage or mortgages now or hereafter
\nplaced upon the Demised Premises; provided Tenant’s right of possession will not
\ndisturbed by the mortgagee of any mortgage upon the Demised Premises in
\nconnection with any mortgage foreclosure proceedings so long as Tenant is in not
\ndefault hereunder. In the event Landlord exercises its right hereunder, Tenant
\nhereby agrees to execute and deliver, or join in the execution and delivery of
\nan agreement which shall provide, among other things, (a) that this Lease is
\nsubordinate to the lien of any mortgage or mortgages upon the Demised Premises,
\n(b) that the Tenant’s right of possession will not be disturbed by the mortgagee
\nin connection with any mortgage foreclosure proceedings, so long as Tenant is
\nnot in default, and (c) that the Tenant shall attorn to any foreclosing
\nmortgagee or purchaser at the foreclosure sale.<\/p>\n
SECTION 18<\/p>\n
ASSIGNMENT, SUBLETTING AND TRANSFERS BY TENANT
\n ———————————————-<\/p>\n
Tenant shall not sell, assign, sublet, hypothecate, encumber, mortgage or
\nin any manner transfer this Lease or any estate or interest therein (including
\nany transfer by operation of law or otherwise), the Demised Premises or any part
\nthereof or permit the use of the Demised Premises by any Third Party
\n(collectively “Transfer”) without the prior written consent of the Landlord
\nwhich shall not be reasonably withheld.<\/p>\n
The acceptance of Rent or Additional Rent from an assignee, subtenant or
\noccupant shall not constitute a release of Tenant from the obligations and
\ncovenants in this Lease. Tenant shall remain liable under this Lease until
\nLandlord executes and delivers a written release of such liability. Landlord’s
\nconsent hereunder shall not be unreasonably withheld. In the event of a Transfer
\nby Tenant, with or without Landlord’s consent, then fifty (50%) per cent of all
\nRent, sums of money or other economic considerations owed to or received by
\nTenant, which exceed, in the aggregate, the total sums of Rent, Additional Rent
\nor otherwise which Tenant is obligated to pay Landlord under this Lease, after
\nfirst deducting therefrom Tenant’s actual costs to effect<\/p>\n
19<\/p>\n
the transfer, shall be payable to Landlord as Additional Rent under this Lease
\nwithout affecting or reducing any obligations of Tenant hereunder.<\/p>\n
SECTION 19<\/p>\n
SALE OR TRANSFER
\n —————-<\/p>\n
Landlord shall have the right to sell, transfer or assign the Demised
\nPremise (“Conveyance”). In the event of Conveyance, Tenant shall attorn to the
\npurchaser, transferee or assignee (“Transferee”) and recognize such Transferee
\nas Landlord under this Lease and Landlord shall be relieved from all subsequent
\nobligations and liabilities under this Lease, provided such obligations are
\nassumed in writing by such Transferee and a copy thereof is provided to Tenant.<\/p>\n
SECTION 20<\/p>\n
DEFAULT. RE-ENTRY AND DAMAGES
\n —————————–<\/p>\n
20.1 Default
\n ——-<\/p>\n
The following shall constitute a default under this Lease: (a) Failure to
\npay when due any Annual Base Rent or Additional Rent due hereunder on the day
\nthe same shall be due and such failure remains uncured for five (5) days
\nfollowing written notice; (b) Failure to perform any of the terms and conditions
\nunder this Lease, other than the payment of Annual Base Rent or Additional Rent,
\nand such failure remains uncured for thirty (30) days following written notice
\nor such longer period as may be reasonably required to effect such cure provided
\nTenant diligently pursues such cure; (c) Landlord has elected to cure Tenant’s
\ndefault under Section 21 and Tenant has failed to pay Landlord the cost and
\nexpenses incurred to cure such default within 15 days after demand; or (d) an
\nevent of bankruptcy or insolvency in violation of Section 16 has occurred;<\/p>\n
20.2 Re-Entry and Damages
\n ——————–<\/p>\n
In the event of Tenant’s default, Landlord shall, in addition to all of
\nits other remedies under this Lease, or permitted in law or equity, have the
\nright to re-enter the Demised Premises, with process of law, to remove all
\npersons and property therefrom. Upon such default, Landlord, at its option, may
\nterminate this Lease, or without terminating this Lease, relet the Premises or
\nany part thereof on such reasonable terms and reasonable conditions.<\/p>\n
No re-entry or taking possession of the Demised Premises by Landlord shall
\nbe construed as an election on its part to terminate this Lease unless written
\nnotice of such intention is given to Tenant. It is understood between the
\nparties that the Tenant shall not be liable for any damages caused by a third-
\nparty entering into a Lease with Landlord in replacement of Tenant. At all times
\nherein, Landlord shall have the duty to mitigate damages.<\/p>\n
20<\/p>\n
In the event Landlord elects to terminate this Lease, then Landlord shall
\nhave the right to accelerate all of the Annual Base Rent and Additional Rent due
\nhereunder for the balance of the term of this Lease and Tenant shall forthwith
\npay to Landlord upon demand, as liquidated damages, the deficiency between the
\npresent value of the amount of said accelerated rent and the proceeds of
\nreletting, if any, for what would have otherwise constituted the balance of the
\nLease Term or the reasonable rental value of the Demised Premises for such
\nbalance of the Lease Term if the Demised Premises are not relet by Landlord
\nwithin 30 days following Tenant’s default. Upon acceleration, for the purpose of
\ndetermining the Additional Rent for the remainder of the Lease Term, the
\nAdditional Rent paid during the 12 months immediately preceding the date of
\nacceleration shall be assumed to be the amount of Additional Rent which Tenant
\nwould have paid during the remainder of the Lease Term. In computing such
\nliquidated damages there shall be added to such deficiency any expenses incurred
\nin connection with obtaining possession of the Demised Premises and reletting
\nthe Demised Premises (to the extent allocable to the remainder of the term),
\nwhether such reletting is successful or not, which expenses include, but are not
\nlimited to, actual attorney fees, brokerage fees and expenses, advertising
\nexpenses, reasonable alterations and repairs to the Demised Premises, and
\ninspection fees.<\/p>\n
20.3 Waiver of Landlord’s Liability
\n ——————————<\/p>\n
Whether or not Landlord terminates the Lease because of Tenant’s default,
\nLandlord shall have no liability or responsibility in any way whatsoever for its
\nfailure to relet the Demised Premises or, in the event of reletting, for failure
\nto collect the Rent under such reletting. The failure of Landlord to relet the
\nDemised Premises or any part thereof shall not release or affect Tenant’s
\nliability for Rent or damages.<\/p>\n
20.4 Landlord’s Rights Cumulative
\n —————————-<\/p>\n
All the rights and remedies of Landlord hereunder shall be cumulative and
\nin addition to all other rights and remedies allowed by law or equity and may be
\nexercised separately or jointly without constituting an election of remedies.<\/p>\n
20.5 Waiver of Jury Trial and Counterclaim
\n ————————————-<\/p>\n
(Deleted upon agreement of parties.)<\/p>\n
20.6 Non-Liability
\n ————-<\/p>\n
Subject to Sections 9.1 and 9.3, Landlord shall not be responsible or
\nliable to Tenant for any loss or damage that may be occasioned by or through the
\nacts or omissions of persons occupying adjoining premises or for any loss or
\ndamage resulting to Tenant or its property from burst, stopped or leaking water,
\ngas, sewer or steam pipes, or for any damage or loss of property within the
\nDemised Premises from any cause whatsoever, and no such occurrence shall be
\ndeemed to be an actual or constructive eviction from the Demised Premises or
\nresult in an abatement of rental.<\/p>\n
21<\/p>\n
SECTION 21<\/p>\n
RIGHT TO CURE DEFAULTS
\n ———————-<\/p>\n
If Tenant defaults in the performance of any provision of this Lease,
\nLandlord shall have the right (but not the obligation) in addition to any and
\nother rights and remedies in the event of default, to cure such default for the
\naccount of Tenant, without prior notice to Tenant, and Tenant shall upon receipt
\nof notice thereof and demand for payment from Landlord pay any payment or
\nexpenditure made by Landlord with the next Monthly Installment of Base Rent,
\ntogether with interest at the “prime interest rate” as defined in Section 5.6
\nplus 2%.<\/p>\n
SECTION 22<\/p>\n
QUIET ENJOYMENT
\n —————<\/p>\n
Landlord covenants that so long as Tenant is not in default the terms and
\nconditions of this Lease, Tenant may peacefully and quietly hold and enjoy the
\nDemised Premises for the Lease term without interference by Landlord or any
\nperson claiming by, through or under Landlord.<\/p>\n
SECTION 23<\/p>\n
HOLDING OVER
\n ————<\/p>\n
In the event of Tenant holding over after the expiration of the Term of
\nthis Lease, then the tenancy shall continue from month-to-month in the absence
\nof a written agreement to the contrary, subject to all the terms and provisions
\nhereof, except the Monthly Installment of Base Rent shall be equal to one
\nhundred twenty-five (125%) percent of the Monthly Installment of Base Rent, due
\nin the last full month of the lease Term.<\/p>\n
SECTION 24<\/p>\n
CUMULATIVE REMEDIES AND WAIVER<\/p>\n
24.1 Cumulative Remedies
\n ——————-<\/p>\n
Each and every right, remedy and benefit provided by this Lease to
\nLandlord shall be cumulative and shall not be exclusive of any other right,
\nremedy or benefit allowed by law. These remedies may be exercised jointly or
\nseverally without constituting an election of remedies.<\/p>\n
22<\/p>\n
24.2 Waiver
\n ——<\/p>\n
One or more waivers by Landlord of any term and condition hereunder or
\ndefault by Tenant hereunder shall not be construed as a waiver of such term and
\ncondition or default in the future or any subsequent default for the same cause.
\nAny consent or approval given by Landlord requiring such consent or approval
\nshall not constitute consent or approval to any subsequent similar act by
\nTenant.<\/p>\n
No payment by Tenant or receipt by Landlord of a lesser amount than the
\nMonthly Installment of Base Rent shall be deemed to be other than on account of
\nthe earliest stipulated Rent, nor shall any endorsement or statement on any
\ncheck or any letter accompanying any check or payment of Rent be deemed an
\naccord and satisfaction, and Landlord shall accept such check or payment without
\nprejudice to Landlord’s right to recover the balance of such Rent or pursue any
\nother remedy in this Lease provided.<\/p>\n
SECTION 25<\/p>\n
OPTION TO EXPAND BUILDING SPACE
\n ——————————-<\/p>\n
In the event the parties desire to expand the building space, the parties
\nshall amend this lease agreement to provide for such expansion.<\/p>\n
SECTION 26<\/p>\n
DEFINITION OF
\n ————-
\n LANDLORD’S LIABILITY
\n ——————–<\/p>\n
The term “Landlord” as used in this Lease so far as covenants or
\nobligations on the part of Landlord are concerned shall be limited to mean and
\ninclude only the owner or owners at the time in question of the fee of the
\nDemised Premises, and in the event of any transfer or transfers of the title to
\nsuch fee (and the written assumption by such transferee of Landlord’s
\nobligations hereunder) Landlord herein named (and in case of any subsequent
\ntransfers or conveyances, the then grantor) shall be automatically freed and
\nrelieved from and after the date of such transfer or conveyance of all personal
\nLiability as respects to the performance of any covenants or obligations on the
\npart of Landlord contained in this Lease thereafter to be performed, provided
\nthat any funds in the hands of such Landlord or the then grantor at the time of
\nsuch transfer in which Tenant has an interest, shall be turned over to the
\ngrantee and any amount then due and payable to Tenant by Landlord or the then
\ngrantor under any provision of this Lease, shall be paid to Tenant, it being
\nintended hereby that the covenants and obligations contained in this Lease on
\nthe part of Landlord shall, subject as aforesaid, be binding on Landlord, its
\nsuccessors and assigns, only during and in respect of their respective
\nsuccessive periods of ownership.<\/p>\n
23<\/p>\n
If Landlord shall fail to perform any covenant, term or condition of this
\nLease upon Landlord’s part to be performed, and if as a consequence of such
\ndefault Tenant shall recover a money judgment against Landlord, such judgment
\nshall be limited to Landlord’s interest in the Project, including any sale,
\ninsurance or condemnation proceeds thereof, and Landlord shall not be liable for
\nany deficiency.<\/p>\n
SECTION 27<\/p>\n
WASTE
\n —–<\/p>\n
Tenant and its employees and agents shall not commit any waste upon the
\nDemised Premises.<\/p>\n
SECTION 28<\/p>\n
SIGNS
\n —–<\/p>\n
Tenant will not place or cause to be placed or maintained any sign or
\nadvertising matter of any kind anywhere on the Demised Premises, except as
\nagreed upon by both parties. Tenant further agrees to maintain in good condition
\nand repair at all times any such sign or advertising matter of any kind which
\nhas been approved by Landlord for use by Tenant.<\/p>\n
SECTION 29<\/p>\n
SECURITY DEPOSIT
\n —————-<\/p>\n
The Landlord herewith acknowledges that no Security Deposit is needed.
\nHowever, if Tenant is more than five (5) days late with rent payments on three
\nor more occasions during a calendar year, then Landlord may elect to require
\nTenant to provide a security deposit equal to one month’s rent. Said Security
\nDeposit shall be paid at the time of the next rent payment.<\/p>\n
SECTION 30<\/p>\n
MISCELLANEOUS
\n ————-<\/p>\n
30.1 Condition of Demised Premises
\n —————————–<\/p>\n
Tenant is fully familiar with the proposed plans and the intended physical
\nconditions of the Demised Premises and except as expressly set forth herein,
\nLandlord has made no representations of whatever nature in connection with the
\ncondition of the Demised Premises.<\/p>\n
24<\/p>\n
30.2 Lease Changes Required By Lender
\n ——————————–<\/p>\n
(This section is blank by agreement of the parties)<\/p>\n
30.3 Entire Agreement
\n —————-<\/p>\n
This Lease and exhibits attached hereto and forming a part hereof, set
\nforth all of the covenants, agreements, stipulations, promises, conditions,
\nunderstandings and representations, hereinafter collectively “Representations”
\nbetween Landlord and Tenant concerning the Demised Premises and the buildings
\nand improvements to be constructed thereon. Landlord and Tenant agree that there
\nare no Representations other than set forth herein and agree to make no claims
\nagainst each other based upon Representations not set forth herein.<\/p>\n
30.4 Modification
\n ————<\/p>\n
This Lease shall not be modified or amended unless by a writing signed by
\nLandlord and Tenant.<\/p>\n
30.5 Joint Venture, Mortgage
\n ———————–<\/p>\n
Nothing contained herein shall be deemed or construed by the parties
\nhereto, nor by any third party, as creating relationship of mortgagor and
\nmortgagee, principal and agent or of partnership or of joint venture between the
\nparties hereto, it being understood and agreed that neither this method of
\ncomputation of Rent, nor any other provision contained herein, nor any acts of
\nthe parties herein, shall be deemed to create any relationship between the
\nparties hereto other than the relationship of lessor and lessee.<\/p>\n
30.6 Notices
\n ——-<\/p>\n
Except as specifically provided otherwise in this Lease, any notices or
\ndemands required under this Lease shall be given in writing and either delivered
\npersonally or sent by certified mail, return receipt requested, postage prepaid
\nand addressed to the address of Landlord or Tenant as set forth in Section 1
\nhereof or such other address as Landlord or Tenant shall designate from time to
\ntime by written notice to the other and shall be deemed received three days
\nafter being deposited in the mail or upon personal hand-delivery.<\/p>\n
30.7 Survival
\n ——–<\/p>\n
Any obligation of Tenant under this Lease which is not performed in full
\nprior to the termination of this Lease shall survive the termination of this
\nLease and continue in full force and effect until performed in full.<\/p>\n
25<\/p>\n
30.8 Estoppel Certificate
\n ——————–<\/p>\n
Upon request by Landlord, Tenant shall, from time to time, execute,
\nacknowledge and deliver to Landlord a written statement certifying that this
\nLease is in full force and effect and unmodified (or if modified specifying the
\nnature of the modification), the dates to which Rent and other charges have been
\npaid, that Landlord is not in default hereunder (or if in default, specifying
\nthe nature of any default) and such other matters pertaining to the Lease and
\nTenant’s occupancy of the Demised Premises as Landlord may reasonably request.
\nIt is understood that such statement may be relied upon by Landlord, a
\nprospective purchaser, mortgagee or assignee of any mortgagee of Landlord’s
\ninterest in the Demised Premises or this Lease.<\/p>\n
30.9 Gender
\n ——<\/p>\n
Whenever the singular is used herein, the same shall include the plural
\nand the masculine, feminine and neuter genders.<\/p>\n
30.10 Captions and Section Numbers
\n —————————-<\/p>\n
The captions, section numbers, article numbers, and index appearing in
\nthis Lease are inserted only as a matter of convenience and in no way define,
\nlimit, construe, or describe the scope or intent of such sections or articles of
\nthis Lease nor in any way affect this Lease.<\/p>\n
30.11 Broker’s Commission
\n ——————-<\/p>\n
A real estate commission is owed to Spallino Reid, Corporate Real Estate
\nServices and The Miller Group payable by the Landlord. Tenant shall have no
\nliability for payment of any broker commissions..<\/p>\n
30.12 Recording
\n ———<\/p>\n
Landlord and Tenant shall record a memorandum of this Lease promptly on
\nLease execution.<\/p>\n
30.13 Execution of Lease
\n ——————<\/p>\n
The submission of this Lease for examination does not constitute a
\nreservation of, or option for, the Demised Premises, and this Lease shall become
\neffective as a lease only upon execution and delivery thereof by Landlord and
\nTenant.<\/p>\n
30.14 Construction
\n ————<\/p>\n
This Lease shall be construed and enforced in accordance with the laws of
\nthe State of Michigan. If any provision of this Lease, or the application
\nthereof to any person or circumstances, shall, to any extent be invalid or
\nunenforceable, the remaining provisions of this Lease shall not be affected
\nthereby and shall be valid and enforceable.<\/p>\n
26<\/p>\n
30.15 Binding Effect
\n ————–<\/p>\n
This Lease shall be binding upon and inure to the benefit of the parties
\nhereto and their respective heirs, legal representatives, successors, assigns
\nand permitted transferees..<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day
\nand year first above written.<\/p>\n
IN THE PRESENCE OF: LANDLORD: SSP ASSOCIATES, INC.,
\n A Michigan Corporation<\/p>\n
\/s\/ [ILLEGIBLE]^^ By: \/s\/ [ILLEGIBLE]^^
\n————————– ———————————-
\n Its: President<\/p>\n
TENANT: CONCENTRIC NETWORK
\n CORPORATION<\/p>\n
\/s\/ [ILLEGIBLE]^^ By: \/s\/ Henry R. Nothhaft
\n————————– ———————————-
\n Its: Chairman, President, & CEO<\/p>\n
PREPARED BY:
\nROBERT A. JAREMA (P31537)
\nSmith, Bovill, Fisher, Meyer
\n & Borchard, P.C.
\n200 St. Andrews Road
\nSaginaw, MI 48603
\n(517) 792-9641<\/p>\n
27<\/p>\n
EXHIBIT A<\/p>\n
11\/30\/99<\/p>\n
LEGAL DESCRIPTION FOR CONCENTRIC PARCEL<\/p>\n
Beginning 330 feet North 89 deg 18 mm 00 sec West and
\n 561.80 feet South 0 deg 09 min 30 sec East of the North 1\/4 Corner of
\n Section 1,
\n T12N, R4E, Carrollton Township, Saginaw County, Michigan;
\n Thence South 0 deg 09 min 30 sec East 707.15 feet;
\n Thence North 89 deg 47 min 00 sec West 191 feet;
\n Thence North 0 deg 09 min 30 sec West 99 feet;
\n Thence North 89 deg 47 min 00 sec West 304 feet;
\n Thence North 0 deg 09 min 30 sec West 608.15 feet;
\n Thence South 89 deg 47 min 00 sec East 495 feet to the place of
\n beginning
\n Consisting of 7.34 acres.<\/p>\n
PARCEL INCLUDES 80,000 SQ FEET OF BUILDING AND THE REQUIRED PARKING.
\n DETENTION POND AND THE DRAIN ARE NOT INCLUDED.<\/p>\n
Jerry Schafer
\n 631 1245<\/p>\n
[FLOORPLAN]<\/p>\n
EXHIBIT C<\/p>\n
TENANT REQUIREMENTS
\n ——————-<\/p>\n
The following is an itemized list of the tenant improvements required for
\nConcentric Network Incorporated. The proposal shall address but shall not be
\nlimited to the improvements described herein for your reference.<\/p>\n
Hard Walls
\n– 4 Conference Rooms (accommodate 4-6 people and strategically located
\nthroughout the facility).
\n– 2 Large Conference Rooms (approx. 12×30)
\n– 3-5 Private Offices (approx. 12×12)
\n– 1 Executive Office (approx. 12×16)
\n– 1 Reception Area to accommodate two people with side room for storage, mail,
\ncopy, fax
\n**All offices require a front glass wall, and some form of sound proofing<\/p>\n
– 4 Supply rooms (approx. 8×10)
\n– 1 Employee lounge area (approx. 20×20) and located by the kitchen area.
\n– 1 Kitchen Area (approx. 30×30)
\n– 2 Coffee Stations strategically located
\n– 3 Training Rooms (approx. 16×30)
\n– 4 Telecommunication Rooms;
\n One (1) room which contains fiber, data and voice equipment centrally
\n located in the facility (approx. 25×40)
\n Three (3) smaller rooms for commercial power service entry and main
\n distribution
\n (Size of these Telecom room; to be determined)
\n– 4 Electrical Rooms
\n One (1) main room for commercial power service entry and main distribution
\n Three (3) Smaller rooms for secondary, distribution of UPS and commercial
\npower
\n (Size of these Electrical rooms to be determined)
\n– UPS supply room
\n– 1 System Lab\/Repair and Testing center for client server systems (approx.
\n14×16)<\/p>\n
Electrical Requirements:
\n– Power Distribution throughout facility and to all offices
\n– Commercial Power (1600 amps\/208v\/3Phase)
\n– UPS power distribution (200 kva\/208v\/3Phase)
\nOne Generator external to facility (approx. 400 kva\/208v\/3phase)
\n Emergency power to UPS, HVAC, and commercial power distribution
\n– Soft fluorescent lighting (suspended-indirect) throughout the facility<\/p>\n
HVAC Requirements:
\n– Dedicated Units in all conference rooms, training rooms, UPS and
\ntelecommunications rooms
\n– All units must be centrally controlled via computer and have remote alarming
\ncapabilities<\/p>\n
FIRST ADDENDUM TO LEASE
\n ———————–<\/p>\n
THIS FIRST ADDENDUM TO LEASE (this “Addendum”) is made by and between SSP
\nASSOCIATES, INC. (“Landlord”), and CONCENTRIC NETWORK CORPORATION (“Tenant”), to
\nbe a part of that certain Lease of even date herewith between Landlord and
\nTenant (the “Lease”) concerning an approximately 40,000 square foot building and
\nrelated land and improvements located at 1405 Tittabawassee, Carrollton
\nTownship, Saginaw County, Michigan (the “Demised Premises”). Landlord and Tenant
\nagree that, notwithstanding anything to the contrary in the Lease, the Lease is
\nhereby modified and supplemented as set forth below.<\/p>\n
2.2 Term. The Lease shall commence on the date by which Landlord has
\n —-
\nsubstantially completed the Project in accordance with the Lease and delivered
\npossession of the Project to Tenant. If the Commencement Date has not occurred
\nfor any reason whatsoever on or before (i) July 1, 2000, then the date Tenant is
\notherwise obliged to commence payment of rent shall be delayed by one day for
\neach day that the Commencement Date is delayed beyond such date; or (ii) August
\n1, 2000, then, in addition to Tenant’s other rights or remedies, Tenant may
\nterminate the Lease by written notice to Landlord, whereupon any monies
\npreviously paid by Tenant shall be reimbursed to Tenant.<\/p>\n
3.1 Construction. Notwithstanding anything to the contrary herein,
\n ————
\neffective upon the Commencement Date, Landlord does hereby warrant that (a) the
\nconstruction of the Project was performed in accordance with all Laws and
\nRestrictions, in accordance with the Plans, and in a good and workman-like
\nmanner, (b) all material and equipment installed therein conformed to the Plans
\nand was new and otherwise of good quality, (c) the electrical, plumbing, and
\nmechanical systems servicing the Demised Premises are in working order and in
\ngood condition, and (d) the roof is in good condition and water tight. Prior to
\nthe Commencement Date, Landlord shall cause the roadway into the Demised
\nPremises to be named Concentric Boulevard, if the Township will allow such name
\nto be used.<\/p>\n
4.1 Possession. Landlord shall diligently complete the Project; provided,
\n ———-
\nhowever, Landlord shall not be held liable for any loss, damage or delay due to
\nfire, strike, civil disturbance, military riot, insurrection, casualty loss
\nincluding, but not limited to, tornado, high winds or extraordinary winter
\nconditions defined as seven (7) consecutive business days with the average
\ntemperature below 15(degrees) Fahrenheit nor seven (7) consecutive business days
\nwith average precipitation in excess of 1\/2 inch as measured at the Site.
\nNotwithstanding the forgoing, in the event Landlord is delayed in meeting any of
\nthe Milestone Dates (defined below) in constructing the Project by more than
\nsixty (60) days for any reason (other than Tenant’s delay), Tenant shall have
\nthe right to terminate this Lease by delivery of written notice thereof to
\nLandlord, whereupon any monies previously paid by Tenant to Landlord shall be
\nreimbursed to Tenant. As used herein, “Milestone Dates” shall mean the following
\ndates: (a) January 17, 2000 for completion of the foundation on the Project; and
\n(b) March 17, 2000 for the building to be “under-roof” and “roughed- in”.
\nPromptly upon substantial completion of the Project, Landlord shall deliver
\npossession of the Demised Premises to Tenant in good, broom clean condition,
\nwith all building systems in good working order and in compliance with all
\nordinances and laws.<\/p>\n
6 Utilities. Landlord represents that, on the Commencement Date, the
\n ———
\nDemised Premises shall be served by water, electricity, gas, telephone, sewer
\nand other utilities pursuant to Tenant’s specifications for the Demised
\nPremises. If the Demised Premises should not be reasonably suitable for Tenant’s
\nuse as a consequence of cessation of utilities or other services, interference
\nwith access to the Demised Premises, legal restrictions or the presence of any
\nHazardous Substance, which in any such case does not result from Tenant’s
\nnegligence or willful misconduct, and if any of the foregoing causes a
\nsubstantial interference with Tenant’s use of the Demised Premises and prevents
\nTenant from using the Demised Premises for its intended purpose for fourteen
\n(14) days, then Tenant shall be entitled to an equitable abatement of rent. If
\nsuch<\/p>\n
-1-<\/p>\n
interference persists for more than one hundred eighty (180) days, Tenant shall
\nhave the right to terminate the Lease.<\/p>\n
7.2 Taxes. “Taxes” shall not include and Tenant shall not be required to
\n —–
\npay any portion of any tax or assessment expense or any increase therein (a) in
\nexcess of the amount which would be payable if such tax or assessment expense
\nwere paid in installments over the longest permitted term or (b) resulting from
\na change of ownership or transfer of any or all of the Demised Premises.<\/p>\n
8.2 Care of Demised Premises. Tenant’s obligations with respect to the
\n ————————
\nsurrender of the Demised Premises shall be fulfilled if Tenant surrenders
\npossession of the Demised Premises in the condition existing at the Commencement
\nDate, ordinary wear and tear, condemnation, Hazardous Substances (other than
\nthose released or emitted by Tenant), and alterations or other interior
\nimprovements which Tenant is permitted to surrender at the termination of the
\nLease, excepted, and subject to Section 12 of the Lease.<\/p>\n
8.3 Hazardous Substances. To the best knowledge of Landlord, (a) no
\n ——————–
\nHazardous Substance is present on the Land or the soil, surface water or
\ngroundwater thereof, (b) no underground storage tanks are present on the Land,
\nand (c) no action, proceeding or claim is pending or threatened regarding the
\nLand concerning any Hazardous Substance or pursuant to any environmental law.
\nUnder no circumstance shall Tenant be liable for, and Landlord shall indemnify,
\ndefend, protect and hold harmless Tenant, its agents, contractors, stockholders,
\ndirectors, successors, representatives, and assigns from and against, all
\nlosses, costs, claims, liabilities and damages (including attorneys’ and
\nconsultants’ fees) of every type and nature, directly or indirectly arising out
\nof or in connection with any Hazardous Substance present at any time on or about
\nthe land, or the soil, air, improvements, groundwater or surface water thereof,
\nor the violation of any laws, orders or regulations, relating to any such
\nHazardous Substance, except to the extent that any of the foregoing actually
\nresults from the release or emission of Hazardous Substance by Tenant or its
\nagents or employees in violation of applicable environmental laws. This section
\nand Section 8.3 of the Lease constitute the entire agreement of Landlord and
\nTenant regarding Hazardous Substances. No other provision of the Lease shall be
\ndeemed to apply thereto.<\/p>\n
9.1 Indemnity. Landlord shall not be released or indemnified from, and
\n ———
\nshall indemnify, defend, protect and hold harmless Tenant from, all losses,
\ndamages, liabilities, claims, attorneys’ fees, costs and expenses arising from
\nthe negligence or willful misconduct of Landlord or its agents, contractors,
\nlicensees or invitees, Landlord’s violation of any law, order or regulation, or
\na breach of Landlord’s obligations or representations under the Lease.<\/p>\n
10.1 Maintenance and Repairs. Landlord shall perform and construct, and
\n ———————–
\nTenant shall have no responsibility to perform or construct, any repair,
\nmaintenance or improvements (a) necessitated by the acts or omissions of
\nLandlord or its agents, employees or contractors, (b) which are the subject of a
\nwarranty in Landlord’s favor, (c) to the structural portions of the Demised
\nPremises, which are defined as the roof, sidewalls and foundation, but excluding
\nany windows, doors, roof-top heating ventilating and air conditioning units, and
\nany required snow removal from the roof or (d) which would be treated as a
\ncapital expenditure under generally accepted accounting principles.
\nNotwithstanding the foregoing, Landlord shall amortize the cost of any “capital
\nexpenditure” over its useful life as reasonably determined by Landlord in
\naccordance with generally accepted accounting principles and Tenant shall pay
\nthe monthly amortized amount thereof together with interest at the rate of the
\nprime rate plus two percent (2%) per annum with each monthly installment of base
\nrent. Landlord shall, at its sole cost, maintain in good condition and free of
\nsnow the roadway (Concentric Boulevard) leading to the Demised Premises.<\/p>\n
10.2 Compliance with Laws. Tenant shall not be required to comply with or
\n ——————–
\ncause the Demised Premises to comply with any Laws or Restrictions requiring the
\nconstruction of alterations unless such compliance is necessitated solely due to
\nTenant’s particular use of the Demised Premises.<\/p>\n
-2-<\/p>\n
11.1 Alterations. Tenant may construct non-structural alterations,
\n ———–
\nadditions and improvements in the Demised Premises without Landlord’s prior
\napproval, if the cost of any such work does not exceed Twenty-Five Thousand
\nDollars ($25,000). Alterations and Tenant’s trade fixtures, furniture, equipment
\nand other personal property installed in the Demised Premises (“Tenant’s
\nProperty”) shall at all times be and remain Tenant’s property. Except for
\nAlterations which cannot be removed without structural injury to the Demised
\nPremises, at any time Tenant may remove Tenant’s Property from the Demised
\nPremises, provided that Tenant repairs all damage caused by such removal.
\nLandlord shall have no lien or other interest in any item of Tenant’s Property.
\nLandlord shall have the right to require Tenant to remove any alterations within
\nthe Demised Premises unless Landlord notifies Tenant at the time Landlord
\nconsents to such alteration that Landlord shall not require such alteration to
\nbe removed. Upon request by Tenant, Landlord shall inform Tenant at the time
\nLandlord consents to any alterations whether Tenant shall be required to remove
\nsuch alterations.<\/p>\n
12.2 Damage. If the Demised Premises are damaged by any peril and Landlord
\n ——
\ndoes not terminate the Lease, then Tenant shall have the option to terminate the
\nLease if the Demised Premises cannot be, or are not in fact, fully restored by
\nLandlord to their prior condition within one hundred eighty (180) days after the
\ndamage. Landlord shall not have the right to terminate the Lease if (a) the
\ndamage to the Demised Premises is (i) due to a risk required to be insured
\nagainst under Section 12.1 of the Lease (provided Tenant has maintained such
\ninsurance in place) or (ii) relatively minor (e.g., repair or restoration would
\ncost less than ten percent (10%) of the replacement cost of the Demised
\nPremises) or (b) Tenant pays any uninsured amounts.<\/p>\n
12.4 Waiver of Subrogation. Notwithstanding anything to the contrary
\n ———————
\nherein, the parties hereto release each other and their respective agents,
\nemployees, successors, assignees and subtenants from all liability for injury to
\nany person or damage to any property that is caused by or results from a risk
\nwhich is actually insured against without regard to the negligence or willful
\nmisconduct of the entity so released. All of Landlord’s and Tenant’s repair and
\nindemnity obligations under the Lease shall be subject to the waiver contained
\nin this paragraph.<\/p>\n
14 Access to Premises. Landlord and Landlord’s agents, except in the
\n ——————
\ncase of emergency, shall provide Tenant with one (1) business day notice prior
\nto entry of the Demised Premises. Any entry by Landlord and Landlord’s agents
\nshall not impair Tenant’s operations more than reasonably necessary, and shall
\ncomply with Tenant’s reasonable security measures.<\/p>\n
17 Right to Mortgage. Landlord represents that there is not currently a
\n —————–
\nmortgage or deed of trust encumbering the Demised Premises. Prior to Landlord’s
\nexecution of a mortgage or deed of trust as to the Demised Premises, Landlord
\nshall obtain from any lender of the Demised Premises a written agreement on
\ncommercially reasonable terms providing for recognition of Tenant’s interests
\nunder the Lease in the event of a foreclosure of the lender’s security interest.
\nFurther, as a condition to the subordination of Tenant’s leasehold interest,
\nLandlord shall obtain from any lenders a non-disturbance agreement recognizing
\nTenant’s leasehold interest and the ability of Tenant to continue its leasehold
\ninterest in the Demised Premises as long as Tenant is not in default hereunder,
\nafter expiration of applicable notice and cure periods.<\/p>\n
18 Assignment and Subletting. Tenant may, without Landlord’s prior
\n ————————-
\nwritten consent, sublet the Demised Premises or assign the Lease to (a) a
\npublicly-traded entity controlling, controlled by or under common control with
\nTenant, or (b) a successor publicly-traded entity related to Tenant by merger,
\nconsolidation, non-bankruptcy reorganization or government action. In addition
\nto the foregoing Tenant may, without Landlord’s prior written consent, sublet
\nthe Demised Premises or assign the Lease to (i) a non-public entity controlling,
\ncontrolled by or under common control with Tenant, (ii) a non-public successor
\nentity related to Tenant by merger, consolidation, nonbankruptcy reorganization,
\nor government action, or (iii) a purchaser of substantially all of Tenant’s
\nassets; provided, however, that in any such case, such entity<\/p>\n
-3-<\/p>\n
shall have a net worth equal to or greater than Tenant’s net worth immediately
\nprior to the proposed assignment or sublease. A sale or transfer of Tenant’s
\ncapital stock shall not be deemed an assignment, subletting or any other
\ntransfer of the Lease or the Demised Premises.<\/p>\n
21 Right to Cure Defaults. In the event Landlord fails to perform any of
\n ———————-
\nits obligations under the Lease and (except in case of a roof leak or similar
\nemergency posing an immediate threat to persons or property, in which case only
\nthree (3) days prior notice shall be required) fails to cure such default within
\nthirty (30) days after written notice from Tenant specifying the nature of such
\ndefault (where such default could reasonably be cured within said thirty (30)
\nday period), or fails to commence such cure within said thirty (30) day period
\nand thereafter continuously with due diligence prosecute such cure to completion
\n(where such default could not reasonably be cured within said thirty (30) day
\nperiod), then Tenant may, in addition to its other remedies, cure any default of
\nLandlord at Landlord’s cost and deduct the reasonable cost of such cure from
\nrent.<\/p>\n
28 Signs. Landlord hereby approves Tenant’s signage as described in
\n —–
\nExhibit _____ hereto. Landlord shall contract, at its sole cost, a monument sign
\nbase at the street entrance to the driveway of the Demised Premises as allowed
\nby Township ordinance, in accordance with plans and at a location reasonably
\nacceptable to Tenant. Tenant shall be entitled, at its sole cost, to install
\nthereon Tenant’s signage. Tenant shall also be entitled to install, at its sole
\ncost, signage on the building in compliance with all applicable laws. Tenant
\nshall further have the right, at its sole cost, to install on the Demised
\nPremises in front of the building flag poles and to fly Tenant’s flag thereon.<\/p>\n
30.16 Approvals. Whenever the Lease requires an approval, consent,
\n ———
\ndetermination, selection or judgment by either Landlord or Tenant, unless
\nanother standard is expressly set forth, such approval, consent, determination,
\nselection or judgment and any conditions imposed thereby shall be reasonable and
\nshall not be unreasonably withheld or delayed and, in exercising any right or
\nremedy hereunder, each party shall at all times act reasonably and in good
\nfaith.<\/p>\n
30.17 Reasonable Expenditures. Any expenditure by a party permitted or
\n ———————–
\nrequired under the Lease, for which such party demands reimbursement from the
\nother party, and while the Lease is not in default (after expiration of
\napplicable notice and cure periods), shall be limited to the fair market value
\nof the goods and services involved, shall be reasonably incurred, and shall be
\nsubstantiated by documentary evidence available for inspection and review by the
\nother party upon request.<\/p>\n
Effect of Addendum. All terms with initial capital letters used herein as
\n ——————
\ndefined terms shall have the meanings ascribed to them in the Lease unless
\nspecifically defined herein. In the event of any inconsistency between this
\nAddendum and the Lease, the terms of this Addendum shall prevail.<\/p>\n
In witness whereof, said parties hereunto subscribe their names.<\/p>\n
LANDLORD: TENANT:<\/p>\n
SSP ASSOCIATES, INC. CONCENTRIC NETWORK CORPORATION<\/p>\n
By \/s\/ [ILLEGIBLE]^^ By \/s\/ Henry R. Nothhaft
\n ———————- ————————-
\nName [ILLEGIBLE]^^ Henry R. Nothhaft
\n ——————
\nIts President Chairman, President & CEO
\n ——————<\/p>\n
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