1
EXHIBIT 10.64
LEASE
Between:
CHARRINGTON ESTATES, a Michigan Limited Partnership
and
JABIL CIRCUIT, INC.
2
INDEX
BASIC LEASE PROVISIONS 1
SECTION 1 - CONSTRUCTION AND IMPROVEMENTS 2
SECTION 2 - TERM OF LEASE 2
SECTION 3 - BASIC RENTAL 3
SECTION 4 - LATE CHARGE/INTEREST 3
SECTION 5 - TAXES 4
SECTION 6 - INSURANCE 5
SECTION 7 - ASSIGNMENT 7
SECTION 8 - RIGHT TO MAKE ALTERATIONS 7
SECTION 9 - EMINENT DOMAIN 9
SECTION 10 - OPERATION AND MAINTENANCE OF COMMON AREAS 9
- USE OF COMMON AREAS 9
- TENANT'S PRO RATA SHARE OF EXPENSES 10
SECTION 11 - LANDLORD'S OBLIGATIONS FOR MAINTENANCE 11
- TENANT'S OBLIGATIONS FOR MAINTENANCE 11
SECTION 12 - RIGHT TO ERECT SIGNS 12
SECTION 13 - LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT 12
SECTION 14 - DEFAULT 13
SECTION 15 - BANKRUPTCY OR INSOLVENCY 17
- TERMINATION 17
- TENANT'S OBLIGATION TO AVOID CREDITORS PROCEEDINGS 17
- RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE 18
SECTION 16 - NON-LIABILITY 18
SECTION 17 - DAMAGE AND DESTRUCTION 19
SECTION 18 - UTILITIES 20
SECTION 19 - USE 20
SECTION 20 - HOLDING OVER 20
SECTION 21 - LIEN ON PERSONAL PROPERTY 21
SECTION 22 - RIGHT OF ENTRY 21
SECTION 23 - ADDITIONAL RIGHTS OF LANDLORD 21
SECTION 24 - NOTICES 22
SECTION 25 - ADDITIONAL RULES 22
3
SECTION 26 - ADDITIONAL DOCUMENTS 23
SECTION 27 - WAIVER OF RIGHTS AND REDEMPTION 23
SECTION 28 - WAIVER 23
SECTION 29 - NO PARTNERSHIP 23
SECTION 30 - PARTIAL INVALIDITY AND SEVERABILITY 23
SECTION 31 - LIENS 24
SECTION 32 - ENTIRE AGREEMENT 24
SECTION 33 - COMPLIANCE WITH LAWS 24
SECTION 34 - CONSTRUCTION AND INTERPRETATION 25
SECTION 35 - RENT TO BE NET TO LANDLORD 25
SECTION 36 - DELAYS 25
SECTION 37 - LIABILITY OF LANDLORD 25
SECTION 38 - RECORDING 26
SECTION 39 - SUBORDINATION 26
- OFF SET STATEMENT 26
- ATTORNMENT 26
SECTION 40 - BINDING UPON SUCCESSORS 27
SECTION 41 - LANDLORD'S COVENANT 27
SECTION 42 - ACCORD AND SATISFACTION 27
SECTION 43 - SECURITY PROVISION 27
SECTION 44 - SURRENDER OF PREMISES ON TERMINATION 28
SECTION 45 - RIGHT TO CANCEL 28
SIGNATURES 29
ACKNOWLEDGEMENT OF LANDLORD 29
ACKNOWLEDGEMENT OF CORPORATE TENANT 29
EXHIBIT 1 - LEGAL DESCRIPTION - SITE AND SITE PLAN
EXHIBIT 2 - LEASED PREMISES PARCEL
EXHIBIT 3 - BUILDING SPECIFICATIONS
EXHIBIT 4 - GUARANTY
4
THIS LEASE made this 1st day of October, 1997, between CHARRINGTON
ESTATES, a Michigan Limited Partnership, whose address is 2301 West Big Beaver
Road, Suite 900, Troy, Michigan, 48084, (hereinafter referred to as "Landlord")
and JABIL CIRCUIT, INC., a Delaware Corporation, whose address is 10800
Roosevelt Blvd., St. Petersburg, Florida 33716 (hereinafter referred to as
"Tenant").
WITNESSETH
BASIC LEASE PROVISIONS.
A. Lease Term: 60 Months
B. Commencement Date: October 1, 1997
Rental Commencement Date: December 1, 1997
C. Expiration Date: November 30, 2002
D. Monthly Base Rent: Twenty-four Thousand Five Hundred Nine and 56/100 Dollars ($24,509.56)
E. Annual Base Rent: Two Hundred Ninety-four Thousand One Hundred Fourteen and 70/100 Dollars
($294,114.70)
F. Payee of Rent ("Payee"): Charrington Estates Limited Partnership
G. Address for Payment of Rent: 2301 West Big Beaver Road
Suite 900
Troy, Michigan 48084
H. Leased Premises consists of approximately 53,966 square feet
I. Address of Building Within Which the Leased Premises are Located ("Building"):
50 Corporate Drive
Auburn Hills, Michigan 48326
J. Security Deposit: Twenty-four Thousand Five Hundred Nine and 56/100 Dollars ($24,509.56)
K. Tenant's Share of Applicable Taxes: 40.2 percent
L. Tenant's Share of Maintenance: 40.2 percent
M. Broker: Signature Associates
N. Tenant Floor Plan Due: October 15, 1997
O. Exhibits to Lease:
(1) Legal Description - Site and Site Plan.
(2) Leased Premises Parcel.
(3) Building Specifications.
(4) Guaranty
Page 1
5
AGREEMENT OF LEASE
THE PREMISES
IN CONSIDERATION of the rents to be paid and the mutual covenants,
promises and agreements herein set forth, Landlord and Tenant agree as follows:
Landlord hereby leases unto Tenant certain premises within a building,
on land situated in Auburn Hills, Michigan, which premises are more
particularly described on Exhibit "1" and Exhibit "2" attached hereto and which
is incorporated herein hereby referred to as the "Leased Premises".
SECTION 1
CONSTRUCTION AND IMPROVEMENTS
1.01. Landlord agrees, prior to the commencement of the term of this
Lease, at Landlord's sole cost and expense, to complete certain Tenant office
improvements to the Premises in accordance with Plans, which have been approved
by both parties no later than October 15, 1997, and which are by this reference
made a part hereof per specifications described on Exhibit "3". No minor change
from such Plans which may be necessary during the preparation of the Premises
for Tenant shall affect, change or invalidate this Lease. Landlord shall
further provide a paved, striped parking lot and landscaping in accordance with
the plans approved from the City of Auburn Hills. It is understood and agreed
by Tenant that any minor changes from any plans or specifications during
construction of the building shall not relieve Tenant of its obligations under
this lease agreement. Landlord's construction work shall be pursuant to
applicable ordinances, regulations and laws. Exterior items such as
landscaping, sprinkling system, line painting, which as yet are uncompleted,
shall not be a basis to delay possession or the commencement date of this
Lease.
SECTION 2
TERM OF LEASE
2.01. The term of this Lease shall begin on October 1, 1997, ("the
Commencement Date") and shall end on October 31, 2002, unless sooner terminated
as herein set forth. The term as fixed by this Section 2 shall hereafter be
referred to as the "original term".
2.02. If Landlord shall be unable for any reason to give possession of
the Premises on the Commencement Date by reason of unavailability of materials,
labor disputes, Acts of God or other casualty, changes in the Plans requested
by Tenant, or any other causes whatsoever, Landlord shall not be subject to any
liability or liable for damages to Tenant for the failure to give possession on
such date but the rent to be paid herein shall not commence until the Premises
are ready for occupancy by Tenant and the rental therefor shall be postponed
and the term of the Lease extended. No such failure to give possession on the
date of the commencement of the term shall affect the validity of this Lease or
the obligations of Tenant hereunder. If permission is given to Tenant to enter
into possession of the Premises, or to occupy Premises other than the Leased
Premises, prior to the date specified as the commencement of the term of this
Lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease.
It is understood that if the building shall not be completed as set
forth herein at the time provided, as a result of any cause or reason, the
Landlord shall not be liable in damages to the Tenant therefor, but during the
period the building shall not be completed
Page 2
6
as hereinbefore provided, the rental therefor shall be postponed and the term
of the Lease extended. Notwithstanding the provisions of this Section 2.02
above, if Landlord fails to deliver possession of the Premises within one
hundred twenty (120) days of the Commencement Date specified in the Basic Lease
Provisions above, through no fault or delay on the part of Tenant, then Tenant
may cancel this Lease by written notice to Landlord within ten (10) days of the
expiration of such one hundred twenty (120) day period.
Upon Landlord's securing a temporary certificate of occupancy,
Landlord shall deliver possession of the building known as 50 Corporate Drive
to Tenant with free rent until rental commencement date of December 1, 1997.
Although Tenant shall have possession and use of the exterior facilities, i.e.,
the parking lot as of the commencement date, Tenant shall not enter, use, or
occupy the building known as 50 Corporate Drive until the City of Auburn Hills
has issued a Temporary Certificate of Occupancy.
2.03. On the Commencement Date or within a reasonable time thereafter
upon request by Landlord, Tenant shall execute a written instrument confirming
the Commencement Date and rental commencement date and the date on which the
term shall end.
SECTION 3
BASIC RENTAL
3.01. In consideration of the leasing aforesaid, Tenant hereby
covenants and agrees to pay Landlord, at such place as Landlord may hereafter
from time to time designate in writing, a minimum annual net rental for the
original term of the Lease equal in total amount Two Hundred Ninety-four
Thousand One Hundred Fourteen and 70/100 Dollars ($294,114.70) per year,
payable without deduction or set off in advance on the first day of each month
in equal installments of Twenty-four Thousand Five Hundred Nine and 56/100
Dollars ($24,509.56) each throughout the Lease Term. Receipt of Forty-nine
Thousand Nineteen and 12/100 Dollars ($49,019.12) representing the first
month's rent and security deposit is hereby acknowledged upon execution of this
Lease.
3.02. The basic rental shall be net to Landlord, so that this Lease
shall yield, net, to Landlord, not less than the basic net rental specified in
Section 3.01 hereof during the term of this Lease, and that all costs, expenses
and charges of every kind and nature relating to the Premises which may be
attributable to, or become due during the term of this Lease shall be paid by
Tenant, and that Landlord shall be identified and saved harmless by Tenant from
and against the same.
SECTION 4
LATE CHARGE/INTEREST
4.01. Any rent unpaid for more than seven (7) days after such rent is
due and any rent received and accepted more than seven (7) days after such rent
is due shall be subject to a late charge of five (5%) percent of such rent, and
such late charges shall be due from Tenant to Landlord as additional rent on or
before the next rental due date. Any default in the payment of rent shall not
be considered cured unless and until such late charges are paid by Tenant to
Landlord. On default of payment of such late charges, Landlord shall have the
same remedies as on default in payment of rent. Such late charges shall be in
addition to any other rights or remedies Landlord may have as provided by this
Lease or as allowed by law.
4.02. If any rent, any late charges, or any other sums payable by
Tenant to Landlord under this Lease are not paid within fifteen (15) days after
such rent, late charges or other sums are due, such rent, late charges or other
sums shall bear interest at the rate
Page 3
7
of five percentage points above the effective prime interest rate per annum
charged by Michigan National Bank to its best commercial customers. Such
interest shall be due from Tenant to Landlord as additional rent on or before
the next rental due date and shall accrue from the date that such rent, late
charges or other sums are payable under the terms of this Lease. Such interest
for rent, late charges and other sums shall continue to the date such rent,
late charges or other sums are paid by Tenant. Any default in the payment of
rent, late charges or other sums shall not be considered cured unless such
interest is paid by Tenant to Landlord. On default of payment of such interest,
Landlord shall have the same remedies as on default in payment of rent. Such
interest shall be in addition to any other rights or remedies Landlord may have
as provided by this Lease or as allowed by Law.
SECTION 5
TAXES
5.01. Tenant shall pay, as additional rent, to Landlord during the
term of this Lease its proportionate share of all taxes and assessments which
may be levied or assessed by any lawful authority, for each calendar year
during the term hereof, against the land, building, common area and
improvements comprising the Leased Premises including any special assessments.
(Such taxes and assessments being hereinafter called "Taxes".) Should the State
of Michigan or any political subdivision thereof or any governmental authority
having jurisdiction thereover, now or hereafter impose a tax and/or assessment
of any kind or nature upon, against or with respect to the rentals payable by
Tenant to Landlord or any income of Landlord derived from the Leased Premises
or with respect to Landlord's or the individuals or entities which form the
Landlord herein, ownership of the land, and building or buildings comprising
the Leased Premises, either by way of substitution for all or any part of the
taxes and assessments levied or assessed against such land and such building or
buildings, or in addition thereto, such tax and/or assessment shall be deemed
to constitute a tax and/or assessment against such land and such building or
buildings for the purpose of this paragraph and Tenant shall be obligated to
pay it as provided herein. In addition, should any governmental authority
having jurisdiction thereover impose a tax or surcharge of any kind or nature
upon, against or with respect to the parking areas or the number of parking
spaces comprising the Leased Premises, such tax or surcharge shall likewise be
deemed a constituted tax and/or assessment against such land and such building
or buildings for the purpose of this paragraph and Tenant shall be obligated to
pay such tax provided herein. Tenant's prorate share of taxes shall be as
listed in Basic Lease Provisions (K) on page 1.
Notwithstanding the foregoing, all assessments that may be levied or
assessed against the Leased Premises shall be paid by Landlord over the longest
permitted time period without penalty and only that portion required to be paid
within any one (1) year shall be included in determining Tenant's prorate share
of taxes and assessments as provided herein.
5.02. Tenant's proportionate share of all the aforegoing Taxes shall
be paid in monthly installments on or before the first day of each calendar
month, in advance, in an amount estimated by Landlord; provided that Landlord
shall have the right to initially determine monthly estimates and to revise the
estimate from time to time. If the Tenant underpays the Taxes under this
Section for any calendar or fiscal year during the term of this Lease, Tenant
shall pay to Landlord the difference between the amount paid in installments
and the amount due within ten (10) days. If, however, Tenant has overpaid the
Taxes, the difference between the amount paid in installments and the amount
actually due shall be credited against the next installment(s) due under this
Section. Tenant shall also pay its prorate share of the costs incurred by
Landlord in its effort to contest Taxes. A copy of the tax bill or assessment
bill submitted to Tenant shall at all times be sufficient evidence of the
amount of Taxes paid. Landlord's and Tenant's obligation under this Article
shall
Page 4
8
survive the expiration of this Lease. All Taxes shall be pro-rated and adjusted
both at the commencement and expiration of this Lease on a due date basis.
Tenant shall timely pay its share of such Taxes upon receipt of the tax bill
and Landlord's statement of the actual amount of Tenant's share for such
calendar year, within ten (10) days of receipt of such statement and before
such shall become! delinquent.
Landlord shall pay all such Taxes by the due date for the same. If
Tenant desires to contest any assessment or validity of any real property tax
and gives the Landlord written notice of this intent, then Tenant may contest
such assessment or tax without being in default hereunder. Tenant shall
indemnify Landlord and hold Landlord harmless from all costs, expenses and
damages arising out of any contest made by Tenant.
5.03. In the event Tenant shall, with the consent of Landlord as
elsewhere required by this Lease, construct improvements upon or alterations to
the Premises, or change its use of the Premises, in such a manner and to such
an extent as to disproportionately increase the burden of real estate taxes
thereby, Tenant agrees that its share of such taxes may be increased by
Landlord after reasonable notice to Tenant. Landlord's notice shall reasonably
inform Tenant as to the basis and method of calculation of such increase.
SECTION 6
INSURANCE
6.01. Tenant, at its own expense, shall maintain for the mutual
benefit of Landlord and Tenant, insurance of the following character:
A. General public liability insurance against claims for bodily
injury, death or property damage occurring on, at or about the
Leased Premises, such insurance to afford protection of
Landlord and such other parties as Landlord shall then
designate, of not less than Three Million Dollars
($3,000,000.00) with respect to bodily injury or death to any
one person, not less than Three Million Dollars
($3,000,000.00) with respect to any accident or occurrence and
not less than One Million Dollars ($1,000,000.00) with respect
to property damage. Policies For such insurance shall be for
the mutual benefit of Landlord, Tenant and such other parties
as Landlord may designate, all of whom shall be deemed
insureds.
B. Workmen's compensation covering all persons employed by Tenant
in connection with any work done on or about the demised
premises with respect to which claims for death or bodily
injury shall be asserted against Landlord, Tenant or the
demised premises.
C. Rent insurance in amounts equal to Tenant's total rental
obligation for twelve (12) full months under this Lease plus
the total of the estimated cost to Tenant of taxes,
assessments and insurance premiums for such period and common
area maintenance.
D. Fire, extended coverage, broad form, all risks and vandalism
coverage in form and substance satisfactory to Landlord to
fully protect the Landlord using not less than One Hundred
percent (100%) of the full replacement cost of the building
and its improvements without co-insurance and without
deduction for depreciation and having a deductible of not more
than One Thousand Dollars ($1,000 00). The amount of such
insurance shall be revised annually to reflect current
replacement costs. At the commencement of the lease term, it
is agreed that the replacement value shall be not less than
Two Million Dollars ($2,000,000.00).
Page 5
9
E. The Tenant shall also be Responsible for all glass damage on or
within the premises and shall obtain its own insurance for all
improvements, fixtures, goods, materials, and inventory.
F. Landlord along with any desired mortgagee, if required, are to
be named as additional insureds under all policies.
6.02. All insurance policies required under this Section shall be
issued by companies of recognized financial standing, rated at least A+ XII by
Best's Insurance Guide and duly licensed to do business under the laws of the
State of Michigan. Every policy which Tenant is obligated to carry under the
provisions of this Section shall contain an agreement by the insurer that it
will not cancel or materially modify such policy except alter twenty (20) days
prior written notice to Landlord. Tenant shall deliver to Landlord, prior to
delivery of its occupancy of the demised premises, the original or duplicate
policies or certificates of the insurers, evidencing all of the insurance which
is required to be maintained by Tenant hereunder, and Tenant shall within
thirty (30) days prior to the expiration of any such insurance deliver the
original or duplicate policies or other certificates of the insurers evidencing
the renewal of such insurance. If Tenant fails to effect, maintain or renew any
insurance provided for in this Section, or to pay the premium therefor, or to
deliver to Landlord any such policies or certificates then in any of said
events, Landlord, at its option, but without obligation so to do, may upon five
(5) days notice to Tenant, procure such insurance. Any sums expended by
Landlord to procure such insurance shall be additional rent hereunder and shall
be repaid by Tenant within five (5) days following the date on which
expenditures shall be made by Landlord. Failure to provide insurance
certificates as specified herein shall constitute waste and an act of default.
6.03. Such insurance may be so called "blanket" policy coverage,
provided, however, that such "blanket" policy coverage allocates a satisfactory
amount of insurance to the demised premises, that this amount is not subject to
deduction because of co-insurance, and that adjustment in payment of the
insurance so allocated will be in the amounts specified in the Lease. Further,
said blanket coverage shall not be subject to invalidation as to the demised
premises because of any act or omission by the Tenant.
6.04. Tenant covenants to indemnify, defend Landlord, and save it
harmless from and against any and all claims, actions, damages, liability and
expense, including attorney fees, in connection with loss of life, personal
injury and/or damage to property arising from or out of any occurrence in,
upon or at the Leased Premises or the occupancy or use by Tenant of the Leased
Premises or any part thereof, arising from or out of Tenant's failure to comply
with any provisions of this Lease or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, customers or
licensees. For the purpose hereof, the Leased Premises shall include service
areas adjoining the same, the parking areas, and the loading platform areas. In
case Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect, defend
and hold it harmless and shall pay all costs, expenses and reasonable attorney
fees that may be incurred in enforcing the Tenant's covenants and agreements in
this Lease.
6.05. That it is specifically understood and agreed that if the
Premises are destroyed in whole or in part by fire or other casualty, all
insurance proceeds shall be payable to and assigned to and be the sole and
separate property of the Landlord and that Tenant shall have no claim or rights
thereunder. However, such insurance coverage which is solely maintained
independently by the Tenant through policies for their contents and its
fixtures shall be payable to the Tenant or as is provided within said policies.
Page 6
10
SECTION 7
ASSIGNMENT
7.01. Without the previous written consent of Landlord, neither
Tenant, nor Tenant's legal representatives or successors in interest by
operation of law or otherwise, shall assign or mortgage this Lease, or sublet
the whole or any part of the demised premises or permit the demised premises or
any part thereof to be used or occupied by others. The sale of fifty percent
(50%) or more of the capital or voting stock of Tenant, (if Tenant is a
non-public corporation) or transfers aggregating fifty percent (50%) or more of
Tenant's partnership interest (if Tenant is a partnership) shall be deemed to
be assignment of this Lease. Any consent by Landlord to any act of assignment
or subletting shall be held to apply only to the specific transaction thereby
authorized. Such consent shall not be construed as a waiver of the duty of
Tenant, or the legal representatives or assigns of Tenant, to obtain from
Landlord consent to any other or subsequent assignment or subduing, or as
modifying or limiting the rights of Landlord under the foregoing covenant by
Tenant not to assign or sublet without such consent. Any violation of any
provision of this Lease, whether by act or omission, by any assignee, subtenant
or under-tenant or occupant, shall be deemed a violation of such provision by
Tenant, it being the intention and meaning of the parties hereto that Tenant
shall assume and be liable to Landlord for any and all acts and omissions of
any and all assignees, subtenants or undertenants or occupants. If this Lease
is assigned, Landlord may and is hereby empowered to collect rent from the
assignee; if the demised premises or any part thereof is underlet or occupied
by any person other than Tenant, Landlord, in the event of Tenant's default,
may, and is hereby empowered to, collect rent from the under-tenant or occupant,
in either of such events, Landlord may apply the net amount received by it to
the rent herein reserved, and no such collection shall be deemed a waiver of
the covenant herein against assignment and underletting, or the acceptance of
the assignee, under-tenant or occupant as tenant, or a release of Tenant from
the further performance of the covenants herein contained on the part of Tenant
or from fulfilling the terms and conditions of this Lease. In event that
through subletting or assignment such subtenant or assignee shall pay a greater
amount of rental than Tenant hereunder, or any additional consideration to
Tenant, then any such increased rental and consideration shall be paid solely
to Landlord as additional rent hereunder.
SECTION 8
RIGHT TO MAKE ALTERATIONS
8.01. Without the previous written consent of Landlord, Tenant shall
not make any physical alterations, changes, and/or improvements to the Leased
Premises, including without limiting the generality thereof, any structural
changes or modifications, or any change or modification to the plumbing,
heating, cooling, electrical, mechanical, and roof systems or such changes that
require a building or other permit from the municipality, or the installation
of heavy industrial equipment, and cranes. That with the prior written consent
of Landlord as hereinafter provided, the Tenant shall have the right at anytime
during the Lease Term, at its own cost send expense, to make such alterations,
changes, improvements and remodeling to the Leased Premises, as have been
approved or consented to in writing by Landlord prior to such construction,
alteration or improvement. Any such alteration shall be in conformity with the
Building and Safety Laws of the Municipality, County and State and the Tenant
shall have obtained and delivered to the Landlord all permits, consents and
other instruments which may be necessary or required by any public or
quasipublic authority permitting and authorizing such alterations, changes,
improvements and remodeling prior to undertaking any such change, modification
or alteration. It is agreed that Landlord reserves to itself, as a condition of
giving written consent, the right to require of Tenant, in form and substance
satisfactory to Landlord.
Page 7
11
A. Detailed drawings, plans and specifications of any alteration
or modification prior to construction, including samples of
materials to be used.
B. Appropriate certificates of and proof of insurance with
endorsements and in such amounts and providing such coverage
as is satisfactory to Landlord in its discretion.
C. Requirements for evidence of payment, including appropriate
unconditional waivers of lien and sworn statements, as shall
be satisfactory to Landlord.
Landlord shall advise Tenant in writing which alterations, changes or
modifications to the Premises must be removed by Tenant upon termination or
expiration of the Lease when giving written consent. Tenant shall not be
required nor shall Tenant upon termination of the Lease remove any improvements
made by Tenant unless such improvements are so designated to be left by
Landlord in writing. Tenant shall provide Landlord "as built" drawings showing
all alterations and changes and the location of all wiring, electrical,
plumbing, heating and cooling conduits and pipes, machinery and apparatus.
Tenant shall use only new first class materials in the completion of
Tenant's work. Any warranties provided to Tenant shall be delivered to the
Landlord by the Tenant and shall run directly to Landlord.
D. Tenant shall restore any damage caused by the removal of all
alterations and improvements or reimburse Landlord for the
cost or repairing such damage prior to termination or
expiration of its occupancy. Notwithstanding the terms of
this Article to the contrary, Tenant may install without
Landlord's consent, trade fixtures and movable apparatus which
are not attached or affixed to the building and not cause
damage to said building, the foundation or any structural
portion or component of the Leasehold premises.
E. Tenant shall be required to repair and restore the floor of
the Leased Premises, as well as all other areas affected by
the removal of any equipment installed by Tenant which has had
Landlord's prior written consent, at its sole cost and
expense, or reimburse Landlord for the cost of the repair and
/or restoration within five (5) business days of the date
Landlord presents its invoice for the cost of the repair
and/or restoration. In the event Landlord shall determine and
request that the repairs and/or restoration undertaken by
Tenant shall require further repair and/or restoration, Tenant
shall immediately satisfy the request of Landlord. All floors
and surfaces shall be filled in or utilize appropriate
materials, carpeting, etc., as are approved in writing by
Landlord prior to the commencement of such repair and/or
restoration. The determination of the area(s) of damage and
adequacy of the repair and/or restoration of the damage to the
Lease Premises, as the result of machinery and equipment or
use of such, in Tenant's business shall be at the sole
discretion of the Landlord.
All fixtures and equipment paid for by the Landlord and all fixtures
and equipment which may be paid for and placed on the Premises by the Tenant
from time to time but which are so incorporated and affixed to the building
that their removal would involve damage or structural change to the buildings,
shall be and remain the property of the Landlord.
All furnishings, equipment and fixtures other than those specified in
Section 8 which are paid for and placed on the Premises by Tenant from time to
time (other than those which are replacements for fixtures originally paid for
by Landlord) shall remain the
Page 8
12
property of the Tenant provided, however, that Tenant shall be responsible for
the repair of any damage resulting to the building or the Premises from the
removal thereof.
SECTION 9
EMINENT DOMAIN
9.01. If the whole or more than Fifty percent (50%) of the Premises
hereby leased shall be taken by any public authority under the power of eminent
domain, then the term of this Lease shall cease on the part so taken, from the
day of possession of that part shall be required for any public purpose and
rent shall be paid up to that day and from that day both Landlord and Tenant
shall each have the right either to cancel this Lease and declare the same null
and void or Tenant may continue in the possession of the remainder of the Lease
Term under the terms and conditions of the Lease herein provided, except that
the rent shall be reduced in proportion to the amount of the Premises taken.
All damages awarded for such taking shall belong to and be the property of the
Landlord whether such damages shall be awarded as compensation for diminution
in value to the Leasehold or the fee of the Premises herein leased; provided,
however, that the Landlord shall not be entitled to any portion of the award
made the Tenant for loss of its business, or for Tenant's cost of vacating that
part or all the Premises so taken.
In the event any part of the Leased Premises shall be taken under the
power of eminent domain by any legally constituted authority, and there remains
a sufficient amount of space to permit Tenant to carry on its business in a
manner comparable to which it has become accustomed, then this Lease shall
continue, but the obligation to pay rent on the part of the Tenant shall be
reduced in an amount proportionate to the area and relative value of the entire
premises taken by such condemnation. In the event all of the Leased Premises
shall be taken, or so much of the premises and common areas taken that it is
not feasible to continue a satisfactory operation of the business of the
Tenant, then Tenant may terminate this Lease. Such termination shall be without
prejudice to the rights of either the Landlord or the Tenant to recover
compensation from the condemning authority for any loss or damage caused by
such condemnation. Neither the Landlord nor Tenant shall have any right in or
to any award made to the other by the condemning authority.
SECTION 10
OPERATION AND MAINTENANCE OF COMMON AREAS
10.01. Landlord agrees to cause to be operated and maintained during
the term of this Lease certain common areas servicing the building and other
buildings of Landlord. The manner in which such areas and facilities shall be
operated and maintained, and the expenditures therefor, shall be at the sole
discretion of Landlord and the use of such areas and facilities shall be
subject to such reasonable regulations as Landlord shall make from time to
time.
USE OF COMMON AREAS
10.02. The term "common area", as used in this Lease, shall mean (i)
the following: parking areas, roadways, driveways and retention ponds (if
applicable), and other areas, amenities, facilities and improvements provided
by Landlord, (ii) those areas adjacent to the building which from time to time
may be provided by the owners of such areas for the convenience and use of
Landlord, the Tenants of the building and their respective agents, employees,
customers, invitees and all other licensees and others entitled to the use
thereof and (iii) any other facilities or areas, outside the building, as may
be designated by Landlord from time to time if applicable. The use and
occupancy by Tenant of the Leased Premises shall include the use of the common
areas in common with Landlord and with all others for whose convenience and use
the common areas have been or may hereafter be
Page 9
13
provided by Landlord, subject, however, to rules and regulations for the use
thereof as prescribed from to time by or the owner of such common area.
TENANT'S PRO RATA SHARE OF EXPENSES.
10.03. (a) Tenant agrees to pay to Landlord in the manner hereinafter
provided, but not more often than once each calendar month, Tenant's
proportionate share of: (1) all cost and expenses of every kind and nature paid
or incurred by Landlord in operating, equipping, lighting, providing sanitation
and sewer and other services, repairing, replacing and maintaining the (i)
common areas, and (ii) all other areas, facilities and buildings, retention
ponds (if applicable), and any and all facilities and improvements, which are
used in connection with maintenance and/or operation of the building of which
the Leased Premises are a part; such cost and expenses shall include, but shall
not be limited to, the full cost of: illumination and maintenance of signs,
refuse disposal, water, gas, sewage, electricity and other utilities (without
limitation), including any and all usage, service, hook up, connection,
availability and/or standby fees or charges pertaining to same; cleaning,
lighting, striping and landscaping; curbs, gutters, sidewalks, drainage and
irrigation ditches, conduits, pipes and canals located on or adjacent to the
building; premiums for liability, casualty, and property insurance; personal
property taxes; licensing fees and taxes; real estate taxes and assessments and
substitutions and replacements thereof levied or assessed by municipal, county,
state, federal or other taxing or assessing authority upon, against or with
respect to the common areas and/or the land thereunder and the land on which
the building is located, and all property; cost, lease payment or depreciation
of any equipment used in the operation or maintenance of the common areas; (2)
an amount equal to ten percent (10%) of the total of all of the foregoing costs
and expenses, to compensate Landlord for administration and management
services. The proportionate share to be paid by Tenant shall be that portion of
the foregoing costs and expenses which the number of square feet of floor area
in the Leased Premises bears to the total number of square feet of leased floor
area of the building of which the Leased Premises are a part as determined
solely by Landlord.
(b) Tenant's proportionate share of such costs and expenses for each
lease year shall be paid in monthly installments on the first day of each
calendar month, in advance, in an amount estimated by Landlord from time to
time. Subsequent to the end of each calendar or fiscal lease year (at
Landlord's option), Landlord shall furnish Tenant with a statement of the
actual amount of Tenant's proportionate share of such cost and expenses for
such period. If the total amount paid by Tenant under this Section for any such
year shall be less than the actual amount due from Tenant for such year as
shown on such statement, Tenant shall pay to Landlord the difference between
the amount paid by Tenant and the actual amount due, such deficiency to be paid
within ten (10) days after the furnishing of each such statement, and if the
total amount paid by Tenant hereunder for any such year shall exceed such
actual amount due from Tenant for such year, such excess shall be credited
against the next installment due from Tenant to Landlord under this Section.
Landlord may estimate the annual budget and charge the estimated share to the
Tenant on a monthly basis subject to revision by Landlord of the budget from
time to time and final annual adjustment based upon actual expenses. Neither
the provisions of this Section, nor any of the other requirements or
restrictions imposed upon Tenant under this Lease, shall excuse Tenant from its
obligation to comply with laws and ordinances and other governmental
requirements. Tenant shall be entitled to inspect the invoices and statements
relating to Landlord's cost of operating and maintaining the common areas, at
Landlord's office, upon reasonable notice and during Landlord's normal business
hours. Tenant may also request that Landlord furnish copies of invoices and
statements relating to Landlords costs of operating and maintaining the common
areas.
Page 10
14
SECTION 11
LANDLORD'S OBLIGATIONS FOR MAINTENANCE.
11.01. Landlord shall not be called upon to make any improvements or
repairs of any kind upon the Leased Premises and appurtenances, except as may
be required under Section 10 hereof, and nothing contained in this Section
shall limit Landlord's right to reimbursement from Tenant for maintenance,
repair costs and replacement costs conferred elsewhere in this Lease.
TENANT'S OBLIGATIONS FOR MAINTENANCE
11.02. (a) Except as provided in Section 11.01 of this Lease, Tenant,
at Tenant's expense, shall keep and maintain in first class appearance, in a
condition at least equal to that which existed when Tenant initially occupied
the Leased Premises, and in good order, condition and repair as reasonably
determined by Landlord (including replacement of parts and equipment, if
necessary) the Leased Premises and every part thereof and any and all
appurtenances thereto wherever located, including, but without limitation, the
roof, the exterior walls, the exterior and interior portion of all doors, door
frames, door checks, other entrances, windows, window frames, plate glass, all
plumbing and sewage facilities within the Leased Premises, including free the
main sewer line, fixtures, ventilation, heating and air conditioning and
electrical systems, sprinkler systems, walls, floors and ceilings, and all
other repairs, replacements, renewals and restorations, interior and exterior,
ordinary and extraordinary, foreseen and unforeseen.
(b) Tenant shall keep and maintain the Leased Premises in a clean,
sanitary and safe condition in accordance with the laws of the State and in
accordance with all directions, rules and regulations of the health officer,
fire marshal, building inspector, or other proper officials of the governmental
agencies having jurisdiction, and Tenant shall comply with all requirements of
law, ordinances and otherwise, affecting the Leased Premises, all at the sole
cost and expense of Tenant. At the time of the expiration or sooner termination
of the tenancy created herein, Tenant shall surrender the Leased Premises in
good order, condition and repair, subject to normal wear and tear.
(c) Tenant shall keep the Leased Premises and all other parts of the
building free from any and all liens arising out of any work performed,
materials furnished or obligations incurred by or for Tenant, agrees to bond
against or discharge any such lien (including, without limitation, any
construction, mechanic's or materialman's lien) within ten (10) days after
written request therefor by Landlord. Tenant shall give Landlord fifteen
(15) days' notice prior to commencing or causing to be commenced any work on
the Leased Premises (whether prior or subsequent to the commencement of the
lease term), so that Landlord shall have reasonable opportunity to file and
post notices of non-responsibility for Tenant's work. Tenant shall reimburse
Landlord for any and all costs and expenses which may be incurred by Landlord
by reason of the filing of any such liens and/or the removal of same, such
reimbursement to be made within ten (10) days after written notice from
Landlord to Tenant setting forth the amount of such costs and expenses.
(d) Tenant, at its own expense, shall install and maintain fire
extinguishers and other fire protection devices as may be required from time to
time by any agency having further jurisdiction thereof and/or by the insurance
underwriters insuring the building in which the Leased Premises are located.
(e) Tenant expressly waives all rights to make repairs at the expense
of Landlord as provided for in any statute or law in effect during the term of
this Lease.
(f) In the event, after written notice to Tenant, that Tenant fails,
refuses or neglects to commence and complete repairs promptly and adequately,
to remove any lien, to pay
Page 11
15
any cost or expense, to reimburse Landlord, or otherwise to perform any act or
fulfill any obligation required of Tenant pursuant to this Section, Landlord
may, but shall not be required to, make or complete any such remove such lien,
pay such cost or perform such act or the like without prior notice to, but at
the sole cost and expense of Tenant, and Tenant shall reimburse Landlord for
all costs and expenses of Landlord thereby incurred within ten (10) days after
receipt by Tenant from Landlord of a statement setting forth the amount of such
costs and expenses. The failure by Tenant so to make repairs, to remove any
lien, to pay any such cost or expense, or to reimburse Landlord (in the case of
reimbursement, within such ten day period) shall constitute a default by Tenant
under this Lease and shall carry with it the same consequences as failure to
pay any installment of rental. Landlord's rights and remedies pursuant to this
Subsection shall be in addition to any and all other rights and remedies
provided under this Lease or at law.
(g) The Tenant shall not perform any acts or carry on any practices
which may injure the building and shall keep Premises under control (including
all drives and adjoining drives, streets, alleys or yards, and parking lots)
clean and free from rubbish, and dirt, snow and ice, litter and refuse at all
times. The Tenant shall not obstruct or permit the obstruction of the street,
drives, sidewalk or parking lot(s) and shall keep the sidewalk and curb
adjoining the demised premises and parking areas clean and free of snow and
ice, litter and refuse. Upon expiration and/or termination of this Lease,
Tenant shall be required to provide the Landlord certification from licensed
contractors evidencing that the plumbing, heating, cooling, electrical,
mechanical and roof systems are in good operating condition and not in need of
any repair or replacement.
(h) Notwithstanding the provisions of Section 11.02, the Tenant's
obligation to repair shall be subject to (i) the "pass through" of
manufacturer's and contractor's warranty referred to in this Lease, (ii)
ordinary wear and tear, and (iii) items covered by property insurance payable
to Landlord. Section 11.02 (d) shall not be construed as requiring Tenant to
make major expenditures for sprinkler system improvements unless such are due
to the specific operations or use of the Premises by Tenant or any permitted
licensee or subtenant of Tenant. Tenant shall not be required to place any
alarm system in the Leased Premises unless such is required by the specific
operations or use by Tenant.
SECTION 12
RIGHT TO ERECT SIGNS
12.01. Tenant is hereby granted the right to erect such signs on the
exterior of the building which shall be constructed in conformity with all
requirements of local laws and all recorded building and use restrictions, and
further subject to the prior written approval of Landlord. Tenant agrees to
hold Landlord harmless from any liability arising out of or in connection with
the erection or maintenance of such signs.
Landlord covenants that it will not allow any other tenant to erect
signs on the face of the building in which the demised premises are located if
Tenant is leasing the entire Leasehold Premises.
SECTION 13
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
13.01. Landlord may, without notice, if in the opinion of Landlord an
emergency exists, perform any covenant or condition of this Lease for the
Tenant's account and at the Tenant's expense, in the event that the Tenant
shall default in the performance of any such covenant or condition. Landlord
shall be reimbursed by Tenant for any expense incurred by Landlord, including
reasonable counsel fees, in instituting, prosecuting or defending any action or
proceeding instituted because of any default of Tenant. If Tenant becomes
Page 12
16
obligated to reimburse or otherwise pay Landlord, terms of the Lease, any sum
in addition to the rent as set forth in Section 3 of this Lease, the said sum
shall be considered additional rent and may, at Landlord's option, be added to
any subsequent installment of said rent due and payable under this Lease, in
which case, Landlord shall have all the remedies for default in the payment
thereof provided under the terms of this Lease. The provisions of this Section
13 shall survive the termination and/or expiration of this Lease.
SECTION 14
DEFAULT
14.01. If any one or more of the following events (here sometimes
called "events of default") shall happen:
A. If default shall be made in the due and punctual payment of
any rent, or in the payment of any other sums of money
required to be paid by Tenant under this Lease or any part
thereof, when and as the same shall become due and payable; or
B. In the event Tenant shall be in default in the performance of
any other covenants, terms, conditions, provisions, rules, and
regulations of this Lease excepting those items listed in the
above section (A) and if such default is not cured within
seven (7) days, after written notice thereof given by the
Landlord; or
C. If Tenant shall file a voluntary petition in bankruptcy or
shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future federal,
state or other bankruptcy or insolvency statute of law, or
shall seek or consent to or acquiesce in the appointment of
any bankruptcy or insolvency trustee, receiver or liquidator
of Tenant or of all of any substantial part of its properties
or of the demised premises; or
D. If within fifteen (15) days after the commencement of any
proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future
federal bankruptcy or insolvency statute or law, such
proceeding shall not have been dismissed or if, within thirty
(30) days after the appointment, without the consent or
acquiescence of Tenant, of any trustee, receiver or liquidator
of Tenant or of all or substantially all of its properties or
of the demised premises, such appointment shall not have been
vacated or stayed on appeal or otherwise, or if, after the
expiration of any such stay, such appointment shall not have
been vacated; or
E. If Tenant shall be in default by any reason set forth in
Section 13, then and in any such event Landlord at any time
thereafter may, at its option, give written notice to Tenant
specifying such event of default or events of default and
stating that this Lease and the term hereby demised shall
expire and terminate on the date specified in such notice,
which shall be at least seven (7) days after the giving of
such notice, and upon the date specified in such notice this
Lease and the term hereby demised and all rights of Tenant
under this Lease, including any right to possession or renewal
privileges whether or not exercised, shall expire and
terminate, and Tenant shall remain liable as hereinafter
provided. Notwithstanding the aforegoing, in the event of
Page 13
17
non-payment of rent or other charges under this Lease which is
not cured within seven (7) days of notice, Landlord may
institute summary proceedings; may recover possession of the
premises and/or may terminate the Lease and term and/or may
exercise any and all other rights and remedies it may have at
law or at equity or under this Lease, none of which remedies
shall relieve the Tenant of its obligations under this Lease
as hereinafter set forth. There shall be a late charge of six
(6%) percent of any payment received after the seventh (7th)
day of any month from which rent is due.
14.02. Any such proceeding or action involving bankruptcy, insolvency,
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal
bankruptcy act or any other present or future applicable federal, state or
other statute or law, above set forth paragraphs 14.01 (C) or 14.01 (D) hereof,
shall be grounds for the termination of this Lease pursuant to the terms of
this Article, only when such proceeding, action or remedy shall be taken or
brought by or against the then holder of the leasehold estate under this Lease.
14.03. Upon any such expiration or termination of this Lease, Tenant
shall quit and peacefully surrender the demised premises to Landlord, and
Landlord, upon or at any such expiration or termination, may without further
notice, enter upon and re-enter the demised premises and possess and repossess
itself thereof, by force, summary proceedings, ejectment or otherwise, and may
dispossess Tenant and remove Tenant and all other persons and property from the
demised premises and may have, hold and enjoy the demised premises and the
right to receive all rental income of and from the same.
14.04. If this Lease shall terminate pursuant to this Section, or by
summary proceedings or otherwise, or if the demised premises or any part
thereof shall be abandoned by Tenant, or shall become vacant during the term
hereof, Landlord may in its own name, but as agent for Tenant if this Lease not
be terminated, or if this Lease be terminated, in its own behalf, relet the
demised premises or any part thereof, or said Premises, with additional
premises for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the term of this Lease)
and on such conditions (which may include concessions or free rent and
alterations of the demised premises) as Landlord, in its uncontrolled
discretion, may determine and may collect and receive the rents therefor.
Landlord shall in no way be responsible or liable for any failure to relet the
demised premises or any part thereof, or of any failure to collect any rent due
upon such reletting.
14.05. No such expiration or termination of this Lease, or summary
proceedings, abandonment or vacancy, shall relieve Tenant of its liability and
obligation under this Lease, whether or not the demised premises shall be
relet. In any such event Tenant shall pay Landlord the rent and all other
charges required to be paid by Tenant up to the time of such event. Thereafter:
1. (a) Tenant, until the end of the term of this Lease, or what would
have been such term in the absence of any such event, shall be
liable to Landlord as damages for Tenant's default, the
equivalent of the amount of the rent and other charges which
would be payable under this Lease by Tenant if this Lease were
still in effect:, less any net proceeds of any reletting
effect pursuant to the provisions above, after deducting all
Landlord's expenses in connection with such reletting,
including, without limitation, all repossession costs,
brokerage and management commission, operating expenses, legal
expenses, reasonable attorneys' fees, alteration costs, and
expenses of preparation for such relettings.
Page 14
18
(b) Tenant shall pay such current damages (herein called
"deficiency") to Landlord monthly on the days on which the net
rent would have been payable under this Lease if this Lease
were still in effect, and Landlord shall be entitled to recover
from Tenant each monthly deficiency as the same shall arise.
(c) At any time after the expiration or termination of this Lease
pursuant to this Article, in lieu of collecting any further
monthly deficiencies as aforesaid, Landlord shall be entitled
to recover from Tenant, and Tenant shall pay to Landlord, on
demand, as damages, in addition to the damages provided for in
Section 14.08 herein, damages computed in the manner set forth
in the Section minus any such monthly deficiencies previously
recovered from Tenant.
2.(a) In case of any breach of this Lease mentioned in Sections
14.07 and 14.08, Landlord shall immediately and ipso facto,
without notice or other action by Landlord, become entitled to
recover from Tenant, as damages for such breach, in addition
to any damages becoming due under Sections 14.07 and 14.08
herein, an amount equal to the difference between the rent and
other charges reserved in this Lease from the date of such
breach to the date of the expiration of the original term
demised and the then fair and reasonable rental value of the
Premises for the same period. Said damages shall become due
and payable to Landlord immediately upon such breach of this
Lease and without regard to whether this Lease be terminated
or not, and if this Lease be terminated, without regard to the
manner in which it is terminated.
(b) If and so long as the term of this Lease shall continue, the
rent reserved herein for the unexpired term of the Lease after
a breach mentioned in Sections 14.07 and 14.08, shall be
reduced by the amount of such liquidated damages as may be
paid to Landlord, such reduction being applied proportionately
to each installment of rent thereafter becoming due. During
the continuance of the Lease after such a breach and until
such damages are paid to Landlord, the whole amount of each
installment of rent herein reserved shall be due and payable
at the time herein specified, and if, by reason of the
subsequent payment of liquidated damages, and the resulting
reduction in rental, Landlord shall have received a sum in
excess of all installments, as so reduced, becoming due after
the breach and before the collection of such damages, such
excess shall be refunded upon the receipt of such liquidated
damages.
14.06. If the demised premises or any part thereof be relet by
Landlord for the unexpired term of this Lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall prima facie be
the fair and reasonable rental value for the part or the whole of the Premises
so relet during the term of the reletting. Nothing herein contained shall limit
or prejudice the rights of Landlord to obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, the governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
14.07. If this Lease be terminated by summary proceedings or
otherwise, or if the Premises are abandoned or become vacant, and whether or not
the Premises be relet, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord, in addition to any damages becoming due under this
Article, the following: an amount equal to all expenses, if any, including
reasonable counsel fees, incurred by I Landlord in
Page 15
19
recovering possession of the demised premises and all reasonable costs and
charges for the care of said Premises, while vacant, which damages shall be due
and payable by Tenant to Landlord at such time as such expenses are incurred by
Landlord.
14.08. If this Lease is terminated in any manner whatsoever, or if
there is any breach of this Lease specified in Sections 14.07 and 14.08, then
and in either of such events, Tenant covenants and agrees any other covenant in
this Lease notwithstanding;
(a) That the Premises shall be in the same condition as that in
which Tenant has agreed to surrender them to Landlord at the
expiration of the term hereof;
(b) That Tenant, on or before the occurrence of any such event
shall perform any covenant contained in this Lease for making
of any improvement, alteration or betterment to the Premises,
or for restoring or rebuilding any part thereof; and
(c) That, for the breach of any covenant above stated in this
Section 14.08, Landlord shall be entitled to recover and Tenant
shall pay, ipso facto, without notice or other action by
Landlord the then cost of performing such covenant, plus
interest at the highest legal rate permissible for the period
between the occurrence of any such event and the time when any
such work or act, the cost of which is computed, or should
have been performed under the other provisions of this Lease
had such event not occurred.
14.09. Tenant hereby expressly waives trial by jury, any appeal, the
right to abated rent and to join any other proceeding whether in law or equity,
as permitted by law, the service of any notice of intention to re-enter provided
for in any statute, and except as is herein otherwise provided Tenant, for and
on behalf of itself and all persons claiming through or under Tenant (including
any leasehold mortgagee or other creditor), also waives any and all right of
redemption or re-entry or re-possession in case Tenant shall be dispossessed by
a judgment or by warrant of any court or judge or in case of re-entry or
re-possession by Landlord or in case of any expiration or termination of this
Lease. The terms "enter", "re-enter", "entry" or "re-entry" as used in this
Lease are not restricted to their technical legal meanings.
14.10. No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant, or condition hereof or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach or of such agreement, term, covenant or condition hereof to be
performed or complied with by Tenant, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by Landlord. No
waiver of any breach shall affect or alter this Lease, but each and every
agreement, term, covenant and condition hereof shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
14.11. In the event of any breach or threatened breach by Tenant of any of
the agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though re-entry, summary proceedings, and other remedies were
not provided for in this Lease.
14.12. Each right and remedy provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord or Tenant
of any one or more of the rights or remedies provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the party in
Page 16
20
question of any or all other rights or remedies provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise. No
suit or recovery of any portion due Landlord hereunder shall be any defense to
any subsequent action brought for any amount not theretofore reduced to Judgment
in favor of Landlord.
14.13. Notwithstanding Section 14.01(B), if Tenant has in good faith
expeditiously undertaken to cure such default under Section 14.01(B), and due to
cause beyond its control is not capable of curing such default within such
fifteen (15) days, then Tenant shall be allowed additional time commensurate
with that required due to the condition beyond Tenant's control, in which to
cure such default. No additional time shall be granted in which to cure a
default for failure to maintain insurance coverage or if Tenant is otherwise in
default. Late charges shall be payable and be in the amount as provided in
Section 4.01 and 14.01(E) from date of any default notwithstanding that Tenant
has been given additional time in which to cure a default under Section
14.01(B).
SECTION 15
BANKRUPTCY OR INSOLVENCY
15.01. TENANT'S INTEREST NOT TRANSFERABLE. Neither Tenant's interest in
this Lease, nor any estate hereby created in Tenant nor any interest herein or
therein, shall pass to any trustee or receiver or assignee for the benefit of
creditors or otherwise by operation of law except as may specifically be
provided pursuant to the Bankruptcy Code.
TERMINATION
15.02. In the event the interest or estate created in Tenant hereby shall
be taken in execution or by other process of law, or if Tenant's Guarantor, if
any, or his executors, personal representatives, administrators or assigns, if
any, shall be adjudicated insolvent or bankrupt pursuant to the provisions of
any State Act or the Bankruptcy Code or if Tenant is adjudicated insolvent by a
Court of competent jurisdiction other than the United States Bankruptcy Court,
or if a receiver or trustee of the property of Tenant or Tenant's Guarantor, if
any, shall be appointed by reason of the insolvency or inability of Tenant or
Tenant's Guarantor, if any, to pay its debts, or if any assignment shall be made
of the property of Tenant or Tenant's Guarantor, if any, for the benefit of
creditors, then and in any such events, this Lease and all rights of Tenant
hereunder shall automatically cease and terminate with the same force and effect
as though the date of such event were the date originally set forth herein and
fixed for expiration of the term, and Tenant shall vacate and surrender the
Leased Premises but shall remain liable as herein provided.
TENANT'S OBLIGATION TO AVOID CREDITORS' PROCEEDINGS
15.03. Tenant or Tenant's Guarantor shall not cause or give cause for the
appointment to a trustee or receiver of the assets of Tenant or Tenant's
Guarantor, if any, and shall not make any assignment for the benefit of
creditors, or become or be adjudicated insolvent. The allowance of any petition
under any insolvency law except under the Bankruptcy Code or the appointment of
a trustee or receiver of Tenant or Tenant's Guarantor, if any, or of the assets
of either of them, shall be conclusive evidence that Tenant caused, or gave
cause therefor, unless such allowance of the petition, or the appointment of a
trustee or receiver, is vacated within thirty (30) days after such allowance or
appointment. Any act described in this paragraph shall be deemed a material
breach of Tenant's obligations hereunder, and this lease shall thereupon
automatically terminate. Landlord does, in addition, reserve any and all other
remedies provided in this Lease or in law.
Page 17
21
RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE.
15.04. (a) Upon the filing of a petition by or against Tenant under
the Bankruptcy Code, Tenant, as debtor and as debtor in
possession, and any trustee who may be appointed agree as
follows: (1) to perform each and every obligation of Tenant
under this Lease including, but not limited to, the manner
of "operations" as provided in this Lease until such time
as this Lease is either rejected or assumed by order of the
United States Bankruptcy Court; and (2) to pay monthly in
advance on the first day of each month as reasonable
compensation for use and occupancy of the Leased Premises
in an amount equal to all rent and other charges otherwise
due pursuant to this Lease; and (3) to reject or assume
this Lease within sixty (60) days of the filing of such
petition under Chapter 7 of the Bankruptcy Code or within
one hundred twenty (120) days (or such shorter term as
Landlord, in its sole discretion, may deem reasonable so
long as notice of such period is given) of the filing of a
petition under any other Chapter; and (4) to give Landlord
at least forty-five (45) days prior written notice of any
proceeding relating to any assumption of this Lease; and
(5) to give at least thirty (30) days prior written notice
of any abandonment of the Leased Premises; any such
abandonment to be deemed a rejection of this Lease; and (6)
to do all other things of benefit to Landlord otherwise
required under the Bankruptcy Code; and (7) to be deemed to
have rejected this Lease in the event of the failure to
comply with any of the above; and (8) to have consented to
the entry of an order by an appropriate United States
Bankruptcy Court providing all of the above, waiving notice
and hearing of the entry of the same.
(b) No default of this Lease by Tenant, either prior to or
subsequent to the filing of such a petition, shall be deemed
to have been waived unless expressly done so in writing by
Landlord.
(c) Included within and in addition to any other conditions or
obligations imposed upon Tenant or its successor in the
event of assumption and/or assignment are the following: (1)
the cure of any monetary defaults and the reimbursement of
pecuniary loss within not more than thirty (30) days of
assumption and/or assignment; and (2) the deposit of an
additional sum equal to three (3) months rent to be held
pursuant to the terms of this Lease; and (3) the use of the
Leased Premises as set forth in this Lease; (4) the
reorganized debtor or assignee of such debtor in possession
or if Tenant's trustee demonstrates in writing that it has
sufficient background including, but not limited to,
substantial experience and financial ability to operate out
of the Leased Premises in the manner contemplated in this
Lease and meet all other reasonable criteria of Landlord as
did Tenant upon execution of this Lease; and (5) the prior
written consent of any mortgagee to which this Lease has
been assigned to collateral security.
SECTION 16
NON-LIABILITY
16.01. As a consideration for making of this Lease the Landlord shall not
be liable for any failure of water supply or electric current, nor for injury or
damage which may be sustained to person or property by the Tenant, or any other
person, caused by or resulting from steam, electricity, gas, water, rain, ice or
snow which may leak or flow from or into any part of said building or from the
breakage, leakage, obstruction or other defect of the roof, outer walls, parking
lots, heating and cooling systems, pipes, wiring, appliances, plumbing
Page 18
22
or lighting fixtures of the same, the condition of said Premises or any part
thereof, or through the elevator, if any, or from the street or subsurface, or
from any other source or cause whatsoever, whether the same damage or injury
shall be caused by or be due to the negligence of the Landlord, the Landlord's
agent, servant, employee, or not, nor for interference with light or other
incorporeal hereditaments, or caused by operations by or for the City in the
construction of any public or quasi-public work, neither shall the Landlord be
liable for any defect in the building, latent or otherwise.
SECTION 17
DAMAGE AND DESTRUCTION
17.01. If the building is damaged by fire or any other cause, the following
provisions of this Article shall apply:
A. If the damage is to such extent that the cost of restoration, as
estimated by Landlord, will equal or exceed fifty percent (50%) of
the replacement value of the building (exclusive of foundation) in
its condition just prior to the occurrence of the damage, Landlord
may, no later than the ninetieth (9Oth) day following the damage (or
sooner if Landlord can reasonably make such determination), give
Tenant a written notice stating that it elects to terminate this
Lease. If such notice shall be given: (i) this Lease shall terminate
on the third (3rd) day after the giving of said notice; (ii) Tenant
shall surrender possession of the Premises within a reasonable time
thereafter; and (iii) the rent and additional rent shall be
apportioned as of the date of such surrender and any rent paid for
any period beyond said date shall be repaid to Tenant.
B. If the cost of restoration, as estimated by Landlord, shall, amount
to less than fifty percent (50%) of said replacement value of the
building, or if despite the cost Landlord does not elect to terminate
this Lease, Landlord shall restore the building and the Premises with
reasonable promptness, subject to delays beyond Landlord's control
and delays in the making of insurance adjustments by Landlord, and
Tenant shall not have the right to terminate this Lease.
Landlord need not restore fixtures, improvements or other property of
Tenant nor any interior improvements made by Tenant including all
plumbing, heating, cooling, electrical systems initially installed by
Tenant. Landlord shall not be obligated to make repairs and
alterations in excess of any insurance proceeds recovered under any
circumstances.
17.02. In any case in which the use of the Premises is affected by any
damage to the building, there shall be no abatement of rent. This paragraph
shall be deemed satisfied by Landlord's timely receipt of the proceeds of rental
insurance in lieu of such amounts of rent and all other charges as provided
within this Lease.
17.03. In the event of any loss or damage to the building, the Premises
and/or any contents, each party shall look first to any insurance in its favor
before making any claim against the other party; and to the extent possible
without additional cost, each party shall obtain, for each policy of such
insurance, provisions permitting waiver of any claim against the other party for
loss or damage within the scope of the insurance, and each party, to such extent
permitted, for itself and its insurers waives all such insured claims against
the other party (its agents, employees, and guests).
17.04. In the event of any loss or damage to the building, Tenant shall, at
its sole cost and expense repair and replace all improvements to the interior
which were originally installed by Tenant as set forth in Section 6 in the
manner and as required in Section 8 unless Landlord shall terminate this Lease.
If Landlord elects to terminate this Lease, all
Page 19
23
insurance proceeds for the full replacement cost of such improvements shall be
paid to Landlord as its sole and separate property.
SECTION 18
UTILITIES
18.01. Tenant agrees to pay all charges made against the Premises for gas,
heat, water, electricity, sewage disposition, refuse, telephone and all other
utilities during the term of this Lease as the same shall become due. The
quantity of electricity and natural gas and other utilities furnished to the
Premises shall be separately metered at the Premises by the public utilities to
the extent separate metering is or becomes available, and Tenant shall make
timely payment for all such utilities. Landlord shall not be liable to Tenant
for the quality or quantity of any such utilities, or for any interruption in
the supply of any such utilities.
SECTION 19
USE
19.01. It is understood and agreed between the parties that the Premises
during the continuance of this Lease shall be used and occupied for light
industrial and light manufacturing use and for no other purpose without the
prior written consent of Landlord. Tenant agrees that it will not use or permit
any person to use the Premises or any part thereof for any use or purpose in
violation of the laws of the United States, the State of Michigan, the
ordinances or other regulations of the City of Auburn Hills or of any other
lawful authorities. Tenant will keep the Premises and every part thereof and all
buildings at any time situated thereon in clean and wholesome condition and will
comply with all lawful health and police regulations. All signs and advertising
displayed in and about the Premises shall be such only as to advertise the
business carried on upon the Premises and Landlord shall control the location,
character and size thereof. No signs shall be displayed except as approved in
writing by the Landlord, and no awning shall be installed or used on the
exterior of said building unless approved in writing by the Landlord. Tenant
shall not use the Premises for any purpose which shall exceed the requirements
of the City of Auburn Hills for more than one hundred forty-six (146) car spaces
nor will Tenant use the Leased Premises for any purpose prohibited by the
recorded building or use restrictions or manufacture or produce any materials
which are considered or defined to be hazardous and/or toxic.
SECTION 20
HOLDING OVER
20.01. In the event of Tenant herein holding over after the termination of
expiration of this Lease, thereafter the tenancy shall be from month to month in
absence of a written agreement to the contrary, subject to all the conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy, except that the basic monthly rental shall be one
hundred twenty-five (125%) percent of the basic monthly rental specified in
Section 3 hereof for the first thirty (30) days, two hundred (200%) percent of
the basic monthly rental for the next sixty (60) days, and three hundred (300%)
percent of the basic monthly rental after ninety (90) days. If Tenant desires to
remain after the Lease Term, Landlord and Tenant shall enter into negotiations
to arrive at a mutually agreeable rental for a period not to exceed twelve (12)
months.
Page 20
24
SECTION 21
LIEN ON PERSONAL PROPERTY
21.01. This Lease shall constitute a lien, as security for any rents or
other amounts payable under this Lease and for performance by Tenant of every
other covenant, agreement, obligation, stipulation or condition herein
contained, upon all the personal property and fixtures, of whatever nature which
are or may be placed on the Premises by Tenant and such lien may be enforced
immediately if any rent or other amounts due under this Lease shall be due and
remain unpaid for more than ten (10) days after due, if default be made in any
of the other covenants, agreements, obligations, stipulations or conditions
herein contained and such defaults shall continue for a period of thirty (30)
days after written notice of such default, or if the Premises shall be deserted
or vacated. Such lien may be enforced by the taking and selling of such property
in accordance with Sections 440.9504 (3) and (4), Michigan Compiled Laws
Annotated and any amendments thereof. Landlord may retain in its possession any
property of Tenant's after any sum payable under this Lease shall have become
due. Landlord and its officers, employees and agents shall not be liable in any
action of replevin, claim and delivery, conversion or similar remedy because of
such removal, sale and/or retention. Tenant hereby waives all claims for damages
which may be caused by such removal, sale and/or retention and will save
Landlord harmless, from any loss, costs or damages occasioned by any third
parties claiming rights in such properties retained, sold or disposed of by
Landlord pursuant to this Section. Such lien shall be in addition to any other
rights or remedies Landlord may have as provided by this Lease or as allowed by
law.
SECTION 22
RIGHT OF ENTRY
22.01. Landlord or Landlord's agents shall have the right to enter the
Leased Premises at all reasonable times after reasonable notice to examine the
same and to show them to prospective purchasers or mortgagees. Landlord or
Landlord's agents shall have the further right to enter the Leased Premises to
make such repairs, alterations, improvements or additions as Landlord may deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon the Leased Premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part, and the rent and other
charges reserved shall in no way abate while said repairs, alterations,
improvements, or additions are being made, by reason of loss or interruption of
business of Tenant, or otherwise. Landlord may, at any time, exhibit the Leased
Premises to prospective tenants.
SECTION 23
ADDITIONAL RIGHTS OF LANDLORD
23.01. The Landlord shall have the right, without the consent of Tenant, to
grant to adjacent land owners, including Landlord, at any time and from time to
time during the term of this Lease, as extended, easements and rights of
ingress, egress and common use and enjoyment with respect to the roads,
driveways, parking lots, walks, unimproved portions of the land, water, sewage,
telephone, gas and electricity lines, and Landlord may at any time and from time
to time grant easements, public and private, for such purposes to itself and to
others, and relocate any easements nor or hereafter affecting the land over the
common use areas.
23.02. Landlord reserves (a) the right from time to time, to erect other or
additional buildings in the common areas, to make changes, alterations,
additions, improvements, repairs or replacements in or to the building and/or
to the street entrances, parking lot, and
Page 21
25
any other parts of the building, and to erect, maintain, and use pipes, ducts,
wiring, and conduits in and through the Leased Premises and the building and
other facilities all as Landlord may reasonably deem necessary or desirable;
provided, however, that there be no unreasonable interference with Tenant's use
of the Leased Premises; and (b) the right to eliminate, substitute and/or
rearrange the Common Areas and facilities (which may theretofore have been so
designated) as Landlord deems appropriate in its discretion including any
parking facilities. Tenant's nonexclusive right to utilize the Common Areas
shall be in common with Landlord, other Tenants and occupants of the building
and others to whom Landlord grants such rights from time to time.
SECTION 24
NOTICES
24.01 All notices, demands and requests required or permitted to be given
under the provisions of this Agreement shall be in writing and shall be deemed
given (a) when personally delivered to the party to be given such notice or
other communication, (b) on the business day that such notice or other
communication is sent by facsimile or similar electronic device, fully prepaid,
which facsimile or similar electronic communication shall promptly be confirmed
by written notice, (c) on the third business day following the date of deposit
in the United States mail if such notice or other communication is sent by
certified or registered mail with return receipt requested and postage thereon
fully prepaid, or (d) on the business day following the day such notice or other
communication is sent by reputable overnight courier, to the following:
If to Landlord: Charrington Estates, L. P.
2301 W. Big Beaver, Suite 900
Troy, Michigan 48084
If to Tenant: Jabil Circuit, Inc.
Attn: William Peters
1700 Atlantic Boulevard
Auburn Hills, Michigan 48326
With a copy to: Jabil Circuit, Inc.
Attn: Robert Paver, Esquire
10800 Roosevelt Boulevard
St. Petersburg, Florida 33716
or to such other address as the parties may designate in writing.
SECTION 25
ADDITIONAL RULES
25.01. The Landlord may, from time to time, make such reasonable rules and
regulations as in the Landlord's judgment may be necessary or advisable for the
safety, care and cleanliness of the Premises, the cleanliness of the building in
which the same are located and for the preservation of good order in said
building and the use and occupancy of the demised premises shall be conditioned
upon observance of and compliance with such rules and regulations; provided,
however, that any such rules and regulations shall not unreasonably interfere
with the use by Tenant of the Leased Premises and common areas as contemplated
herein, and further that any such rules and regulations shall not be effective
until at least ten (10) days after Landlord shall have furnished a copy thereof
to Tenant.
Page 22
26
SECTION 26
ADDITIONAL DOCUMENTS
26.01. The parties hereto, upon request, agree to execute any additional
documents required to carry out the intent and provisions of this Lease.
SECTION 27
WAIVER OF RIGHTS AND REDEMPTION
27.01. Tenant hereby expressly waives to and only as may be allowed by law
either now or as may become applicable in the future, any and all rights or
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the Leased Premises, by reason of the violation by
Tenant of any of the covenants or conditions of this Lease, or otherwise.
SECTION 28
WAIVER
28.01. The failure of the Landlord to insist, in any one or more instances
upon a strict performance of any of the covenants of this Lease, or to exercise
any option herein contained, shall not be construed as a waiver of a
relinquishment for the future exercising of such covenant and/or condition or
option, but the same shall continue and remain in full force and effect. The
receipt by the Landlord of rent, with knowledge of the breach of any covenant or
condition hereof, shall not be deemed a waiver of such breach and no waiver by
the Landlord of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by the Landlord.
SECTION 29
NO PARTNERSHIP
29.01. Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent, nor any
other provision contained herein, nor any acts of the parties herein shall be
deemed to create any relationship between the parties hereto other than the
relationship of Landlord and Tenant.
SECTION 30
PARTIAL INVALIDITY AND SEVERABILITY
30.01. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
Page 23
27
SECTION 31
LIENS
31.01. The Tenant shall have no power to do any act or make any contract
which may create or be the foundation for any lien, mortgage or other
encumbrance upon the estate of the Landlord or of any interest of the Landlord
in the demised premises, or upon or in the building or buildings or improvements
thereon or hereafter erected or placed hereon, it being agreed that should the
Tenant cause any improvements, alterations or repairs to be made to the demised
premises, or material furnished or labor performed therein, or thereon, neither
the Landlord nor the demised premises nor any improvements shall under any
circumstances be liable for the payment of any expenses incurred or for the
value of any work done or material furnished to the demised premises or any part
thereof; but all such improvements, alterations, repairs, materials and labor
shall be done at the Tenant's expense and the Tenant shall be solely and wholly
responsible to contractors, laborers and materialmen, furnishing labor and
material to said Premises and building or buildings and improvements or any part
thereof and all such laborers, materialmen and contractors are hereby charged
with notice that they must look solely and wholly to the Tenant and the Tenant's
interest in the Premises, to secure the payment of any bills for work done and
materials furnished.
In the event a mechanic's lien shall be filed against the demised premises
or Tenant's interest therein as the result of the work undertaken by Tenant to
ready the demised premises for the opening of Tenant's business or as a result
of any repairs or alterations made by Tenant, Tenant shall, within ten (10) days
after receiving notice of such lien either by payment of the indebtedness due
the mechanic's lien claimant or by filing a bond (as provided by statute) as
security therefor. In the event Tenant shall fail to discharge such lien,
Landlord shall, among its remedies, including but not limited to those for
default, have the right to procure such discharge by filing such bond and Tenant
shall pay the cost of such bond to Landlord as additional rent upon the first
day that rent shall be due thereafter.
SECTION 32
ENTIRE AGREEMENT
32.01. This Lease and the Exhibits, Riders and/or Addenda, if any, attached
and signed by the parties, set forth the entire agreement between both parties.
Any prior conversations or writings are merged herein and extinguished. No
subsequent amendment to this Lease shall be binding upon Landlord or Tenant
unless reduced to writing and signed. If any provisions contained in a Rider or
Addenda is inconsistent with a provision of this Lease, the provision contained
in said Rider or Addenda shall supersede the Lease provision. This Lease and
such Exhibits, Riders and/or Addenda are agreed upon by the parties as being a
fully integrated document.
SECTION 33
COMPLIANCE WITH LAWS
33.01. Tenant covenants and warrants that during the term of this Lease or
any extension thereof, Tenant, at its expense and under penalty of forfeiture
and damages, has complied and will continue to comply with all statutes,
ordinances, rules, orders, regulations and/or requirements of all county,
municipal, state, federal and other applicable governmental authorities now in
force or which may hereinafter be in force as pertains to the conduct of
Tenant's business. Tenant agrees to indemnify, save and hold Landlord harmless
from any fines or penalties assessed against the demised premises for a
violation of any statutes, ordinances, rules, orders, regulations, and/or
requirements of all county,
Page 24
28
municipal, state federal and other governmental authorities as a result of
Tenant's improper, unusual or unlawful manner of using the demised premises for
the conduct of Tenant's business.
SECTION 34
CONSTRUCTION AND INTERPRETATION
34.01. This Lease shall be construed and interpreted in accordance with the
laws of the State of Michigan.
RENT TO BE NET TO LANDLORD
SECTION 35
35.01. It is the intention of the parties that the rent payable hereunder
shall be net to Landlord, so that this Lease shall yield to Landlord the net
annual rent specified herein during the term of this Lease, and that all costs,
expenses and obligations of every kind or nature whatsoever relating to the
demised premises or common areas shall be paid by Tenant except for those costs,
expenses and obligations specifically designated as those of the Landlord.
SECTION 36
DELAYS
36.01. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots, insurrection, war or
other reason of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay. The party entitled to such extension, hereunder shall give
written notice as soon as possible to the other party hereto of its claim of
rights to such extension and the reason(s) therefor. The provisions of this
Paragraph shall not operate to excuse Tenant from prompt payment of rent, or any
other payments required by the terms of this Lease.
SECTION 37
LIABILITY OF LANDLORD
37.01. If Landlord shall fail to perform any covenant, term or condition of
this Lease upon Landlord's part to be performed, and if as a consequence of such
default Tenant shall recover a money judgment against Landlord, such judgment
shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied thereon against the right, title and interest of
Landlord in the demised premises and out of rents or other income from such
property receivable by Landlord, or out of the consideration received by
Landlord from the sale or other disposition of all or any part of Landlord's
right, title and interest in the demised premises, neither Landlord nor any of
the parties comprising the Landlord herein shall be liable for any deficiency.
Page 25
29
SECTION 38
RECORDING
38.01. Upon the request of either party hereto, the other party shall join
execution of a memorandum or so-called "short-form" of this Lease for the
purpose of recordation. Said memorandum or "short-form" of this Lease shall
describe the parties, the Leased Premises, the term of this Lease, any special
provisions, and shall incorporate this Lease by reference. Tenant shall not
record this Lease prior to the closing of Landlord's mortgage, without the prior
written consent of Landlord.
SECTION 39
SUBORDINATION
39.01. The Landlord reserves the right to subject and subordinate this
Lease at all times to the lien of any mortgage or mortgages now or hereafter
placed upon the Landlord's interest in the said Premises and on the land and
buildings of which the said Premises are a part or upon any buildings hereafter
placed upon the land of which the Leased Premises form a part; provided,
however, that any such subordination shall not affect Tenant's rights
hereunder, unless Tenant shall be in default in this Lease. And the Tenant
covenants and agrees to execute and deliver upon demand such further instrument
or instruments subordinating this Lease to the lien of any such mortgage or
mortgages as shall be desired by the Landlord and any mortgagees or proposed
mortgagees. Tenant hereby irrevocably appoints the Landlord the
attorney-in-fact of the Tenant to execute and deliver any such instrument or
instruments for and in the name of the Tenant consistent with the aforegoing.
OFF SET STATEMENT
39.02. Within ten (10) days after request by Landlord at any time or times,
Tenant shall execute in recordable form and deliver to Landlord a statement, in
writing, certifying (i) that this Lease is in full force and effect; (ii) the
date of commencement of the term of this Lease; (iii) that rent is paid
currently without any offset or defense thereto; (iv) the amount of rent, if
any, paid in advance; and (v) that there are no uncured defaults by Landlord or
stating those claimed by Tenant, provided that, in fact, such facts are accurate
and ascertainable.
ATTORNMENT
39.03. Tenant shall in the event of the sale or assignment of Landlord's
interest in the Leased Premises, or in the event any proceedings are brought for
the foreclosure of such interest or in the event of exercise of the power of
sale under any mortgage made by Landlord covering the Leased Premises, or for
the eviction of Tenant under any underlying Lease by Landlord, attorn to the
purchaser and recognize such purchaser or lessor as the Landlord under this
Lease, notwithstanding the fact that this Lease may terminate upon the
termination of Landlord's interest. Such attornment shall be self-operative upon
demand without the execution or delivery of any further instrument by Tenant;
however, no such attornment (except in the event of the sale for value of the
Leased Premises) shall cause such subsequent Landlord to be liable for any act
or omission of Landlord or subject to any offsets or defenses against Landlord
or bind it for any rent or additional rent which Tenant may have paid in advance
to Landlord.
Page 26
30
SECTION 40
BINDING UPON SUCCESSORS
40.01. The covenants, conditions and agreements made and entered into by
the parties hereto shall be binding upon and inure to the benefit of their
respective heirs, administrators, executors, representative, successors and
assigns.
SECTION 41
LANDLORD'S COVENANT
41.01. Upon payment by the Tenant of the rents herein provided, and upon
the observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Leased Premises for the term hereby demised without hindrance
or interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease, and any mortgages to which this Lease is
subordinate.
SECTION 42
ACCORD AND SATISFACTION
42.01. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement of statement on any
check or any letter accompanying any check or payment as rent be deemed on
accord and satisfaction, and Landlord shall accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this Lease provided.
SECTION 43
SECURITY PROVISION
43.01. The Landlord herewith acknowledges receipt of Twenty-four Thousand
Five Hundred Nine and 56/100 Dollars ($24,509.56) which he is to retain as
security for the faithful performance of all of the covenants, conditions, and
agreements of this Lease, but in no event shall the Landlord be obliged to apply
the same upon rents or other charges in arrears or upon damages for the Tenant's
failure to perform the said covenants, conditions, and agreements; the Landlord
may so apply the security at his option; and the Landlord's right to the
possession of the premises for non-payment of rent or for any other reason shall
not in any event be affected by reason of the fact that the Landlord holds this
security. The said sum if not applied toward the payment of rent in arrears or
toward the payment of damages suffered by the Landlord by reason of the Tenant's
breach of the covenants, conditions, and agreements of this Lease is to be
returned to the Tenant when this Lease is terminated, according to these terms,
and in no event is the said security to be returned until the Tenant has vacated
the Premises and delivered possession to the Landlord.
In the event that the Landlord repossesses himself of the said Premises because
of the Tenant's default or because of the Tenant's failure to carry out the
covenants, conditions, and agreements of this Lease, the Landlord may apply the
said security upon all damages suffered or shall accrue thereafter by reason of
the Tenant's default or breach. The Landlord shall not be obliged to keep the
said security as a separate fund, but may mix the said security with his own
funds.
Page 27
31
SECTION 44
SURRENDER OF PREMISES ON TERMINATION
44.01. Whenever this Lease shall be terminated, whether by lapse of time,
forfeiture, or in any other way, Tenant will yield and deliver up the demised
premises, including the building and improvements thereon and the fixtures and
equipment belonging to Landlord therein contained, peaceably to Landlord in as
good repair as when taken, except for reasonable and normal wear and tear, and
except for damage or destruction resulting from causes which are covered by
insurance.
SECTION 45
RIGHT TO CANCEL.
45.01. Provided Tenant has not been in default and is not in default,
Tenant shall have the right to cancel this Lease at anytime after the 42nd month
of the Commencement Date with one hundred eighty (180) days' written notice.
Tenant shall pay a cancellation penalty of Two-Hundred Twenty Thousand Five
Hundred Eighty-six and 04/100 Dollars ($220,586.04) due and payable upon Lease
termination to Landlord as well as a proration of the brokerage commission paid
and a proration of Landlord's expense to buildout tenant's office improvements.
The right to cancel this Lease shall not be assignable or otherwise transferable
to any person or entity other than a parent or affiliated entity of Tenant as
defined in Section 7.01.
Page 28
32
IN WITNESS WHEREOF, the parties have executed this Agreement the date and
year set forth below:
WITNESSES LANDLORD:
CHARRINGTON ESTATES,
a Michigan Limited Partnership
/s/ /s/
- -------------------------- By: --------------------------
/s/Sandra R. Pisching Its: Partner
- -------------------------- --------------------------
TENANT:
JABIL CIRCUIT, INC.
/s/ By: /s/William S. Peters
- -------------------------- --------------------------
/s/Sandra R. Pisching Its: Operations Manager
- -------------------------- --------------------------
ACKNOWLEDGEMENT OF LANDLORD
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
On this 1 day of October 1997, before me personally appeared Stanley
Frankel, personally know to me to be the person who executed the foregoing Lease
as Partner of CHARRINGTON ESTATES LIMITED PARTNERSHIP, a Michigan Limited
Partnership, on behalf of such Limited Partnership and acknowledged before me
that he executed the same as his free act and deed.
MAJORIE B. SIVAK /s/ Majorie B. Sivak
-----------------------------------------
NOTARY PUBLIC STATE OF MICHIGAN
OAKLAND COUNTY Notary Public, Oakland County, Michigan
My Commission Expires:
My Commission Expires July 24, 1999 -------------------
ACKNOWLEDGMENT OF CORPORATE TENANT
STATE OF Michigan )
--------
)
COUNTY OF Oakland )
-------
On this 1 day of October 1997, before me personally appeared William S.
Peters and _____________ of Jabil Circuit, Inc., which executed the within
instrument, and that said instrument was signed and sealed on behalf of said
corporation and said William S. Peters and acknowledged before
----------------
me said instrument to be the free act and deed of said corporation.
MARJORIE B. SIVAK /s/ Majorie B. Sivak
NOTARY PUBLIC STATE OF MICHIGAN ----------------------------------------
OAKLAND COUNTY Notary Public, County,
MY COMMISSION EXP. JULY 24, 1999 --------------------
My Commission Expires:
------------------
Page 29
33
LEGAL DESCRIPTION
SITE AND SITE PLAN
PART OF THE SOUTHWEST 1/4 SECTION 26, TOWN 3 NORTH, RANGE 10 EAST, CITY OF
AUBURN HILLS (FORMERLY PONTIAC TOWNSHIP), OAKLAND COUNTY, MICHIGAN, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS; BEGINNING AT A POINT WHICH IS S 87 DEGREES
32'56" W 33.07 FEET ALONG THE SOUTH LINE OF SECTION 26 AND THENCE ALONG THE WEST
LINE OF DORIS AVENUE (66 FEET WIDE) N 01 DEGREE 10'43" E 532.18 FEET FROM THE
SOUTH 1/4 CORNER OF SAID SECTION 26, TOWN 3 NORTH, RANGE 10 EAST.
THENCE S 88 DEGREES 29'15" W 598.18 FEET; THENCE NORTHWESTERLY 135 FEET ALONG A
CURVE CONCAVE TO THE SOUTHWEST (RADIUS OF 75 FEET, A CENTRAL ANGLE OF 103
DEGREES 07'53" A CHORD BEARING OF N 23'22" W 117.50 FEET); THENCE N 23 DEGREES
20'30" E 110.00 FEET; THENCE N 02 DEGREES 27'04" W 525.54; THENCE N 87 DEGREES
32'56" E 534.15 FEET; THENCE S 31 DEGREES 41'15" E 109.83 FEET; THENCE S 12
DEGREES 08'18" E 261.25 FEET; THENCE ALONG THE WEST LINE OF DORIS AVENUE (66
FEET WIDE) S 01 DEGREE 10'43" W 384.44 FEET TO THE POINT OF BEGINNING.
CONTAINING 447,535 SQUARE FEET OR 10.274 ACRES OF LAND SUBJECT TO AND TOGETHER
WITH ANY EASEMENTS, RESTRICTIONS OR RESERVATIONS AFFECTING TITLE TO THE
DESCRIBED PREMISES.
EXHIBIT "1" - Page 1 of 1
Page 30
34
LEASED PREMISES PARCEL
[FLOOR PLAN]
Legend
= Leased Premises Parcel Boundary
= Leased Premises
EXHIBIT "2" - Page 1 of 1
Page 31
35
OPDYKE INDUSTRIAL PARK - BUILDING SPECIFICATIONS
OFFICE AREA (7200 Square Feet)
HEATING AND AIR CONDITIONING: Roof mounted heating and air cooling units to be
installed. Gas heat to 72 degrees F. at an outside temperature of 0 degrees F.
and electrically air conditioned to 70 degrees F. at an outside temperature of
90 degrees. All duct work, defusers and thermostats to be supplied and
installed.
CEILING: Ceiling shall be 2' x 4' lay-in white acoustical tile of fissured
design.
WALL FINISH: Interior side of exterior walls to receive 1/2" drywall, taped,
sanded and painted.
ELECTRICAL WATER COOLER: Landlord to supply one (1) electric water cooler in
office area.
FLOOR COVERING ALLOWANCE: Tenant shall receive a floor covering allowance to
cover the cost of tenant's desired floor covering, vinyl base, inclusive of
labor and material for installation, in an amount equal to $12.00 per square
yard.
DOORS: One solid core partition flush birch veneer door will be provided for
each 25 lineal feet of partition allowance. Doors and wood trim shall be stained
and varnished, or painted at tenant's option.
PARTITION STANDARDS: The allowance for interior partitions is five percent (5%)
of the square footage of office space leased.
Typical wall construction shall be metal studs with taped, sanded and painted
drywall. Tenant shall have choice of custom colors.
LIGHTING STANDARDS: Ceiling fixtures to be supplied shall be 2'x 4' lay-in
fluorescent fixtures installed in office area to provide one fixture for 80
square feet of leased office space.
TELEPHONE OUTLETS: One (1) telephone outlet receptacle shall be installed for
each 250 square feet of leased office space.
ELECTRICAL OUTLETS: One (1) single pole light switch per 500 square feet of
leased office space.
ELECTRICAL WALL OUTLETS: One (1) 120 volt duplex outlet for each 200
square feet of leased office space. Floor outlets shall be installed at
additional cost if required.
RESTROOMS: Toilet fixtures shall be installed as required by local code
including installation of barrier free fixtures to meet Michigan Handicapped
Code. Metal toilet partitions and hot water shall be supplied.
EXHIBIT "3" - Page 1 of 2
Page 32
36
OPDYKE INDUSTRIAL PARK - BUILDING SPECIFICATIONS
WAREHOUSE
INTERIOR WALLS: Painted block.
ELECTRICAL SERVICE: 480 volt, 1,000 amps., 3 phase electrical service to serve
entire building.
FIRE SPRINKLER SYSTEM: Entire shop area to have automatic sprinkler system
installed per local municipal code.
CEILING CLEARANCE: 21' clear height.
OVERHEAD DOORS: Two 12' x 14' electrically operated, insulated metal doors.
Interior truckwell with load leveler.
FLOOR FINISH: Sealed concrete floor.
CEILING IN WAREHOUSE AREA: Ceiling to be exposed joists.
WAREHOUSE LIGHTING: Landlord to install metal Halide lighting fixtures based on
one fixture per 400 square feet.
GAS UNIT HEATERS: Per approved plan.
GROUNDS
LANDSCAPING: Professionally designed landscaping per approved site plan. Sod
with full sprinkler system.
CUSTOM ADDITIONS:
Landlord is available to quote and promptly construct and install all tenant
required options, upgrades and additional interior requirements. Architectural
and space planning services are available.
SIGNAGE: Full building user shall be entitled to signature name per municipal
building code.
EXHIBIT "3" - Page 2 of 2
Page 33
37
GUARANTY
ANNEXED TO AND FORMING A PART OF LEASE DATED October 1, 1997, BETWEEN
CHARRINGTON ESTATES, A MICHIGAN LIMITED PARTNERSHIP, AS LANDLORD, AND JABIL
CIRCUIT, INC., AS TENANT.
The under signed William Peters, Operations Manager, whose address is
_________, in consideration of the leasing of the Premises described in the
annexed Lease to the above-named Tenant, do hereby covenant and agree:
A. That if Tenant shall default at any time during the term granted by said
Lease in the performance of any of the covenants and obligations of said
Lease on Tenant's part to be performed, then the undersigned will on
demand well and truly perform the covenants and obligations of said Lease
on Tenant's part to be performed and will on demand pay to Landlord any
and all sums due to Landlord, including all damages and expenses that may
arise in consequence of Tenant's default, and does hereby waive all
requirements of notice of breach or nonperformance by Tenant.
B. That the undersigned may, at Landlord's option, be joined in any action or
proceeding commenced by Landlord against Tenant in connection with the
based upon covenants and obligations in said Lease, and that the
undersigned waives any demand by Landlord and/or prior action by Landlord
of any nature whatsoever against Tenant.
C. That this Agreement and Guaranty shall remain and continue in full force
and effect notwithstanding the alteration of the said Lease by the parties
thereto whether prior to or subsequent to the execution hereof and as to
any renewal, extension, modification or amendment of said Lease and as to
any assignee of Tenant's interest in said Lease, and the undersigned does
hereby waive notice of any of the foregoing, and agree that the liability
of the undersigned hereunder shall not be discharged, in whole or in part,
thereby and shall be based upon the obligations set forth in the said
Lease as the same may be altered, renewed, extended, modified, amended, or
assigned.
D. That undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant, extended
the time of performance by Tenant, released, returned or misapplied other
collateral given later as additional security (including other guaranties
and released Tenant from the performance of its obligations under such
Lease.
E. That this Guaranty shall remain in full force and effect notwithstanding
the institution by or against Tenant, of bankruptcy, reorganization,
readjustment, receivership or insolvency proceedings of any nature, or the
disaffirmance of said Lease in any such proceedings or otherwise.
F. That if this Guaranty is signed by more than one party, their obligations
shall be joint and several and the release of one of such guarantors shall
not release any other of such guarantors.
G. That this Guaranty shall be applicable to and binding upon the heirs,
representatives, successors, and assigns of Landlord, Tenant and Guarantor.
EXHIBIT "4" page 1 of 2
Page 34
38
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this 1ST
day of October, 1997.
WITNESSES: GUARANTOR(S):
/s/ William E. Peters
- --------------------------- -------------------------------------
/s/ Operations Manager
- --------------------------- -------------------------------------
CORPORATE ACKNOWLEDGMENT
STATE OF Michigan )
COUNTY OF Oakland )ss.
)
On this 1 day of October, 199_, before me personally appeared William S.
Peters and ____________________ of Jabil Circuit, Inc., which executed the
within instrument, and that said instrument was signed and sealed on behalf of
said corporation and said William S. Peters and ____________________
acknowledged before me said instrument to be the free act and deed of said
corporation.
Majorie B. Sivak
NOTARY PUBLIC STATE OF MICHIGAN
OAKLAND COUNTY
MY COMMISSION EXP. JULY 24, 1999
/s/ Majorie B. Sivak
Notary Public, _______ County, _______
My Commission Expires: _________
EXHIBIT "4", Page 2 of 2
Page 35