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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is entered into on February 9,
1994 between Xxxxxxx-Xxxxxxx Properties, a Michigan Co-Partnership
("Landlord"), whose address is 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx, XX 00000-0000
and Energy Electric Cable, Inc., a Michigan Corporation ("Tenant"), whose
address is 000 Xxx Xxxx., Xxxxxx Xxxxx, XX 00000. This Amendment amends the
Building Lease entered into by the parties on December 22, 1988 ("Lease").
For valuable consideration, the parties agree as follows:
1. Section 1.1 of the Lease is amended and completely restated as follows:
SECTION 1
Demise of Premises
1. 1.1 Demise of Premises
Landlord hereby leases to Tenant and Tenant hires from Landlord
certain premises located in the City of Auburn Hills and commonly known as
260 and 000 Xxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000.
Prior to the Second Commencement Date, the term "Premises" shall
consist of the land ("Initial Land") described in Exhibit A attached
hereto and the building (sometimes referred to herein as "Initial
Building") and related improvements (together with the Initial Building,
collectively referred to as the "Initial Improvements") constructed
thereon as described in Exhibit B attached hereto.
Beginning on the Second Commencement Date, the term "Premises" shall
consist of the land ("Entire Land") described in Exhibit D attached hereto
and the entire 87,932 square foot building ("Entire Building") and related
improvements (together with the Entire Building, collectively referred to
as the "Entire Improvements") constructed thereon as described in Exhibit
E attached hereto. Beginning on the Second Commencement Date, the term
"Building" shall mean the Entire Building and the term "Improvements"
shall mean the Entire Improvements.
2. Section 2.1 of the Lease is amended and completely restated as follows:
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SECTION II
Construction of Leasehold Improvements
2.1 Construction of Leasehold Improvements
Landlord agrees to construct certain leasehold improvements to the
Entire Land and the Entire Building prior to February 1, 1994 in
accordance with the plans and specifications attached hereto as Exhibit F
(the "Leasehold Improvements").
3. Section 3.1 and 3.2 of the Lease are amended and completely restated as
follows:
SECTION III
Term of Lease
3.1 Term of Lease.
The term of this Lease begins on the Initial Commencement Date (as
defined in Section 3.2) and continues until the tenth anniversary of the
Second Commencement Date.
"Lease Year" shall mean the consecutive twelve month period
following the Commencement Date or, if the Commencement Date is other than
the first day of a calendar month, then the twelve month period following
the Anniversary Date, and each anniversary thereof. The first Lease Year
shall also include the period from the Commencement Date to the first
Anniversary Date.
3.2 Commencement Date
The commencement date with respect to the Initial Land and Initial
Building ("Initial Commencement Date") shall be
June 9, 1989.
The commencement date with respect to the Entire Land and Entire
Building ("Second Commencement Date") shall be
February 1, 1994.
4. The following paragraph shall be added to Section 4.2 of the Lease:
Notwithstanding any provision in the preceding
paragraph to the contrary;
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(a) The Annual Rent for the Premises for each of the first five
Lease Years following the Second Commencement Date shall be
Four Hundred Eight Thousand and Eighty Three Dollars
($408,833.00) per year, payable in monthly installments of
Thirty-Four Thousand Seventy Three and 58/100 ($34,073.58) on
the first day of each month beginning with February 1, 1994;
provided, however, that if possession of the Entire Building
is not delivered to Tenant on February 1, 1994, then from
February 1, 1994 until possession of the Entire Building is
delivered, rent shall xxxxx on a prorata basis with respect to
that portion of the Entire Building for which possession has
not been delivered. (For example, if 10% of the square footage
of the Entire Building is not ready for occupancy until
February 10, then the rent would be reduced by 10% for those
10 days). Possession shall be deemed delivered when (i) the
space in question is available for occupancy by Tenant, (ii)
the Leasehold Improvements applicable to that space have been
completed, and (iii) Landlord has received a temporary
certificate of occupancy for that space, if required.
(b) The Annual Rent for each of the five Lease Years after the
fifth anniversary of the Second Commencement Date shall be the
lessor of:
(i) Four Hundred Seventy Four Thousand Seven Dollars and
44/100 ($474,007.44); or
(ii) A figure equal to: $408,883 increased in the same
proportion that the CPI for February, 1999 increased
over the CPI for February, 1994;
payable in equal monthly installments, each installment due on the
first day of each month coincident with or following the fifth
anniversary of the Second Commencement Date.
The CPI is defined as the Consumer Price Index for Detroit - All
Urban Consumers (CPI-U): All Items (1982-1984 =100) as promulgated by the
United States Department of Labor. If a CPI is not issued for February,
1999 or February, 1994, the CPI shall be the most recent CPI issued prior
to such respective dates. In the event a substantial change is made in the
method of establishing the CPI, then the CPI will be adjusted to the
figure which would have resulted had no change occurred in the manner of
computing the CPI. In the event that the CPI (or a successor of
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substitute index) is not available, a reliable governmental or other non
partisan publication, evaluating the information previously used in the
CPI, will be used.
By way of example only, Section 4.2(b) is illustrated as follows:
Assuming the CPI for February 1994 is 138.3 and the Lease for CPI for
February, 1999 is 158.7, the Annual Rent for Lease Years after the fifth
anniversary of the Second Commencement Date would be the lessor of:
(i) $474,007.44; or
(ii) $469,195 ($408,883 multiplied by 158.7/138.3), or
namely, $469,195.
5. Section 4.3 of the Lease shall be deleted in its entirety.
6. Section 8.1 is amended by inserting the word "Initial" immediately before the
phrase "Commencement Date" wherever such phrase occurs, and by adding the
following sentence:
With respect to the Leasehold Improvements outlined in Exhibit F,
(a) all Leasehold Improvements that are mechanical in nature shall
be kept in good repair by Landlord at its expense for a period of
two years from February 1, 1994 or their completion, whichever is
later, and (b) all other Leasehold Improvements shall be kept in
good repair by Landlord, at its expense, for a period of one year
from February 1, 1994 or their completion, whichever is later.
7. Section 9A is added as follows:
SECTION 9A
1. Landlord shall provide, at its sole expense, a Phase I environmental
assessment of the portion of the Entire Land and the Building not
previously occupied by Tenant ("Subject Premises") in full
compliance with ASTM Standards E1527-93 and E1528-93. Tenant and
Landlord together shall select the firm which shall perform the
Phase I at Landlord's expense. If the Phase I report suggests or
identifies any areas of environmental concern, Tenant or Landlord
may, at its sole discretion, advise the other in writing that it is
opting to terminate this Amendment and same shall be considered void
ab initio. If neither party so advises the other within 10 days of
receipt of the Phase I report, then the report shall be deemed
acceptable to both parties and said termination rights shall lapse.
2. At the conclusion of this Lease, a supplemental Phase I report shall
be obtained with respect to the operation
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of Tenant on the Entire Premises. The cost of the supplemental Phase
I report shall be split evenly by Landlord and Tenant.
3. Except to the extent permitted by federal, state and local law,
Tenant shall not discharge, release, generate, treat, store, dispose
of or deposit in, on or under the Premises, or permit to be
discharged, released, generated, treated, stored, disposed of or
deposited in, on or under the Premises, any "toxic or hazardous
substance", asbestos, urea formaldehyde insulation, PCB's,
radioactive materials, flammable explosives or any other hazardous
or contaminated substance (collectively "Hazardous Materials")
prohibited, limited or regulated under the Comprehensive
Environmental Response Compensation and Liability Act of 1980
("CERCLA") or under any other applicable federal, state or local
statues, regulations or ordinances (collectively the "Environmental
Laws"). Tenant agrees to indemnify and hold Landlord harmless from
and against any and all claims, liabilities, damages, costs and
expenses (including reasonable attorney fees) incurred by Landlord
relating to or arising as a result of Tenant's breach of this
section, including, without limitation, cleanup costs and future
response costs under CERCLA.
4. Landlord represents and warrants that Landlord does not now use, and
had not at any time since it acquired the Premises (or the buildings
of which the Premises form a part) used or knowingly allowed any
other person to use the Premises for the purpose of disposal,
refining, generating, manufacturing, producing, handling,
transferring, releasing, storing, processing or transporting any
Hazardous Materials and any other substances identified in or for
purposes of the Resource and Conservation Recovery Act of 1976,
Comprehensive Environmental Response Compensation and Liability Act
of 1980, or the Superfund Amendments and Reauthorization Act except
in such a manner permitted under federal, state and local law, and
to the best of Landlord's knowledge the Premises have never ben used
for the foregoing purposes or for the release, generation, storage,
treatment, disposal or deposit of Hazardous Materials except in such
a manner permitted under federal, state and local law; nor has
Landlord conducted or knowingly permitted any activity at the
Premises which was in violation of any other state, local or federal
environmental law, statute or regulation.
Landlord further represents as follows:
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(a) Neither Landlord, nor to its knowledge, any of its prior tenants or
predecessors in interest, have maintained or have had any knowledge
regarding the existence of underground or above ground storage tanks
on the Entire Land and Entire Building at any time.
(b) To the knowledge of Landlord, all operations at the Entire Land and
Entire Building have been in compliance with all applicable laws,
rules, ordinances, permits and regulations regarding the handling of
hazardous substances.
(c) That except for (1) any certificate of occupancy required for Tenant
to take occupancy of the Subject Premises and (2) any permits,
licenses and approvals required of Tenant to conduct its operations,
Landlord represents that it has secured all necessary permits,
licenses and approvals necessary to the current operations at the
Subject Premises and that it is in compliance with such permits,
licenses and approvals.
(d) Landlord represents that it has not received notices of any pending
legislative, administrative, or judicial proceedings, claims or
lawsuits arising out of operations at the Subject Premises.
If any claim of any nature arises out of any activity alleged
to have been violative of any state, local or federal environmental
law, statute or regulation, which violation is alleged to have
occurred prior to the Second Commencement Date of this Lease and
Tenant's occupancy of the Subject Premises, Landlord shall
indemnify, hold harmless and defend Tenant against any claims,
liabilities, damages, costs and expense (including reasonable
attorney fees) arising out of any such alleged violation provided
that such violation was neither (i) known to Tenant prior to
Tenant's occupancy of the Subject Premises or (ii) a result or
consequence of Tenant's operations at the Premises.
5. Within thirty (30) days of the Second Commencement Date and
thereafter upon the reasonable request of Landlord or its lender
from time to time, but not more frequently than once every twelve
(12) months unless required of any of the parties by any applicable
law or governmental authority, Tenant shall furnish Landlord a list
of all Hazardous Materials, to the extent
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regulated by Environmental Laws, used or stored on the Premises.
8. Except as specifically amended by this Amendment, the parties hereby ratify
and reconfirm all other provisions of the Lease.
WITNESSES: LANDLORD:
XXXXXXX-XXXXXXX PROPERTIES, a
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Michigan Co-Partnership
By: /s/
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Its:
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TENANT:
ENERGY ELECTRIC CABLE, INC., a
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Michigan Corporation
/s/ Xxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxx
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Xxxxxx X. Xxxx Its: President
