STANDARD COMMERCIAL-INDUSTRIAL TRIPLE NET LEASE
BASIC TERMS SHEET
This Basic Terms Sheet to that certain Standard
Commercial-Industrial Triple Net Lease between the parties listed below is for
the convenience of the parties in quickly referencing certain of the basic terms
of the Lease. It is not intended to serve as a complete summary of the Lease. In
the event of any inconsistency between this Basic Terms Sheet and the Lease, the
applicable Lease provision shall prevail and control.
Date of Lease (See Paragraph 1): December 16, 1996
--------------
Name of Lessor (See Paragraph 1): Holualoa Peoria Avenue Industrial,
-------------- LLC, an Arizona limited
liability company
Name of Lessee (See Paragraph 1): Titan Motorcycle Co. of America, a
-------------- Nevada Corporation
Lessee's Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------
Address of Premises (See Paragraph 2): ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇,
-------------------- Phoenix, Arizona
Approximate Gross Rentable
--------------------------
Area of Premises (See Paragraph 12): 43,444 square feet
------------------
Lessee's Percentage of Insurance.
---------------------------------
Real Property Tax
-----------------
and CAM Amounts (See Paragraph 12): 70.65%
----------------
Lease Commencement Date (See Section 3.1): The business day following full
----------------------- execution of this Lease
Lease Expiration Date (See Section 3.1): March 31, 2002
----------------------
Monthly Base Rent (See Paragraph 4): See Addendum
------------------
Additional Rent: 1. Rental Tax (See Section 4.1)
----------------
2. Insurance Amount (See Section
8.10)
3. Real Property Tax Amount
(Section 10.l)
4. CAM Amount (See Paragraph 11)
Lessee's Security Deposit (See Paragraph 6): $21,775
--------------------------
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Lessee's Permitted Use (See Section 6.1): Assembly and sales of motorcycle
----------------------- parts and related general office
and administration (see Section
6.1(a) for a more complete
description)
Address for Lessor: Holualoa Peoria Avenue Industrial,
------------------- LLC
c/o Wessex Service Companies
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: LESSEE:
------- -------
HOLUALOA PEORIA AVENUE TITAN MOTORCYCLE CO. OF
INDUSTRIAL, LLC, AMERICA, INC. a Nevada corporation
an Arizona limited liability company
By: Holualoa Arizona, Inc.
an Arizona corporation
Its: General Partner
By: /s/ By: /s/
----------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ------------------------------
Its: Authorized Agent Its: C.E.O.
----------------------------- ------------------------------
Date: 1/24/97 Date: 1/24/97
----------------------------- ------------------------------
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STANDARD COMMERCIAL-INDUSTRIAL TRIPLE NET LEASE
1. PARTIES. This Lease, dated December 16, 1996, for reference purposes only, is
made by and between Holualoa Peoria Avenue Industrial, LLC, an Arizona limited
partnership ("Lessor"), and Titan Motorcycle Co. of America, Inc., a Nevada
corporation ("Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all the conditions set forth herein, the
premises demised by this Lease, located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇,
▇, E (the "Premises"), together with a nonexclusive right to use the parking and
common areas (collectively, the "Common Areas"), surrounding the Premises and
within the project commonly known as Peoria Avenue Industrial (the "Project").
The location of the Premises and the parameters of the Common Areas and the
Project are shown on Exhibit "A" attached hereto. All dimensions and areas
quoted herein or in any exhibit attached hereto are approximate and are based on
gross rentable area, rather than solely on areas designed for the exclusive use
and occupancy of tenants.
3. ERM.
3.1. TERM. The term of this Lease shall commence on the business day
following full execution of this Lease ("Commencement Date") and end on March
31, 2002 (expiration Date"), unless sooner terminated pursuant to any provision
hereof ("Term"). Lessor shall deliver possession of the Premises to Lessee on
the Commencement Date.
3.2. INTENTIONALLY DELETED.
4. RENT.
4.1. MONTHLY BASE RENT. Lessee shall pay to Lessor a monthly base rental
as set forth in the Addendum hereto. The monthly base rental due hereunder shall
be payable to Lessor by the first day of each month during the Term at the
address stared herein or to such other persons or at such other places as Lessor
may designate in writing and shall be paid in lawful money of the United States
of America. The Lessee further agrees to pay Lessor, in addition to the rent as
provided herein, an privilege, sales, excise, rental and other taxes (except
income taxes) imposed now or hereinafter imposed by any governmental authority
upon the rentals and all other amounts herein provided to be paid by the Lessee.
Said payment shall be in addition to and accompanying each monthly rental
payment made by Lessee to Lessor.
The base rental set forth in this Section 4.1 is a negotiated figure and shall
govern whether or not the actual gross rentable square footage of the Premises
is the same as set forth in Paragraph 12 hereof. Lessee shall have no right to
withhold, deduct or offset any amount from the base monthly rental or any other
sum due hereunder even if the actual gross rentable square footage of the
Premises is less than that set forth in Paragraph 12. Rent for any period during
the Term which is for less than one month shall be a pro rata portion of the
monthly instrument.
4.2. INTENTIONALLY DELETED.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
Twenty-One Thousand Seven Hundred Seventy-Five and no/100 Dollars ($21,775.00)
67
as security for ▇▇▇▇▇▇'s faithful performance of ▇▇▇▇▇▇'s obligations hereunder.
If Lessee fails to pay rent or other charges due hereunder, or otherwise
defaults with respect to any provision of the Lease, Lessor may use, apply, or
retain all or any portion of said deposit for the payment of any rent or other
charge in default or for the payment of any other sum for which Lessor may
become obligated by reason of ▇▇▇▇▇▇'s default, or to compensate Lessor for any
lose or damage which Lessor may suffer thereby. If Lessor so uses or applies all
or any portion of said deposit, Lessee shall within ten (10) days after written
demand therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount hereinabove stated, and ▇▇▇▇▇▇'s failure to do so
shall be a material breach of this Lease. Lessor shall not be required to keep
said deposit separate from its general accounts. If ▇▇▇▇▇▇ performs all of
Lesses's obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by ▇▇▇▇▇▇, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option, to
the last assignee, if any, of ▇▇▇▇▇▇'s interest hereunder) at the expiration of
the Term and after ▇▇▇▇▇▇ has vacated the Premises. Any mortgagee of Lessor,
purchaser of the Project, or beneficiary of a deed of trust shall be relieved
and released from any obligation to return said deposit in the event such
mortgagee, beneficiary of deed of trust or purchaser becomes the owner of the
Project by reason of foreclosure or trustee's sale (including deed in lieu
thereof) or proceeding in lieu of foreclosure or trustee's sale unless said
deposit shall have been actually delivered to such mortgagee, beneficiary of
deed of trust or purchaser. Such release, however, shall not relieve the person
or entity who owned the Project immediately prior to acquisition of title by
such mortgagee, beneficiary of deed of trust or purchaser of any obligation he
or it may have to return said deposit.
6. USE.
6.1. PERMITTED USES.
(a) The Premises are to be used only for the design, assembly,
sales, and distribution of new motorcycles, motorcycle parts and motorcycle
accessories; in addition, to operation willl include welding, assembly,
painting, machinery, testing, polishing and other allied activities, and related
general office and administration ("Permitted Use") and for no other business or
purpose whatsoever without the prior writted consent of Lessor. No act shall be
done in or about the Premises that is unlawful. Lessee shall not commit or allow
to be committed any waste upon the Premises, or any public or pricated nuisance
or other act or thing which unreasonably disturbs the quiet enjoyment of any
other lessee in the Project, taking into accout, however, ▇▇▇▇▇▇'s Permitted Use
of the Premises. If any of Lessee's machines or equipment unreasonably disturb
any other lessee in the Project, then Lessee shall provide adequate insulation,
or take such other action as may be necessary to eliminate the noise or
disturbance. Lessee, at its expense, shall comply with all laws relating to its
use and occupancy of the Premises and shall observe such reasonable rules and
regulations as may be adopted and made available to Lessee by Lessor from time
to time for the safety, care and cleanliness of the Premises or the Project and
for the preservation of good order therein.
(b) Lessee warrants that the operation of its business shall be
conducted in strict compliance with all applicable recorded private covenants,
conditions and restrictions and all applicable federal, state and local
environmental, safety and other pertinent laws, rules, regulations and
ordinances and that any alterations necessary to the Premises by reason of such
covenants, conditions, restrictions, laws, rules, regulations and ordinances,
including, without limitation, The Americans With Disabilities Act, shall be at
Lessee's sole cost and expense. Lessee represents and warrants to Lessor that
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there is no risk to Lessee, ▇▇▇▇▇▇'s visitors and others using the Premises
arising from ▇▇▇▇▇▇'s operations. Lessee shall indemnify, defend and hold
harmless Lessor from and against any claim, liability, expense, lawsuit, loss or
other damage, including reasonable attorneys' fees, arising from or relating to
▇▇▇▇▇▇'s use of the Premises or Lessee's activities within the Project or any
violations of the Americana with Disabilities Act due to the use of the Premises
by Lessee, its employees, subtenants, agents, guests or invitees.
6.2. CONDITION OF PREMISES. Lessee hereby accepts the Premises in their
condition existing as of the date of the execution hereof or in the condition
described on the attached Exhibit "B," whichever is applicable, subject to all
applicable laws, ordinances and regulations governing and regulating the use of
the Premises, and subject to all matters disclosed thereby. ▇▇▇▇▇▇ acknowledges
that neither Lessor nor ▇▇▇▇▇▇'s agents has made any representation or warranty
as to the suitability of the Premises for the conduct of ▇▇▇▇▇▇'s business and
that Lessee and its agents and contractors have been provided with an
opportunity to thoroughly inspect the Premises and the Project.
6.3. HAZARDOUS MATERIALS.
(a) As used herein, the term "Hazardous Material" shall mean any
substance or material which has been determined by any state, federal or local
governmental authority to be capable of posing a risk of injury to health,
safety or property, including all of those materials and substances designated
as hazardous or toxic by the city in which the Premises are located, the U.S.
Environmental Protection Agency, the Consumer Product Safety Commission, the
U.S. Food and Drug Administration, the Arizona Department of Environmental
Quality, the Pima County Department of Environmental Quality, or any other
governmental agency now or hereafter authorized to regulate materials and
substances in the environment.
(b) Lessee agrees not to introduce any Hazardous Material in, on or
adjacent to the Premises or in, on or adjacent to the Project without (i)
obtaining Lessor's prior written approval, (ii) providing Lessor with thirty
(30) days prior written notice of the exact amount, nature, and manner of
intended use of such Hazardous Materials, and (iii) complying with all
applicable federal, state and local laws, rules, regulations, policies and
authorities relating to the storage, use, disposal and clean-up of Hazardous
Materials, including, but not limited to, the obtaining of all proper permits.
(c) ▇▇▇▇▇▇ shall immediately notify Lessor of any inquiry, test,
investigation, or enforcement proceeding by, against or directed at Lessee or
the Premises concerning a Hazardous Material. ▇▇▇▇▇▇ acknowledges that Lessor,
as the owner of the Premises, shall have the right, at its election, in its own
name to negotiate, defend, approve, and appeal, at ▇▇▇▇▇▇'s expense, any action
taken or order issued by any applicable governmental authority with regard to a
Hazardous Material released onto the Premises or the Project by ▇▇▇▇▇▇.
(d) If Lessee's storage, use or disposal of any Hazardous Material
in, on or adjacent to the Premises or the Project results in any contamination
of the Premises, the Project, the soil, surface or groundwater thereunder or the
air above and around the Premises and the Project (i) requiring re- mediation
under federal, state or local statutes, ordinances, regulations or policies, or
(ii) at levels, in excess of de minimum levels, which are unacceptable to
Lessor, in ▇▇▇▇▇▇'s reasonable discretion, ▇▇▇▇▇▇ agrees to clean-up the
contamination immediately, at ▇▇▇▇▇▇'s sole cost and expense. ▇▇▇▇▇▇ further
agrees to indemnify, defend ant hold ▇▇▇▇▇▇ harmless from and against any
claims, suits, causes of action, costs, damages, loss and fees, including
attorneys' fees and costs, arising out of or in connection with (i) any clean-up
69
work, inquiry or enforcement proceeding relating to Hazardous Materials
currently or hereafter used, stored or disposed of by Lessee or its agents,
employees, contractors or invitees on or about the Premises or the Project, and
(ii) the use, storage, disposal or release by Lessee or its agents, employees,
contractors or invitees of any Hazardous Materials on or about the Premises or
the Project.
(e) Notwithstanding any other right of entry granted to Lessor under
this Lease, Lessor shall have the right to enter the Premises or to have
consultants enter the Premises throughout the Term at reasonable times and upon
reasonable prior notice to Lessee for the purpose of determining: (1) whether
the Premises are in conformity with federal, state and local statutes,
regulations, ordinances and policies, including those pertaining to the
environmental condition of the Premises; (2) whether Lessee has complied with
this Paragraph 6; and (3) the corrective measures, if any, required of Lessee to
ensure the safe use, storage and disposal of Hazardous Materiala. ▇▇▇▇▇▇ agrees
to provide access and reasonable assistance for such inspections. Such
inspections may include, but are not limited to, entering the Premises with
machinery for the purpose of obtaining laboratory samples. Lessor shall not be
limited in the number of such inspections during the Term. If, during such
inspections, it is found that ▇▇▇▇▇▇'s use of Hazardous Materials constitutes a
violation of this Lease, Lessee shall reimburse Lessor for the cost of such
inspections within ten (10) days of receipt of a written statement therefor. If
such consultants determine that the Premises are contaminated with Hazardous
Material as a result of a release(s) by Lessee or are in violation of any
applicable environmental law, and such violation did not exist prior to the
Commencement Date, Lessee shall, in a timely manner, and at its expense, remove
such Hazardous Materials or otherwise comply with the recommendations of such
consultants to the reasonable satisfaciton of Lessor and any applicable
governmental agencies. If Lesse fails to do so, Lessor, at its sole discretion,
may, in addition to all other remedies available to Lessor under this Lease and
at law and in equity cause the violation and/or contamination to be remedied at
▇▇▇▇▇▇'s sole cost and expense. The right granted to Lessor herein to inspect
the Premises shall not create a duty on ▇▇▇▇▇▇'s part to inspect the Premises,
or leability of Lessor for ▇▇▇▇▇▇'s use, storage or disposal of Hazardous
Materials, it being understood that Lessee shall be solely responsible for all
liability in connection therewith.
(f) Lessee shall surrender the Premises to Lessor upon the
expiration or earlier termination of this free of Hazardous Materials (other
that those, if any, existing as of the Commencement date) and in a condition
which complies with all governmental statutes, ordinances, regulations, and
policies, recommendations of consultants hired by ▇▇▇▇▇▇, and such other
reasonable requiremeents as may be imposed by Lessor.
(g) ▇▇▇▇▇▇'s obligations under this Paragraph 6 and all
indemnification obligations of Lessee under this Lease shall survive the
expiration or earlier termination of this Lease.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1. LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraph 9 and
except for damage caused by any negligent or intentional act or omission of
Leased, Lessee's agents, employees or invitees and except for Lessor's right to
include certain costs as Total Common Area Charges pursuant to Paragraph 11,
Lessor, at Lessor's expense, shall keep in good order, condition, and repair the
foundations, exterior and load bed walls, and the exterior roof of the Premises
(including the structural support thereof). Lessee expressly waives the benefit
of any statute now or hereafter in effect which would otherwise afford Lessee
70
the right to make repairs at Lessors's expense or to terminate this Lease became
of Lessors failure to keep the Premises in good order, condition, and repair.
7.2. LESSEE'S OBLIGATIONS.
(a) Lessee shall, at in expense throughout the Term, maintain,
service, replace, and keep in good repair the interior of the Premises except
those items for which Lessor is specifically made responsible under Section 7.1.
and mechanical equipment of the Premises, and an other aspects of the Premises
including such items as floors, ceilings, walls, doors, glass, plumbing, paint,
heating, ventilating and air conditioning equipment, partitions, electrical
equipment, wires, and electrical fixtures, and surrender same upon the
expiration of the Term in the same condition as received, ordinary wear and tear
excepted. Lessee shall give Lessor prompt written notice of any defects or
breakage in the structure, equipment, fixtures, or of any unsafe condition upon
or within the Premised Maintenance, repairs, and replacements to the mechanical,
plumbing, electrical, and heating, ventilating and air conditioning systems
serving the Premises shall be performed by licensed contractors, acceptable to
Lessor in its reasonable discretion.
(b) Lessee shall enter into and keep in force during the Term a
preventive maintenance contract with a licensed heating and air conditioning
contractor acceptable to Lessor providing for the regular inspection and
maintenance of the heating, ventilating and air conditioning equipment serving
the Premises.
(c) On the last day of the Term, or on any sooner termination,
▇▇▇▇▇▇ shall surrender the Premises to Lessor in the same condition as received,
broom clean, ordinary usear and tear and damage by fire or other casualty
excepted. Lessee shall repair any damage to the Premises occasioned by the
removal of its trade fixtures, furnishings and equipment pursuant to Section
7.3, which repair shall include without limitation the patching and filling of
holes and repair of structural damage.
7.3. ALTERATIONS AND ADDITIONS.
(a) Alterations, improvement, additions, utility installations or
removal of any fixtures may not be made to the Premises without the prior
written consent of Lessor, and any alterations, improvements, additions or
utility installations to the Premises, excepting movable furniture and machinery
and trade fixtures, shall, at Lessor's option, become part of the realty and
belong to Lessor upon the expiration or earlier termination of this Lease.
However, this shall not prevent Lessee from installing trade fixtures,
machinery, or other trade equipment in conformance with an applicable
ordinances, regulations and laws. Lessee shall keep the Premises, the building
in which the Premises are located, and the land on which the Premiers are
situated free from any lien. arising out of any work performed for, material
furnished to, or obligations incurred by the Lessee. It is further understood
and agreed that under no circumstance is the Lessee to be deemed the agent of
the Lessor for any alteration, repair, or construction within the Premises, the
same being done at the sole expense of the Lessee. All contractors, materialmen,
mechanics, and laborers are hereby charged with notice that they must look only
to the Lessee for the payment of any charge for work done and materials
furnished upon the Premises during the Term.
(b) Upon the expiration or sooner termination of the Term, Lessee
shall, upon written demand by ▇▇▇▇▇▇, at ▇▇▇▇▇▇'s sole expense, with due
diligence, remove any alteration, addition or improvement made by Lessee,
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designated by Lessor to be removed (except the Leasehold Improvements described
in Exhibit "B"), and repair any damage to the Premises caused by such removal.
Lessee shad remove an of its movable property and trade fixtures which can be
removed without damage to the Premises at the expiration or earlier termination
of this Lease and shall pay Lessor for Al damages from injury to the Premises or
Project resulting from such removal.
8. INSURANCE; INDEMNITY.
8.1. LESSEE'S LIABILITY INSURANCE. Lessee shalt at ▇▇▇▇▇▇'s expense,
obtain and keep in force curing the Term a policy of commercial general
liability insurance written on an occurrence brain insuring Lessee against any
liability arising out of the use, occupancy, or maintenance of the Premiaea and
ad areas appurtenant thereto. Such insurance shall be primary and not
contributing with any insurance maintained by Lessor, shall have a combined
single limit of liability of $2,000,000 and shall name Lessor as an additional
insured. The limits of said insurance shall not, however, limit the liability of
Lessee hereunder. Said insurance shall have a Lessor's Protective Liability
endorsement attached thereto, and shall contain a contractual liability
endorsement covering all indemnification obligations of Lessee hereunder. If
Lessee shall fail to procure and maintain said insurance, Lessor may, but shall
not be required to, procure and maintain the same, but at the expense of ▇▇▇▇▇▇.
8.2 LESSEE'S PROPERTY INSURANCE. Lessee shall, at Lessee's expense, obtain
and keep in force during the Term a policy or policies of insurance covering
loss or damage to ▇▇▇▇▇▇'s personal property, merchandise, stock in trade,
fixtures and equipment located on the Premises from time to time, in the amount
of the full replacement value thereof, providing protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (special form).
8.3 LESSOR'S LIABILITY INCURANCE. Lessor shall obtain and keep in force
during the Term a policy of commercial general liability insurance written on
occurrence basis insuring Lessor against any liability arising out of the
ownership, use, occupancy, or maintenance of the Project, including the Common
Areas. Such insurance shall have a combined single limit of liability of at
least $2,000,000.
8.4. LESSOR'S PROPERTY INSURANCE. Lessor shall obtain and keep in force
during the Term a policy or policies of insurance covering lose or damage to the
Project, in the amount of the fun replacement value thereof, exclusive of
footings and foundations, providing protection against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended peril. (special form). ▇▇▇▇▇▇ understands and agrees
that the insurance described in this Section 8.4 will not cover ▇▇▇▇▇▇'s
personal property, merchandise, stock in trade, trade fixtures and equipment.
8.5. BUSINESS INTERRUPTION INSURANCE. Lessor may, at its option, obtain
and keep in force during the Term a policy of business interruption insurance in
an amount sufficient to cover any loss of income from the Project for a period
of twelve (12) months.
8.6. INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated "A-XII" or better by A. M. Beat Co., in Best's Key guide. On or
prior to the Commencement Date, Lessee shall deliver to Lessor copies of
policies of liability insurance required under Section 8.1 and policies of
casualty insurance required by Section 8.2 or certificates evidencing the
72
existence and amounts of such insurance, and in the case of the liability
insurance policy indicating that Lessor has been named an addition! insured
thereunder. all such policies and certificates of insurance shall state
explicitly that such insurance shall not be cancelable or subject to reduction
of coverage or other modification except upon at least thirty (30) day's advance
written notice by the insurer to Lessor. Lessee ahoy furnish Lessor with
renewals or "binders" thereof not ▇▇▇▇ than ten (10) days prior to the
cancellation or termination of any such policy, failing which, if Lessor coca
not receive such renewals or "binders" within one ( 1) business day after
written request to Lessee, Lessor may order such insurance and charge the cost
thereof to Lessee, which amount shall be payable by Lessee upon demand. Lessee
shall not do or permit to be done anything which shall invalidate the insurance
policies referred to in Sections 8.2 and 8.3. Either party may provide any
required insurance under a so-called blanket policy or policies covering other
parties and locations and may maintain the required coverage by a so-called
umbrella policy or policies, so long as the required coverage is not thereby
diminished.
8.7. WAIVER OF SUBROGATION. Lessee and Lessor each hereby waives any and
an rights of recovery against the other, or against the officers, partners,
employees, agent, and representatives of the other, for loss of or drainage to
such waiving party or its property or the property of others under its control,
where such loss or damage is insured against and actuary covered under any
property insurance policy in force at the time of such lose or damage, but such
waiver extends only to the extent of the actual insurance coverage. ▇▇▇▇▇▇ and
Lessor shall, upon obtaining the policies of insurance required hereunder, give
notice to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
8.8. INDEMNITY. Lessee shall indemnify, defend and hold harmless Lessor
and its managers, members, agents and employees from and against any and all
claims, losses, costs, liabilities and damages, including, without limitation,
attorneys' fees and costs, arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work, or things done,
permitted, or suffered by Lessee in or about the Premises, and shall further
indemnify, defend and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
▇▇▇▇▇▇'s part to be performed under the terms of this Lease or arising from any
negligence of the Lessee, or any of the Lessee's agents, contractors or
employees, and from and against an costs, attorneys' fees, expenses, and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon. ▇▇▇▇▇▇, as a material part of the consideration to
Lessor, hereby assumes all risk of damage to property or injury to persona, in,
upon, or about the Premises arising from any cause and Lessee hereby waives all
claims in respect thereof against ▇▇▇▇▇▇. Lessor shall indemnify, defend and
hold harmless Lessee and its officers, directors, shareholders, agents and
employees from and against any and all claims, losses, costs, liabilities and
damages, including, without limitation, attorneys' fees and costs, arising from
any accident, injury or damage occurring on the Common Areas, but only if and to
the extent such claim, loss, cost, liability or damage is covered by Lessor's
liability insurance provided for in Section 8.3 (or would have been covered by
such insurance if Lessor fails to maintain same), and ▇▇▇▇ further indemnify,
defend and hold harmless Lessee from and against any and all claims arising from
any breach or default in the performance of any obligation on Lessor's part to
be performed under the terms of this Lease, and from and against all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon.
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8.9. EXEMPTION OF LESSOR FROM LIABILITY.
(a) Lessee hereby agrees that Lessor and its agents shall not be
liable for injury to ▇▇▇▇▇▇'s business or any loss of income therefrom or for
damage to the goods, wares, merchandise, or other property of Lessee, Lessee's
employees, invitees, customers, or any other person in or about the Premises,
nor shall Lessor be liable for injury to the person of Lessee, Lessee's
employees, agents or contractors, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction, or other defect of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or light fixtures, or from any other came whether
avid damage or injury results from conditions arising upon the Premises or upon
other portions of the building of which the Premises are a part, or from other
sources or places, and regardless of whether the came of such damage or injury
or the means of repairing the same is inaccessible to Lessee. Lessor shall not
be liable for any damages arising from any act or neglect of any other lessee,
if any, of the building in which the Premises are located.
(b) If any of Lessees personal property shall be assessed and blued
with ▇▇▇▇▇▇'s real property, Lessee shall pay Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement setting forth
the taxes applicable to ▇▇▇▇▇▇'s property.
11. COMMON AREA CHARGES.
11.1. GENERALLY. In addition to the rental and other charges herein
provided to be paid by Lessee to Lessor, Lessee shall pay to Lessor, as
additional rent and as ▇▇▇▇▇▇'s share of the cost of maintaining, operating,
repairing and managing the Project, ▇▇▇ he's proportionate share (as defined in
Paragraph 12) of the Total Common Area Charges (as hereinafter defined) for any
calendar year during the Term (the "CAM Amount"). Lessee shall pay Lessor in
advance its monthly estimated proportionate share (as described in Paragraph 12)
of the Total Common Area Charges, together with all applicable rental taxes due
thereon, within ten (10) days after receipt of an invoice from Lessor setting
forth Lessor's estimate of such amount. Within ninety (90) days following the
end of each calendar year during the Term or as soon thereafter as is reasonably
possible, Lessor shall furnish Lessee with a statement of all Total Common Area
Charges for the Project for the preview calendar year indicating the computation
of Lessee's proportionate share of the Total Common Area Charges for such
calendar year and the payments made by Lessee during such calendar year (the
"Actual Statements"). If ▇▇▇▇▇▇'s aggregate estimated monthly payments actuary
paid to Lessor for the calendar year are greater than Lessee's proportionate
share of the Total Common Area Charges for such calendar year, Lessor shall
promptly pay the excess to Lessee or shall apply the excess to any past due
amounts owing from Lessee to Lessor, if the payment made are less than Lessee's
proportionate share, Lessee shall pay the difference to Lessor within ten (10)
days of its receipt of such statement. Total Common Area Charges shall consist
of all costs and expenses of every type associated with the management, repair,
maintenance, and insuring of the Common Areas including, without limitation,
costs and expenses for the following: gardening and landscaping, utilities,
water and sewer charges; premiums for liability, property damage and casualty
insurance and ▇▇▇▇▇▇▇'▇ compensation insurance; an personal property taxes
levied on or attributable to personal property used in connection with the
Common Areas; straight line depreciation on personal property owned by Lessor
which is consumed in the operation or maintenance of the Common Areas; rental or
lease payments paid by Lessor for rented or leased personal property used in the
operation or maintenance of Common Areas; fees for required licenses, and
permits; refuse disposal charges; repairing, resurfacing, repaving, maintaining,
painting, lighting, cleaning, refuse removal, security and similar items; repair
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and maintenance of exterior roof and exterior painting of the Project (except
the initial painting of the exterior of the Project after the Commencement Date;
fees paid to property managers; and other similar costs and expense. relating to
the Common Areas. Said Total Common Area Charges shall further include an
charges for regular preventive maintenance service, repair and maintenance of
mechanical equipment including, without limitation, heating, ventilating and air
conditioning equipment, which serves the Common Areas, the cost of lighting,
maintenance and repair of the Project identification signs, and the cost of
repairing and maintaining the plumbing, electrical and other off-Premises
facilities serving the Premises or the Project. Notwithstanding the foregoing to
the contrary, Total Common Area Charges shall include costs of a capital nature
(including, without limitation, capital improvement, capital replacements,
capital repairs, capital equipment and capital tools) only to the extent of the
amortization on a straight-line basis of the same over the useful life (together
with interest at the rate of twelve percent ( 12%) per annum on the unamortized
balance), but only if the same are: (i) reasonably intended to produce a
reduction in operating charges or energy consumption; or (ii) required after the
date of this Lease under any governmental law or regulation that was not
applicable to the Project or any portion thereof at the Commencement Date; or
(in) for the repair or replacement of any equipment needed to operate the
Project at the same quality level as prior to the replacement.
11.2. ▇▇▇▇▇▇'S AUDIT RIGHT. If Lessee disputes the amount of Total Common
Area Charges set forth in any Actual Statement delivered by Lessor, Leases shall
have the right, to be exercised, if at al, not later than six (6) months
following receipt of such Actual Statement, to cause Lessor's books and records
with respect to the preceding calendar year to be audited by a certified public
accountant mutually acceptable to Lessor and Lessee. The amounts payable under
Section 11.1 by Lessor to Lessee or by Lessee to Lessor, as the case may be,
shall be appropriately adjusted on the basis of such audit. If such audit
discloses a liability for further refilled by Lessor to Lessee in excess of five
percent (5%) of the payment previously made by Lessee for such calendar year,
Lessor shall pay for the cost of the audit; otherwise, Lessee shall pay for the
cost of the audit. If Lessee falls to request an audit within the six (6) month
period, such Actual Statement shall be conclusively binding upon Lessor and
Lessee.
12. PROPORTIONATE SHARE. For purposes of Sections 8.10 and 10.1 and Paragraphs
11 and 13. Lessee's proportionate share to be used to calculate the Insurance
Amount, the Real Property Tax Amount, the CAM Amount and Lessee's responsibility
for any utilities supplied to the Premises which are not separately metered
shall be a fraction, the numerator of which is the total first floor gram
rentable square footage of the Premises, and the denominator of which is the
total first floor grow rentable square footage of the entire Project, from time
to time. The parties agree that as of the Commencement Date, ▇▇▇▇▇▇'s
proportionate share will be 70.65 percent, which figure is derived by dividing
43,444 square feet by 61,492 square feet. ▇▇▇▇▇▇'s proportionate share as of the
Commencement Date, as described above, is a negotiated figure and shall govern
whether or not the actual rentable square footage of the Premises and/or the
entire Project as of the Commencement Date is the same as that described above.
13. UTILIZER. Lessee shall pay for an water, gas, heat, light, power, telephone,
and other utilities end services supplied to the Premises, together with any
taxes thereon. If any utility supplied to the Premises is not separately
metered, Lessee shall pay its proportionate share of the cost thereof as Total
Common Area Charges.
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14 ASSIGNMENT AND SUBLETTING
14.1. LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law, assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessees interest in this Lease or in the Premises,
without ▇▇▇▇▇▇'s prior written consent. Any attempted assignment, transfer,
mortgage, encumbrance, or subletting without such consent shall be void, and
shall constitute a breach of this Lease. Lessor shall not unreasonably withhold
its consent to an assignment or sublease by ▇▇▇▇▇▇.
14.2. NO RELEASE OF LESSEE. Regardless of Lessor's consent, no subletting
or assignment shall release Lessee of ▇▇▇▇▇▇'s obligation or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting.
15. DEFAULTS; REMEDIES.
15.1. DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by ▇▇▇▇▇▇:
(a) The abandonment of the Premises by ▇▇▇▇▇▇. For purposes hereof,
Lessee shall not be deemed to have abandoned the Premises merely by vacating the
same, so long as ▇▇▇▇▇▇ continues to comply with an of its obligations under
this Lease, including in obligation to pay rent and other sums due hereunder.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder within ten (10) days after
written notice from Lessor that the same is due. Notwithstanding the foregoing
to the contrary, Lessor shall not be required to give notice to Lessee that rent
or any other payment required to be made by Lessee hereunder is due more than
once in any twelve (12) month period. Thereafter, without notice, the faunae by
Lessee to make any such payment with ten ( 10) days of the date when due shall
constitute a material default and breach of this Lease by Lessee.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in Subsection (b) above, where such failure shad
continue for a period of thirty (30) days after written notice thereof from
Lessor to Lessee; provided, however, if the nature of such failure is such that
it cannot reasonably be cured within the thirty (30) day period, then Lessee
shall have such additional time as is reasonably required to cure such failure,
but in no event more than ninety (90) days after written notice thereof from
Lessor to Lessee, provided ▇▇▇▇▇▇ commences to cure during the thirty (30) day
period and proceeds to cure with diligence and continuity.
(d) (i) The making by ▇▇▇▇▇▇ of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by or against Lessee
of a petition to have ▇▇▇▇▇▇ adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
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the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of ▇▇▇▇▇▇'s asset located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution, or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of ▇▇▇▇▇▇'s
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
(e) The chronic delinquency by Lessee in the payment of monthly
rental or any other periodic payment required to be paid by Lessee under this
Lease. "Chronic delinquency" shall mean failure by lessee to pay monthly rental
or any other periodic payment required to be paid by Lessee under this Lease,
within ten ( 10) days as described in Section 15.1(b) above, for any three (3)
months (consecutive or nonconsecutive) during any twelve ( 12) month period. In
the event of the chronic delinquency, at Lessor's option, Lessor shah have the
additional right to require that monthly rental be paid by Lessee
quarter-annually, in advance, for the remainder of the Term
(f) A guarantor, if any, of this Lease revokes or otherwise
terminates, or purports to revoke or otherwise terminate (by option of law or
otherwise), any guaranty of an or any portion of Lessee's obligations under this
Lease.
15.2. REMEDIES. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any other right or remedy which
Lessor may have by reason of such default or breach:
(a) Terminate this Lease by any lawful means, in which case Lessee
shall immediately surrender possession of the Premises to Lessor. In such event,
Lessor shall be entitled to recover from Lessee an damages incurred by Lessor by
reason of ▇▇▇▇▇▇'s default including, but not limited to, the cost of recovering
possession of the Premises; expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and any
real estate commission actuary paid; the "worth at the time of award"
established by the court having jurisdiction thereof of the amount by which the
unpaid rent and other charges due for the balance of the Term after the time of
▇▇▇▇▇▇'s default exceeds the amount of such rental lose for the same period that
Lessee proves by clear and convincing evidence could have been reasonably
avoided; and that portion of the leasing commission paid by Lessor applicable to
the unexpired term of this Lease. Unpaid instalments of rent or other sums shall
bear interest from the date due at the rate of 15% per annum. For purposes of
this Section 16.2(a), "worth at the time of award" of the amount referred to
above shall be computed by discounting each amount by a rate equal to the prime
rate (or in equivalent) of Bank One, Arizona at the time of the award, but in no
event more than an annual rate of ten percent (10%).
(b) Re-enter the Premises, without terminating this Lease, and
remove any property from the Premises, in which case Lessor shall be entitled to
enforce all of Lessor's rights and remedies under this Lease, including the
right to recover the rent and an other amounts due hereunder as they become due.
No re-entry or taking possession of the Premises by Lessor pursuant to this
Section 15.2 or other action on Lessor's part shall be construed as an election
to terminate the Lease unless a written notice of such intention is given to
Lessee or unless the termination thereof is decreed by a court of competent
jurisdiction. ▇▇▇▇▇▇'s election not to terminate this Lease pursuant to this
Section 15.2(b) or pursuant to any other provision of this Lease shall not
preclude Lessor from subsequently electing to terminate this Lease or pursuing
any of its other remedies.
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(c) Maintain ▇▇▇▇▇▇'s right to possession, in which case this Lease
shall continue in effect, whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of ▇▇▇▇▇▇'s
rights and remedies under this Lease, including the right to recover the rent
and all other amounts due hereunder as they become due.
(d) Pursue any other or additional remedy now or hereafter available
to Lessor under the laws or judicial decisions of the State of Arizona,
including, without limitation, the imposition of a landlord's lien against any
property located within the Premises.
15.3. DEFAULT BY ▇▇▇▇▇▇. Lessor shall not be deemed in default unless
Lessor falls to perform obligations required of Lessor within a reasonable time,
but in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any mortgage or ▇▇▇▇ of trust covering the Premises
whose name and address shall have theretofore been furnished to Lessee in
writing specifying wherein Lessor has failed to perform such obligations;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance, then Lessor shall not be in
default if Lessor commences performance within such 30-say period and thereafter
diligently prosecutes the same to completion. If ▇▇▇▇▇▇ does not perform,
▇▇▇▇▇▇'s mortgagee may perform in Lessor's place ant Lessee must accept such
performance. Except in the event of an actual or constructive eviction, in no
event shall Lessee have the right to terminate this Lease as a result of
Lessor's default, and ▇▇▇▇▇▇'s remedies shall be limited to damages and/or an
injunction. Notwithstanding the preceding sentence to the contrary, if Lessor or
its mortgagee falls to perform as required above in this Section 15.3, then
Lessee shall be permitted to males reasonable repairs to the Premises as set
forth in the default notice referred to above from Lessee. In the event Lessee
exercises its rights hereunder, Lessor will reimburse Lessee the reasonable cost
thereof within thirty (30) days following receipt of a copy of the invoice and
lien waiver from the contractor performing such repairs. In the event Lessor
falls to reimburse Lessee the cost of such repairs within thirty (30) days
following ▇▇▇▇▇▇'s receipt of an invoice and lien waiver, then Lessee shall be
permitted to withhold from the next instrument of monthly base rental an amount
equal to the lesser of (i) the reasonable cost for such repairs, or (ii)
twenty-five percent (25%) of the monthly base rental otherwise due ant payable
for such month. In the event the reasonable cost of such repairs is greater than
twenty-five percent (25%) of the monthly base rental payable for the month in
question, then Lessee shall be permitted to withhold from future instalments of
monthly base rental an amount equal to twenty-five percent (25%) of the monthly
base rental on a monthly basis until such time as the amount withheld equate the
cost incurred by Lessee in making such repairs.
15.4. LATE CHARGES. Lessee hereby acknowledges that late payment by
▇▇▇▇▇▇ to Lessor of rent and other sums due hereunder win cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposes on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any instalment of rent or any other sum due from Lessee shall
not be received by Lessor or ▇▇▇▇▇▇'s designee on or before the expiration of
any applicable cure period, Lessee shall pay to Lessor a late charge equal to
five percent (5%) of such overdue amount. The parties hereby agree that such
late charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of late payment by ▇▇▇▇▇▇. Acceptance of such late charge by
Lessor shall in no event constitute a waiver of ▇▇▇▇▇▇'s default with respect to
such overdue amount nor prevent Lessor from exercising any of the other rights
and remedies granted hereunder.
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16. CONDEMNATION. If less than twenty percent (20%) of the "gross rentable floor
area of the Premises is taken under the power of eminent domain, or sold under
the threat of the exercise of acid power (an of which are herein called
"condemnation"), this Lease shall terminate as to the part so taken as of the
date one (1) day prior to the earlier of the date when the condemning authority
takes title or possession. If twenty percent (20%) or more of the floor area of
the Premises is taken by condemnation, either Lessor or ▇▇▇▇▇▇ may terminate
this Lease by providing the other with written notice thereof within ten (10)
days following the date when the condemning authority takes title or possession,
whichever first occurs. If neither Lessor or Lessee elects to terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the rent
shall be reduced in the proportion that the gross rentable floor area taken
bears to the total gross rentable floor area of the original Premises. Any award
for the taking of all or any part of the Premises under the power of eminent
domain or any payment made under threat of the exercise of such power shall be
the property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any award
for lose or damage to ▇▇▇▇▇▇'s trade fixtures and removable property. In the
event that this Lease is not terminated by reason of such condemnation, Lessor
shalt to the extent of severance damages actually received by ▇▇▇▇▇▇ in
connection with such condemnation, repair any damage to the Premises caused by
such condemnation except to the extent that ▇▇▇▇▇▇ has been reimbursed therefor
by the condemning authority. Lessee shall pay any amount in excess of such
severance damages required to complete such repair. Lessor shall notify Lessee
within ten (10) days after becoming aware of a potential condemnation.
17. GENERAL PROVISIONS.
17.1. ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) days prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
tab to which the rent and other charges are paid in advance, if any; (ii)
acknowledging that there are not, to ▇▇▇▇▇▇'s knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed;
and (iii) setting forth such other statement with respect to this Lease as may
be reasonably requested by ▇▇▇▇▇▇. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrances of the Project.
(b) ▇▇▇▇▇▇'s failure to deliver such statement within such time
shall be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's Performance. and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Project, or any
part thereof, ▇▇▇▇▇▇ hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. Such statements shall be received by Lessor in confidence and shall be
used only for the purpose herein set forth.
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17.2. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean
only the owner or owners at the time in question of the fee title or a lessee's
interest in a ground lease of the Premises. In the event of any transfer of such
title or interest, Lessor herein named (and in case of any subsequent transfers
the then grantor shall be relieved from and after the date of such transfer of
all liability as respects Lessor's obligations thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the time
of such transfer, in which Lessee has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Lessor
shall, subject as aforesaid, be binding on ▇▇▇▇▇▇'s successors and assigns, only
during their respective periods of ownership.
17.3. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof
17.4. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at the
rate of 15% per annum from the date due. Payment of such interest shall not
excuse or cure any default by Lessee under this Lease.
17.5. TIME OF ESSENCE. Time is of the essence.
17.6. CAPTIONS. Section and paragraph captions are not a part hereof.
17.7. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
an agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification.
17.8. NOTICES AND PAYMENTS. all notices and demands which may be required
or permitted to be given to either party hereunder shall be in writing, and all
such notices and demands hereunder shall be sent by certified United States
mail, return receipt requested, postage prepaid, or hand delivered to the
addressee set out below or to such other person or place as each party may from
time to time designate in a notice to the other. all payments due hereunder
shall be aunt by first class United States mail, postage prepaid or hand
delivered to the address of the Lessor set out below or to such other person or
place as Lessor may from time to time designate in a notice to Lessee. Notices
and payments shall be deemed given and made upon actual receipt. Any notice,
demand or payment required or permitted to be given or made hereunder shall be
addressed to ▇▇▇▇▇▇ and Lessee, respectively, at the addressee set forth below:
If to Lessor: Holualoa Peoria Avenue Industrial, LLC
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Holualoa Peoria Avenue Industrial, LLC
c/o Wessex Companies
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Swan ▇▇▇▇
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Holualoa Peoria Avenue Industrial, LLC
▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
If to Lessee: Titan Motorcycle Co. of America
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, CEO
17.9. MORTGAGEE PROTECTION
(a) If, in connection with obtaining financing for the Project or
any portion thereof, Lessor's lender shall request reasonable modifications to
this Lease as a condition to such financing, Lessee shall not unreasonably
withhold, delay or defer in consent to such modifications, provided such
modifications do not materially adversely affect Lessee's rights or increase
Lessee's obligations under this Lease.
(b) ▇▇▇▇▇▇ agrees to give to any trust deed or mortgage holder
(beholders), by prepaid certified mail, return receipt requested, at the same
time as it is given to Lessor, a copy of any notice of default given to Lessor,
provided that prior h such notice Lessee has been notified, in writing, (by way
of notice of assignment of rend and lessee, or otherwise) of the address of such
Holder. Lessee further agrees that if Lessor shall have failed to cure such
default within the time provided for in this Lease, then the Holder shall have
an additional twenty (20) days after expiration of such period, or after receipt
of such notice from Lessee (if such notice to the Holder is required by this
Section 17.9(b)), whichever shall last occur, within which to cure such default
or if such default cannot be cured within that time, then such additional time
as may be necessary if within such twenty (20) days, any Holder has commenced
and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary, to effect such cure), in which event this Lessee shall not be
terminated.
17.10. WAIVERS. No waiver by Lessor of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
▇▇▇▇▇▇ of the same or any other provision. Lessor's consent to or approval of an
act shall not be deemed to render unnecessary the obtaining of Lessor's consent
to or approval of any subsequent act by ▇▇▇▇▇▇. The acceptance of rent hereunder
by Lessor shall not be a waiver of any preceding breach b Lessee of any
provision hereof, other than the failure of Lessee to pay the particular rent so
accepted, regardless of ▇▇▇▇▇▇'s knowledge of such preceding breach at the time
of acceptance of such rent.
17.11. RECORDING. Lessee shall not record this Lease without ▇▇▇▇▇▇'s
prior written consent, and such recordation shall, at the option of Lessor,
constitute a non-curable default of Lessee hereunder. At Lessee's request,
Lessor shall execute and allow the recordation of a short form memorandum of
this Lease, in form reasonably acceptable to Lessor, only if prior to execution
thereof by Lessor, ▇▇▇▇▇▇ executes and delivers to Lessor, in recordable form, a
properly acknowledged quitclaim deed or other instrument extinguishing all of
▇▇▇▇▇▇'s rights and interests in and to the Project and the Premises, and
designating Lessor as the grantee, which deed or other instrument shall be held
by Lessor and may be recorded by Lessor upon the termination or expiration of
this Lease. The memorandum may disclose ▇▇▇▇▇▇'s right of first offer to
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purchase set forth in Paragraph 40 of the Addendum hereto and ▇▇▇▇▇▇'s right of
First refusal set forth in Paragraph 41 of the Addendum hereto.
17.12. HOLDING OVER. If Lessee remains in possession of the Premises or
any part thereof after the expiration of the Term hereof, without the written
consent of Lessor, such occupancy shall be a tenancy at sufferance, for which
Lessee shall pay a monthly base rental of one hundred twenty-five percent (125%)
of the monthly base rental in effect immediately prior to the expiration of the
Term plus all other charges payable hereunder, and upon all the terms hereof
applicable to such a tenancy at sufferance.
17.13. CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
17.14. COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Lessee shall be deemed both a covenant and a condition.
17.15. BINDING EFFECT; CHOICE OF LAW. Subject any provisions hereof
restricting assignment or subletting and subject to the provisions of Section
17.2, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State of
Arizona.
17.16. SUBORDINATION.
(a) This Lease, at Lessor's option and upon written notice to
Lessee, shall be automatically subordinate to any ground lease, mortgage, deed
of trust, or any other hypothecation for security now or hereafter placed upon
the Project and to any and an advances made on the security thereof and to all
renewals, modifications, consolidations, replacement and extensions thereof;
provided, however, as to any ground lease, mortgage, deed of trust, or any other
hypothecation for security hereafter placed upon the Project, such subordination
shall be conditioned upon the ground lessor, mortgagee, beneficiary under deed
of trust or holder of any other hypothecation recording a non-disturbance
agreement in favor of ▇▇▇▇▇▇ in such party's customary form. If Lessor or any
mortgagee, trustee, or ground lessor shall elect to have this Lease prior to the
lien of a mortgage, deed of trust or ground lease, and shall give written notice
thereof to Lessee, this Lease shall be automatically deemed prior to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior or
subsequent to the date of said mortgage, deed of trust, or ground lease or the
date of recording thereof.
(b) ▇▇▇▇▇▇ agrees to execute any commercially reasonable documents
required to further evidence or effectuate such subordination or to make this
Lease prior to the lien of any mortgage, dead of trust or ground lease, as the
case may be, and failing to do so within ten (10) days after written demand,
does hereby make, constitute, and irrevocably appoint ▇▇▇▇▇▇ as ▇▇▇▇▇▇'s
attorney in fact and in ▇▇▇▇▇▇'s name, place and stead, to do so.
17.17. ATTORNEYS' FEES. If either party brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party shall be entitled
to its reasonable attorneys' fees in any such action, on trial or appeal, to be
paid by as fixed by the court.
17.18. LESSOR'S ACCESS. Lessor and ▇▇▇▇▇▇'s agents shall have the right
to enter the Premises at reasonable times and upon reasonable prior notice to
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Lessee between 8 a.m. and 5 p.m. weekdays for the purpose of inspecting the
same, showing the same to prospective purchasers, lenders, consultant and other
professionals and making such alterations, repairs, improvement, or additions to
the Premises or to the building of which they are a part as Lessor may
reasonably deem necessary or desirable. In connection with such entry and in
connection with carrying out any of its responsibilities hereunder or in
privileges as the owner of the Project, Lessor shall be entitled to erect such
scaffolding and other necessary structures or equipment as reasonably may be
required by the character of the work to be performed, provided that Lessor
shall not unreasonably interfere with the conduct of ▇▇▇▇▇▇'s business. Except
as specifically provided herein to the contrary, no entry by Lessor hereunder
nor any work performed by Lessor to the Premises or the Project shall entitle
Lessee to terminate this Lease or to a reduction or abatement of rent or other
amounts owed by ▇▇▇▇▇▇ hereunder nor to any claim for damages. Lessor may at any
time place on or about the Premises any ordinary "For Sale," and during the last
six (6) months of the Term, "For Lease" signs. ▇▇▇▇▇▇ and ▇▇▇▇▇▇'s agent shall
have the right to enter the Premises at any time in the case of an emergency.
17.19. SIGNS AND AUCTIONS. Lessee shall not place any sign upon the
Premises or conduct any auction from the Premises without Lessor's prior written
consent.
17.20. MERGER. The voluntary or other surrender of this Lease by ▇▇▇▇▇▇
or a mutual cancellation thereof shall, at the option of Lessor, terminate all
or any existing subtenancies or may, at the option of Lessor, operate as an
assignment to Lessor of any or all of such subtenancies.
17.21. AUTHORITY. If Lessee is a corporation, a limited liability
company, partnership or other entity, each individual executing this Lease on
behalf of said entity represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said entity, and that this Lease is
binding upon said entity in accordance with its terms. If Lessee is a
corporation, a limited company, partnership or any other entity, Lessee shall
deliver to Lessor, upon ▇▇▇▇▇▇'s execution of this Lease, evidence reasonably
satisfactory to Lessor of the authority of the person(s) signing this Lease on
behalf of Lessee to do so and that ▇▇▇▇▇▇ has approved entering into this Lease.
Such evidence may include a certified copy of a resolution of the Board of
Directors or members or partners of said entity authorizing or ratifying the
execution of this Lease by a specific person(s) or other similar evidence. In
absence of such evidence, the individual(s) executing this Lease guarantees
payment and full performance of this Lease.
17.22. NSF CHECKS. There will be a $50.00 service charge payable to
Lessor on all NSF checks, which charge shall be in addition to, and not in
substitution for, any late charges and interest due hereunder.
18. PARKING AND COMMON AREAS. The Lessee agents, employees and invitees shall be
entitled to park in common with other lessees of Lessor providing that it agrees
not to overburden the parking facilities of the Project and agrees to cooperate
with the Lessor and other lessees in the use of the parking facilities. Lessor
specifically reserves the right, in its absolute discretion, to determine
whether parking facilities are becoming overburdened and in such event to
allocate the parking spaces among the Lessee and other lessees, their agents,
employees, and business invitees using the parking facilities in proportion to
each such Lessee's share of the space within the Project. All loading operations
for receipt or shipment of goods, wares and merchandise by the Lessee shall be
done in the rear of the Premises or in such area therein which is specifically
designated in writing by the Lessor.
19. SAFETY. Lessee shall maintain on the Premises at all times during the Term
hereof an adequate number, size and type of fire extinguishers as are
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appropriate to ▇▇▇▇▇▇'s business. Lessee will at all times adhere to good safety
practices or as may be required by safety inspectors. No goods, merchandise or
materials shall be kept, stored or sold by Lessee on or about the Premises which
are in any way hazardous. Lessee, at in sole expense, shall comply with any and
all requirements of any insurance organization or company necessary for the
maintenance of reasonable few and public liability insurance covering the
Premises, the Project or any portion thereof.
20. ATTORNMENT. In the event any proceedings are brought for foreclosure, or in
the event of the exercise of the power of sale under any mortgage or deed of
trust covering the Premises, the Lessee shall attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the Lessor under this
Lease.
21. NO ACCESS TO ROOF. Lessee shall have no right of access to the roof of the
Premises or the building in which the Premises are located and shall not
install, repair or replace any aerial, fan, air conditioner or other device on
the roof of the Premises or the building in which the Premises are located
without the prior written consent of Lessor. Any aerial, fan, air conditioner or
device installed without such written consent shall be subject to removal, at
▇▇▇▇▇▇'s expense, without notice, at any time.
22. SUCCESS0RS AND ASSIGNS. Subject to any provisions hereof restricting
assignment or subletting and subject to the provisions of Section 17.2, the
covenant and conditions herein contained, inure to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
23. FINANCIAL STATEMENTS. Within fifteen ( 15) days after ▇▇▇▇▇▇'s request,
▇▇▇▇▇▇ shall deliver to Lessor the current financial statements of ▇▇▇▇▇▇, and
financial statements of the two (2) years prior to the current financial
statement year, including a balance sheet and profit and loss statement for the
most recent prior year, all prepared in accordance with generally accepted
accounting principles consistently applied. Such financial statement, balance
sheet and profit and loss statement shall be certified as accurate by Lessee or
a properly authorized representative of Lessee if Lessee is a corporation,
partnership or other business entity. Lessor shall keep such Financial statement
of Lessee confidential and shall not copy or disclose their contents except to
▇▇▇▇▇▇'s manager, members, lenders, and prospective purchasers of the Project.
24. NO ACCORD OR SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than the monthly rent and other sums due hereunder shall be deemed
to be other than on account of the earliest rent or other sums due, nor shall
any endorsement or statement on any check or accompanying any check or payment
be deemed an accord and satisfaction; and Lessor may accept such check or
payment without prejudice to Lessor's right to recover the balance of such rent
or other sum or pursue any other remedy provided in this Lease.
25. ACCEPTANCE. This Lease shall only become effective and binding upon full
execution hereof by ▇▇▇▇▇▇ and delivery of a fully executed copy to ▇▇▇▇▇▇.
26. INABILITY TO PERFORM. This Lease and the obligations of the Lessee hereunder
shall not be affected or impaired because the Lessor is unable to fulfill any of
its obligations hereunder or is delayed in doing so, if such inability or delay
is caused by reason of strike, labor troubles, acts of God, or any other cause
beyond the reasonable control of the Lessor.
27. INTENTIONALLY DELETED.
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28. AlTERATIONS AND COMMON AREAS. Lessor shall have the right to make changes in
the Common Areas or any part thereof, including, without limitation, changes in
the location of driveways, entrances, exits, vehicular parking spaces and the
direction of traffic flow, and designation of restricted areas, as Lessor deems
necessary or advisable for the proper and efficient operation and maintenance of
the Common Areas. Notwithstanding the foregoing, Lessor shall not make changes
in the Common Areas which maturity and adversely affect access to, or visibility
of, the Premises, except temporarily during periods of construction.
29. REVISIONS OF EXHIBIT "A". It is expressly agreed that the depiction of the
Premises, the Project and the Common Areas on Exhibit "A" does not constitute a
representation, covenant, or warranty of any kind by Lessor, and Lessor reserves
the right to change the adze, location, type and number of buildings within the
Project and the location, type, design and dimensions of the Common Areas.
30. OTHER TENANTS. Lessor reserves the absolute right to permit such other
tenancies and businesses in the Project as Lessor, in the exercise of in sole
business judgment, shall determine to best promote the interests of the Project.
Lessee is not relying on the understanding, nor does Lessor represent, any
specific lessee or number of lessees shall during the Term occupy any space in
the Project. Lessee hereby waives all defenses arising from, and Lessor shall
not be liable for damages arising from, any act or neglect of any other lessee
or from ▇▇▇▇▇▇'s acts or omissions in enforcing any provision of its lease
against another lessee, whether or not Lessor has notice of the offending
▇▇▇▇▇▇'s disturbing or unlawful act or the opportunity to cure the disturbance
by invoking its powers under such other lease.
31. NAME OF PROJECT. Lessor shall have the right to change the name of the
Project upon not less than thirty (30) days prior written notice to ▇▇▇▇▇▇.
▇▇▇▇▇▇ agrees that the name of the Project shall be the sole property of and
belong to Lessor. From and after the termination or expiration of the Term for
any reason whatsoever, Lessee shall cease using the name of the Project for any
purpose.
32. JOINT OBLIGATION. If there be more than one ▇▇▇▇▇▇, the obligations
hereunder imposed shall be joint and several.
33. CONSENTS AND APPROVALS. Except as specifically otherwise stated herein, an
consents or APPROVALS requested of Lessor hereunder may be granted or denied by
▇▇▇▇▇▇ in its sole and absolute discretion.
34. BASIC TERMS SHEET. The Basic Terms Sheet to which this Lease is attached is
for the convenience of the parties in quickly referencing certain of the basic
terms of the Lease. It is not intended to gene as a complete summary of the
Lease. In the event of any inconsistency between the Basic Terms Sheet and the
Lease, the applicable Lease provision shall prevail and control.
35. TRIPLE NET LEASE. Lessee acknowledges that this is a Triple Net Lease and
that Lessee shall do all acts and make all payments connected with or arising
out of its use and occupation of the Premises to the end that ▇▇▇▇▇▇ ▇▇▇▇
receive all rent provided for herein free and undiminished by any expenses,
charges, fees, taxes and assessment, and Lessor shall not be obligated to
perform any acts or be subject to any liabilities or to make any payments,
except as otherwise specifically and expressly provided in this Lease.
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The parties hereto have executed this Lease on the dates specified immediately
adjacent to their respective signatures.
This Lease has been prepared for submission to your attorney for trio approval.
No representation or recommendation is made by the Lessor or its agents or
employees as to the legal effect or tax consequences of this Lease or the
transaction relating thereto.
LESSOR: LESSEE:
------- -------
Holualoa Peoria Avenue Titan Motorcycle Co. of America, Inc.
Industrial, LLC, a Nevada corporation
an Arizona limited liability company
By: /s/ By: /s/
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Authorized Agent Title: C.E.O.
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Date: 1/24/97 Date: 1/24/97
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