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EXHIBIT 10.13
[BUILDING TO BE CONSTRUCTED]
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21,600 square feet
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between CROW SPARKS
ASSOCIATES TWO hereinafter referred to as "Landlord", and DAMON DISTRIBUTING CO,
a Nevada Corporation hereinafter referred to as "Tenant";
W I T N E S S T H
1. Premises and Term. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of
Washoe, State of Nevada, more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances, and immunities belonging to or in any way
pertaining to the premises and together with the buildings and other
improvements situated or to be situated upon said premises said real property,
building and improvements being hereinafter referred to as the "premises").
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date", as hereinafter defined, and ending 60 months thereafter, provided,
however, that, in the event the "commencement date" is a date other than the
first day of a calendar month, said term shall extend for said number of months
in addition to the remainder of the calendar month following the "commencement
date".
The "commencement date" shall be the date upon which the buildings and
other improvements erected and to be erected upon the premises shall have been
substantially completed in accordance with the plans and specifications
described on Exhibit "B" attached hereto and incorporated herein by reference.
Landlord shall notify Tenant in writing as soon as Landlord deems said buildings
and other improvements to be completed and ready for occupancy as aforesaid. In
the event that said buildings and other improvements have not in fact been
substantially completed as aforesaid, Tenant shall notify Landlord in writing of
its objections. Landlord shall have a reasonable time after delivery of such
notice in which to take such corrective action as may be necessary, and shall
notify Tenant in writing as soon as it deems such corrective action has been
completed so that said buildings and other improvements are completed and ready
for occupancy. Taking of possession by Tenant shall be deemed conclusively to
establish that said buildings and other improvements have been completed in
accordance with the plans and specifications and that the premises are in good
and satisfactory condition, as of when possession was so taken. Tenant
acknowledges that no representations as to the repair of the premises have been
made by Landlord, unless such are expressly set forth in this lease. After such
"commencement date" Tenant shall, upon demand, execute and deliver to Landlord a
letter of acceptance of delivery of the premises. In the event of any dispute as
to substantial completion or work performed or required to be performed by
Landlord, the certificate of Landlord's architect or general contractor shall be
conclusive.
2. Base Rent and Security Deposit.
A. Tenant agrees to pay to Landlord rent for the premises, in advance,
without demand, deduction or set off, for the entire term hereof at the rate of
See Paragraph 26 attached hereto and made a part hereof Dollars ($-------------)
per month. One such monthly installment shall be due and payable on the date
hereof and a like monthly installment shall be due and payable on or before the
first day of each calendar month succeeding the commencement date recited above
during the hereby demised term, except that the rental payment for any
fractional calendar month at the commencement or end of the lease period shall
be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
the sum of THREE THOUSAND EIGHT HUNDRED EIGHTY EIGHT & No/100 Dollars
($*3,888.00*), which sum shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's covenants and obligations
under this lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit or a measure of Landlord's damages in case of
Tenant's default. Upon the occurrence of any event of default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy provided
herein or provided by law, use such fund to the extent necessary to make good
any arrears of rent or other payments due Landlord hereunder, and any other
damage, injury, expense or liability caused by such event of default; and Tenant
shall pay to Landlord on demand the amount so applied in order to restore the
security deposit to its original amount. Although the security deposit shall be
deemed the property of Landlord, any remaining balance of such deposit shall be
returned by Landlord to Tenant at such time after termination of this lease that
all of Tenant's obligations under this lease have been fulfilled.
3. Use. The demised premises shall be used only for the purpose of
receiving, storing, shipping and selling (other than retail) products, materials
and merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be incidental thereto. Outside storage, including without
limitation, trucks and other vehicles, is prohibited without Landlord's prior
written consent. Tenant shall at its own cost and expense obtain any and all
licenses and permits necessary for any such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which the premises are situated or unreasonably interfere with their
use of their respective premises. Without Landlord's prior written consent,
Tenant shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly inflammable. Tenant will not permit the
premises to be used for any purpose or in any manner (including without
limitation any method of storage) which would render the insurance thereon void
or the insurance risk more hazardous or cause the State Board of Insurance or
other insurance authority to disallow any sprinkler credits.
4. Taxes.
A. Landlord agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the building and the grounds, parking areas, driveways and alleys around
the building; provided, however, that the maximum amount of taxes to be paid by
Landlord hereunder during any one real estate tax year shall be those of 1982 -
1983. If in any real estate tax year during the term hereof or any renewal or
extension the taxes levied or assessed against the building and the grounds,
parking areas, driveways and alleys around the building during such tax year
shall exceed the sum set forth in the preceding sentence, Tenant shall pay to
Landlord as additional rental, upon demand, the amount of such excess. In the
event any such amount is not paid within twenty (20) days after the date of
Landlord's invoice to Tenant, the unpaid amount shall bear interest at the rate
of ten percent (10%) per annum from the date of such invoice until payment by
Tenant.
B. In the event the premises constitute a portion of a multiple occupancy
building, Tenant agrees to pay to Landlord, as additional rental, upon demand,
the amount of Tenant's "proportionate share" of the excess taxes referred to in
Paragraph A above. Tenant's "proportionate share", as used in this lease, shall
mean a fraction, the numerator of which is the space contained in the premises
and the denominator of which is the entire space contained in the building.
C. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
D. The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand from
time to time, as additional rent, the amount of Tenant's "proportionate share"
(as defined in subparagraph 4(B) above) of the cost of such service.
E. Any payment to be made pursuant to this Paragraph 4 with respect to the
real estate tax year in which this lease commences or terminates shall be
prorated.
5. Landlord's Repairs. Landlord shall at his expense maintain only the
roof, foundation and the structural soundness of the exterior walls of the
building in good repair, reasonable wear and tear excepted. Tenant shall repair
and pay for any damage caused by the negligence of Tenant, or Tenant's
employees, agents or invitees, or caused by Tenant's default hereunder. The term
"walls" as used herein shall not include windows, glass or plate glass, doors,
special store fronts or office entrys. Tenant shall immediately give Landlord
written notice of defect or need for repairs, after which Landlord shall have
reasonable opportunity to repair same or cure such defect. Landlord's liability
with respect to any defects, repairs or maintenance for which Landlord is
responsible under any of the provisions of this lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
6. Tenant's Repairs.
A. Tenant shall at its own cost and expense keep and maintain all parts of
the premises (except those for which Landlord is expressly responsible under the
terms of this lease) in good condition, promptly making all necessary repairs
and replacements, including but not limited to, windows, glass and plate glass,
doors, any special office entry, interior walls and finish work, floors and
floor covering, downspouts, gutters, heating and air conditioning systems, dock
boards, truck doors, dock bumpers, paving, plumbing work and fixtures, termite
and pest extermination, regular removal of trash and debris, regular mowing of
any grass, trimming, weed removal and general landscape maintenance, including
rail spur areas, keeping the parking areas, driveways, alleys and the whole of
the premises in a clean and sanitary condition, and maintaining any spur track
serving the premises (Tenant agrees to sign a joint maintenance agreement with
the railroad company servicing the premises, if requested by the railroad
company). Tenant shall not be obligated to repair any damage caused by fire,
tornado or other casualty covered by the insurance to be maintained by Landlord
pursuant to subparagraph 12(A) below, except that Tenant shall be obligated to
repair all wind damage to glass except with respect to tornado or hurricane
damage.
B. Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees.
C. In the event the premises constitute a portion of a multiple occupancy
building, Tenant and its employees, customers and licensees shall have the
exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules
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and regulations, as Landlord may from time to time prescribe and subject to
rights of ingress and egress of other tenants. Landlord shall not be responsible
for enforcing Tenant's exclusive parking rights against any third parties.
Further, in multiple occupancy buildings, Landlord reserves the right to perform
the paving and landscape maintenance, exterior painting and common sewage line
plumbing which are otherwise Tenant's obligations under subparagraph A above,
and Tenant shall, in lieu of the obligations set forth under subparagraph A
above with respect to such items, be liable for its proportionate share (as
defined in subparagraph 4(B) above) of the cost and expense of the care for the
grounds around the building, including but not limited to, the mowing of grass,
care of shrubs, general landscaping, maintenance of parking areas, driveways and
alleys, exterior repainting and common sewage line plumbing; provided, however,
that Landlord shall have the right to require Tenant to pay such other
reasonable proportion of said mowing, shrub care and general landscaping costs
as may be determined by Landlord in its sole discretion; and further provided
that if Tenant or any other particular tenant of the building can be clearly
identified as being responsible for obstructions or stoppage of the common
sanitary sewage line, then Tenant, if Tenant is responsible, or such other
responsible tenant, shall pay the entire cost thereof, upon demand, as
additional rent. Tenant shall pay when due its share, determined as aforesaid,
of such costs and expenses along with the other tenants of the building to
Landlord upon demand, as additional rent, for the amount of its share as
aforesaid of such costs and expenses in the event Landlord elects to perform or
cause to be performed such work.
D. In the event the premises constitute a portion of a multiple occupancy
building, Landlord shall have the right to coordinate any repairs and other
maintenance of any rail tracks serving or to serve the building, and if Tenant
uses such rail tracks, Tenant shall reimburse Landlord from time to time upon
demand, as additional rent, for a share of the costs of such repairs and
maintenance and any other sums specified in any agreement to which Landlord is a
party respecting such tracks, such share to be a fraction, the numerator of
which is the space contained in the premises, and the denominator of which is
the entire space occupied by rail users in the building.
E. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services suggested
by the equipment manufacturer within the operation/maintenance manual and must
become effective (and a copy thereof delivered to Landlord) with thirty (30)
days of the date Tenant takes possession of the premises.
7. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises (including but not limited to roof and wall
penetration) without the prior written consent of Landlord. Tenant may, without
the consent of Landlord, but at its own cost and expense and in a good
workmanlike manner erect such shelves, bins, machinery and trade fixtures as it
may deem advisable, without altering the basic character of the building or
improvements and without overloading or damaging such building or improvements,
and in each case complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations, additions, improvements and
partitions erected by Tenant shall be and remain the property of Tenant during
the term of this lease and Tenant shall, unless Landlord otherwise elects as
hereinafter provided, remove all alterations, additions, improvements and
partitions erected by Tenant and restore the premises to their original
condition by the date of termination of this lease or upon earlier vacating of
the premises; provided, however, that if Landlord so elects prior to termination
of this lease or upon earlier vacating of the premises, such alterations,
additions, improvements and partitions shall become the property of Landlord as
of the date of termination of this lease or upon earlier vacating of the
premises and shall be delivered up to the Landlord with the premises. All
shelves, bins, machinery and trade fixtures installed by Tenant may be removed
by Tenant prior to the termination of this lease if Tenant so elects, and shall
be removed by the date of termination of this lease or upon earlier vacating of
the premises if required by Landlord; upon any such removal Tenant shall restore
the premises to their original condition. All such removals and restoration
shall be accomplished in a good workmanlike manner so as not to damage the
primary structure or structural qualities of the buildings and other
improvements situated on the premises.
8. Signs. Tenant shall have the right to install signs upon the premises
only when first approved in writing by Landlord and subject to any applicable
governmental laws, ordinances, regulations and other requirements. Tenant shall
remove all such signs by the termination of this lease. Such installations and
removals shall be made in such manner as to avoid injury or defacement of the
building and other improvements, and Tenant shall repair any injury or
defacement, including without limitation discoloration, caused by such
installation and/or removal.
9. Inspection. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the premises or
in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this lease. During the period that is six (6) months
prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time during business hours for the purpose of showing the premises and shall
have the right to erect on the premises a suitable sign indicating the premises
are available. Tenant shall give written notice to Landlord at least thirty (30)
days prior to vacating the premises and shall arrange to meet with Landlord for
a joint inspection of the premises prior to vacating. In the event of Tenant's
failure to give such notice or arrange such joint inspection, Landlord's
inspection at or after Tenant's vacating the premises shall be conclusively
deemed correct for purposes of determining Tenant's responsibility for repairs
and restoration.
10. Utilities. Landlord agrees to provide at its cost water, electricity
and telephone service connections into the premises; but Tenant shall pay for
all water, gas, heat, light, power, telephone, sewer, sprinkler charges and
other utilities and services used on or from the premises, together with any
taxes, penalties, surcharges or the like pertaining thereto and any maintenance
charges for utilities and shall furnish all electric light bulbs and tubes. If
any such services are not separately metered to Tenant, Tenant shall pay a
reasonable proportion as determined by Landlord of all charges jointly metered
with other premises. Landlord shall in no event be liable for any interruption
or failure of utility services on the premises.
11. Assignment and Subletting. Tenant shall not have the right to assign
this lease or to sublet the whole or any part of the premises without the prior
written consent of Landlord. Notwithstanding any permitted assignment or
subletting, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under the terms, provisions and
covenants of this lease. Upon the occurrence of an "event of default" as
hereinafter defined, if the premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided, or provided
by law, may at its option collect directly from such assignee or subtenant all
rents becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due to Landlord from Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder.
12. Fire and Casualty Damage.
A. Landlord agrees to maintain standard fire and extended coverage
insurance covering the building of which the premises are a part in an amount
not less than 80% (or such greater percentage as may be necessary to comply with
the provisions of any co-insurance clauses of the policy) of the "replacement
cost" thereof as such term is defined in the Replacement Cost Endorsement to be
attached thereto, insuring against the perils of Fire, Lightning and Extended
Coverage, such coverages and endorsements to be as defined, provided and limited
in the standard bureau forms prescribed by the insurance regulatory authority
for the State in which the premises are situated for use by insurance companies
admitted in such state for the writing of such insurance on risks located within
such state. Subject to the provisions of subparagraphs 12(C), 12(D) and 12(E)
below, such insurance shall be for the sole benefit of Landlord and under its
sole control. If during the second full lease year after the commencement date
of this lease, or during any subsequent year of the primary term or any renewal
or extension, Landlord's cost of maintaining such insurance shall exceed
Landlord's cost of maintaining such insurance for the first full lease year of
the term hereof, Tenant agrees to pay to Landlord as additional rental, the
amount of such excess (or in the event the premises constitute a portion of a
multiple occupancy building. Tenant's full proportionate share [as defined in
subparagraph 4(B) above] of such excess). Said payments shall be made to
Landlord within ten (10) days after presentation to Tenant of Landlord's
statement setting forth the amount due. Any payment to be made pursuant to this
subparagraph A with respect to the year in which this lease commences or
terminates shall bear the same ratio to the payment which would be required to
be made for the full year as the part of such year covered by the term of this
lease bears to a full year.
B. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the premises should be totally destroyed
by fire, tornado or other casualty, or if they should be so damaged thereby
that rebuilding or repairs cannot in Landlord's estimation be completed within
two hundred (200) days after the date upon which Landlord is notified by Tenant
of such damage, this lease shall terminate and the rent shall be abated during
the unexpired portion of this lease, effective upon the date of the occurrence
of such damage.
D. If the buildings situated upon the premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph
12(A) above, but only to such extent that rebuilding or repairs can in
Landlord's estimation be completed within two hundred (200) days after the date
upon which Landlord is notified by Tenant of such damage, this lease shall not
terminate, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair such buildings to substantially
the condition in which they existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the premises by Tenant. If the premises are untenantable in whole or in
part following such damage, the rent payable hereunder during the period in
which they are untenantable shall be reduced to such extent as may be fair and
reasonable under all of the circumstances. In the event that Landlord should
fail to complete such repairs and rebuilding within two hundred (200) days after
the date upon which Landlord is notified by Tenant of such damage, Tenant may at
its option terminate this lease by delivering written notice of termination to
Landlord as Tenant's exclusive remedy, whereupon all rights and obligations
hereunder shall cease and terminate.
E. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the premises
requires that the insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
F. Each of Landlord and Tenant hereby releases the other from any loss or
damage to property caused by fire or any other perils insured through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such times
as the releasor's policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair said policies or
prejudice the right of the releasor to recover thereunder and then only to the
extent of the insurance proceeds payable under such policies. Each of the
Landlord and Tenant agrees that it will request its insurance carriers to
include in its policies such a clause or endorsement. If extra cost shall be
charged therefor, each party shall advise the other thereof and of the amount of
the extra cost, and the other party, at its election, may pay the same, but
shall not be obligated to do so.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees, or of any other person entering upon the
premises, or caused by the buildings and improvements located on the premises
becoming out of repair, or cause by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation the
trustee and beneficiaries if Landlord is a trust), Landlord's
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agents and employees from any loss, liability, claims, suits, costs, expenses,
including without limitation attorney's fees and damages, both real and
alleged, arising out of any such damage or injury; except injury to persons or
damage to property the sole cause of which is the negligence of Landlord or the
failure of Landlord to repair any part of the premises which Landlord is
obligated to repair and maintain hereunder within a reasonable time after the
receipt of written notice from Tenant of needed repairs. Tenant shall procure
and maintain throughout the term of this lease a policy or policies of
insurance, at its sole cost and expense, insuring both Landlord and Tenant
against all claims, demands or actions arising out of or in connection with:
(i) the premises; (ii) the condition of the premises; (iii) Tenant's operations
in and maintenance and use of the premises; and (iv) Tenant's liability assumed
under this lease, the limits of such policy or policies to be in the amount of
not less than $300,000 per occurrence in respect of injury to persons
(including death), and in the amount of not less than $50,000 per occurrence in
respect of property damage or destruction, including loss of use thereof. All
such policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing payment of premiums therefor, shall be delivered to Landlord
prior to the commencement date of this lease. Not less than fifteen (15) days
prior to the expiration date of any such policies, certified copies of the
renewals thereof (bearing notations evidencing the payment of renewal premiums)
shall be delivered to Landlord. Such policies shall further provide that not
less than thirty (30) days written notice shall be given to Landlord before
such policy may be cancelled or changed to reduce insurance provided thereby.
14. Condemnation.
A. If the whole or any substantial part of the premises should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of
the premises for the purpose for which they are being used, this lease shall
terminate and the rent shall be abated during the unexpired portion of this
lease, effective when the physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this lease is not
terminated as provided in the subparagraph above, this lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
lease shall be reduced to such extent as may be fair and reasonable under all
of the circumstances.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their
respective interests in any condemnation proceedings.
15. Holding Over. Tenant will, at the termination of this lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Landlord
agrees in writing that Tenant may hold over the expiration or termination of
this lease, unless the parties hereto otherwise agree in writing on the terms of
such holding over, the hold over tenancy shall be subject to termination by
Landlord at any time upon not less than five (5) days advance written notice,
or by Tenant at any time upon not less than thirty (30) days advance written
notice, and all of the other terms and provisions of this lease shall be
applicable during that period, except that Tenant shall pay Landlord from time
to time upon demand, as rental for the period of any hold over, an amount
equal to one and one-half (1-1/2) the rent in effect on the termination date,
computed on a daily basis for each day of the hold over period. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to extend
this lease except as otherwise expressly provided. The proceeding provisions of
this paragraph 15 shall not be construed as Landlord's consent for Tenant to
hold over.
16. Quiet Enjoyment. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises,
free and clear of all liens and encumbrances, excepting only the lien for
current taxes not yet due, such mortgage or mortgages as are permitted by the
terms of this lease, zoning ordinances and other building and fire ordinances
and governmental regulations relating to the use of such property, and
easements, restrictions and other conditions of record. In the event this lease
is a sublease, then Tenant agrees to take the premises subject to the
provisions of the prior leases. Landlord represents and warrants that it has
full right and authority to enter into this lease and that Tenant, upon paying
the rental herein set forth and performing its other covenants and agreements
herein set forth, shall peaceably and quietly have, hold and enjoy the premises
for the term hereof without hindrance or molestation from Landlord, subject to
the terms and provisions of this lease.
17. Events of Default. The following events shall be deemed to be events
of default by Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent herein
reserved when due, or any payment with respect to taxes hereunder when due,
or any other payment or reimbursement to Landlord required herein when due,
and such failure shall continue for a period of five (5) days from the date
such payment was due.
(b) Tenant shall become insolvent, or shall make a transfer in fraud
of creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or status of
the United States or any State thereof; or Tenant shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
(e) Tenant shall desert or vacate any substantial portion of the
premises.
(f) Tenant shall fail to comply with any term, provision or covenant
of this lease (other than the foregoing in this Paragraph 17).
18. Remedies. Upon the occurrence of any of such events of default
described in Paragraph 17 hereof, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails so to do, Landlord
may, without prejudice to any other remedy which it may have for possession
or arrearages in rent, enter upon and take possession of the premises and
expel or remove Tenant and any other person who may be occupying such
premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim of damages therefor; and Tenant agrees to pay
to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet
the premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the premises and expel or remove
Tenant and any other person who may be occupying such premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and relet the premises and receive the rent
therefor; and Tenant agrees to pay to the Landlord on demand any deficiency
that may arise by reason of such reletting. In the event Landlord is
successful in reletting the premises at a rental in excess of that agreed
to be paid by Tenant pursuant to the terms of this lease, Landlord and
Tenant each mutually agree that Tenant shall not be entitled, under any
circumstances, to such excess rental, and Tenant does hereby specifically
waive any claim to such excess rental.
(c) Enter upon the premises, by force if necessary, without being
liable for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this lease; and Tenant agrees
to reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this lease,
and Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
In the event Tenant fails to pay any installment of rent hereunder as and when
such installment is due, to help defray the additional cost to Landlord for
processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to five percent (5%) of such installment; and the
failure to pay such amount within ten (10) days after demand therefor shall be
an event of default hereunder. The provision for such late charge shall be in
addition to all of the Landlord's other rights and remedies hereunder or at law
and shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No act or thing done by the Landlord or its agents
during the term hereby granted shall be deemed a termination of this lease or
an acceptance of the surrender of the premises, and no agreement to terminate
this lease or accept a surrender of said premises shall be valid unless in
writing signed by Landlord. No waiver by Landlord of any violation or breach of
any of the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of
the terms, provisions and covenants herein contained. Landlord's acceptance of
the payment of rental or other payments hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default or of Landlord's
right to enforce any such remedies with respect to such default or any
subsequent default. If, on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this lease, it shall
become necessary or appropriate for Landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's rights or
remedies hereunder, Tenant agrees to pay any reasonable attorney's fees so
incurred.
19. Landlord's Lien. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the premises, and such property shall
not be removed therefrom without the consent of Landlord until all arrearages in
rent as well as any and all other sums of money then due to Landlord hereunder
shall first have been paid and discharged. In the event of a default under this
lease, Landlord shall have, in addition to any other remedies provided herein
or by law, all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this Paragraph
19 at public or private sale upon five (5) days notice to Tenant. Tenant hereby
agrees to execute such financing statements and other instruments necessary or
desirable to Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
20. Mortgages. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or the improvements situated thereon,
provided, however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this lease shall be deemed superior to such lien, whether
this lease was executed before or after said mortgage or deed of trust. Tenant
shall at any time hereafter on demand execute any instruments, releases or
other documents which may be required by any mortgagee for the purpose of
subjecting and subordinating this lease to the lien of any such mortgage.
21. Landlord's Default. In the event Landlord should become in default in
any payments due on any such mortgage described in Paragraph 20 hereof or in
the payment of taxes or any other items which might become a lien upon the
premises and which Tenant is not obligated to pay under the terms and
provisions of this lease, Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall
4
be payable on demand by Landlord to Tenant; provided, however, that Tenant shall
not be authorized and empowered to make any payment under the terms of this
Paragraph 21 unless the item paid shall be superior to Tenant's interest
hereunder. In the event Tenant pays any mortgage debt in full, in accordance
with this paragraph, it shall, at its election, be entitled to the mortgage
security by assignment or subrogation.
22. MECHANIC'S LIENS. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs, and each such claim shall allect and each such
lien shall attach to, if at all, only the leasehold interest granted to Tenant
by this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the premises or under the terms
of this lease.
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow, set forth or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligation to pay rent and any
other amounts to Landlord under the terms of this lease shall not be deemed
satisfied until such rent and other amounts have been actually received by
Landlord.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified or Registered
Mail, addressed to the parties hereto at the respective addresses set out below,
or at such other address as they have theretofore specified by written notice
delivered in accordance herewith:
LANDLORD: TENANT:
CROW SPARKS ASSOCIATES TWO DAMON DISTRIBUTING CO.
---------------------------- -----------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY ▇▇▇ ▇▇▇▇▇▇ ▇▇▇
---------------------------- -----------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord: if and when included, within the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
24. MISCELLANEOUS.
A. Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord shall
have the right to assign any of its rights and obligations under this lease.
Each party agrees to furnish to the other, promptly upon demand, a corporate
resolution, proof of due authorization by partners, or other appropriate
documentation evidencing the due authorization of such party to enter into this
lease.
C. The captions inserted in this lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this lease, or
any provision hereof, or in any way affect the interpretation of this lease.
D. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this lease and such other
matters pertaining to this lease as may be requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this lease.
E. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair. Tenant shall also, prior to vacating the premises, Tenant shall pay
to Landlord the amount, as estimated by Landlord, of Tenant's obligation
hereunder for real estate taxes and insurance premiums for the year in which the
lease expires or terminates. All such amounts shall be used and held by Landlord
for payment of such obligations of Tenant hereunder, with Tenant being liable
for any additional costs therefor upon demand by Landlord, or with any excess to
be returned to Tenant after all such obligations have been determined and
satisfied, as the case may be. Any security deposit held by Landlord shall be
credited against the amount payable by Tenant under the Paragraph 24(F).
G. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
lease, then and in that event, it is the intention of the parties hereto that
the remainder of this lease shall not be affected thereby, and it is also the
intention of the parties to this lease that in lieu of each clause or provision
of this lease that is illegal, invalid or unenforceable, there be added as a
part of this lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
H. Because the premises are on the open market and are presently being
shown, this lease shall be treated as an offer with the premises being subject
to prior lease and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
I. All references in this lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this lease.
25. ADDITIONAL PROVISIONS.
See Additional Paragraphs 26-28 attached hereto and made a part
hereof.
EXECUTED BY LANDLORD, this 21 day of December, 1982.
CROW SPARKS ASSOCIATES TWO
Attest/Witness ----------------------------------
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Title: Partner
----------------------------------
EXECUTED BY TENANT, this 3rd day of December, 1982.
DAMON DISTRIBUTING CO.
Attest/Witness ----------------------------------
/s/ ▇▇▇▇ ▇▇▇▇ By: [ILLEGIBLE SIGNATURE]
----------------------------------- ----------------------------------
Title: Admin. Assistant Title: President
----------------------------------- ----------------------------------
5
LANDLORD: CROW SPARKS ASSOCIATES TWO
TENANT: DAMON DISTRIBUTING CO.
ADDITIONAL PROVISIONS:
Paragraph 26. Rental
The monthly rental for this facility shall be as follows:
Months 1 - 30 $3,888.00 per month
Months 31 - 60 $3,888.00 + CPI per month
Rental in months 31 - 60 shall be the base rental of $3,888.00 per month,
adjusted by any increase in the Consumer Price Index, as determined by the
U.S. Bureau of Labor Statistics for U.S. City Average for all Urban
Consumers over the first thirty (30) months of the lease. In no event will
the monthly rental be less than $3,888.00.
Paragraph 27. Financial Statements
If Tenant is, or ever has been, in default of any terms or conditions of this
Lease Agreement, Tenant agrees to provide Landlord during this lease term, or
any extension thereof, upon written request, the most current set of financial
statements for Damon Distributing Co.
Paragraph 28. Renewal Option
Tenant shall have the right to renew for an additional five year period with
the initial renewal rental to be the rental during the previous two years
adjusted by any increase in the Consumer Price Index, as determined by the U.S.
Bureau of Labor Statistics for U.S. City Average for all Urban Consumers over
the previous two year term. In any event, monthly rental will be no less than
rental for the previous two year term. Rental payments for months 31 - 60 of
the renewal period will be adjusted in the same manner as months 31 - 60 of the
initial term. Tenant shall give written notice to exercise said option six
months prior to the expiration of this lease term and shall not be in default
of any terms or conditions of this lease.
6
EXHIBIT "A"
LANDLORD: CROW SPARKS ASSOCIATES TWO
TENANT: DAMON DISTRIBUTING CO.
LEGAL DESCRIPTION
21,600 square feet, more or less, of office and warehouse space as outlined in
red on the attached site plan. The premises described are commonly known and
designated as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ "▇", ▇▇▇▇ ▇▇▇▇▇▇▇▇ Business Center,
Sparks, Nevada.
7
ATTACHMENT TO EXHIBIT "A"
[SITE MAP]
8
EXHIBIT "B"
LANDLORD: CROW SPARKS ASSOCIATES TWO
TENANT: DAMON DISTRIBUTING CO.
SPECIFICATIONS
INTERIOR IMPROVEMENTS: Landlord will construct at its own expense approximately
700 square feet of office area. This area will include three private offices, a
storage room, a reception area and two restrooms.
The office area would have the following finishes:
-- heating, ventilation and air conditioning throughout
-- acoustical tile ceiling
-- fire sprinklers
-- recessed fluorescent lighting (standard office footcandle)
-- painted walls (insulation in all perimeter and restroom walls)
-- carpeted offices
-- vinyl asbestos tile in all other areas, color selection by Tenant
-- convenient electrical and telephone outlets
-- 3' x 7' solid core wood doors and metal door frames
-- electrical service, 200 amps of 120/208 volt power
-- separate gas and electric meters
-- sheet vinyl in restrooms
-- restrooms to contain:
men one sink, one water closet
women one sink, one water closet
In addition, Landlord will construct, at its own expense, a room of
approximately 1,200 square feet. This room will have the following finishes:
-- 10 foot ceiling height
-- sheetrock walls and ceilings
-- surface mounted fluorescent lights
-- all walls painted (one coat semi-gloss paint)
-- electrical power to the facility
-- sealed concrete floor with two floor drains (as shown on the enclosed
floor plan)
-- hot and cold running water to be provided in four locations as shown on
the attached floor plan)
-- Tenant agrees to construct at its own expense, a sloped concrete floor
within this room
-- Tenant agrees to install in this room all electrical and plumbing
connections necessary to its bottling operation.
The warehouse will have the following finishes:
-- sealed concrete floor
-- continuous strip fluorescent lights
-- gas space heating
-- full height sheetrock demising walls.
9
EXTENSION AGREEMENT to be attached to and form a part of Lease (which together
with any amendments, modifications and extensions hereto are hereinafter called
the Lease), made the 21st day of December, 1982
Between Crow Sparks Associates Two as Lessor
and Damon Distributing Co., a Nevada Corporation
as Lessee
covering the premises known as:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
WITNESSETH that the Lease is hereby renewed and extended for a further term of
Sixty (60) months to commence on the First day of February, 1988 and to end on
the Thirty-first day of January, 1993, on condition that Lessor and Lessee
comply with all the provisions of the covenants and agreements contained in
the lease, except:
1) Monthly rental shall be $5,184.00 inclusive of Tenant's share of any and
all (a) taxes, assessments, levies, charges, or similar items, (b)
insurance, and (c) common area maintenance, referred to in the Lease.
2) Month one (1) of the renewal term shall be free of rent.
3) Crow Sparks Associates Two will return to Damon Distributing Company the
Security Deposit in the amount of $3,888.00 upon commencement of the
renewal term.
4) Landlord will at his sole cost and expense, construct improvements to the
Premises at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ per the quote given by ▇▇▇▇▇▇▇
Construction Company on September 2, 1987. (Attached as Exhibit "B"
hereto).
================================================================================
IN WITNESS WHEREOF, the parties hereto have signed and sealed this extension
agreement this 20th day of November, 1987.
---- --------
WITNESS: Crow Sparks Associates Two
------------------------------
LESSOR
[ILLEGIBLE SIGNATURE] By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ------------------------------
AGENT
ATTEST: DAMON DISTRIBUTING COMPANY
------------------------------
LESSEE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By [ILLEGIBLE SIGNATURE]
----------------------------- ------------------------------
TITLE
10
EXHIBIT "B"
LANDLORD: Crow Sparks Associates Two
TENANT: Damon Distributing Co.
SPECIFICATIONS
Landlord will at his sole cost and expense, construct improvements to the
Premises at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ as follows:
-- Upgrade Heating System $ 1,785.00
-- R-11 Ceiling Insulation 449.00
-- Replace carpet and base 645.00
-- Insulate 96 square feet (blown insulation) 260.00
-- paint interior offices 806.00
-- Ceramic tile floor (bottling room) 4,000.00
-- Add two (2) new offices 6,480.00
-- Labor 672.00
----------
Sub total 15,097.00
Profit & Overhead 1,509.70
----------
TOTAL $16,606.70
11
EXTENSION AGREEMENT
EXTENSION AGREEMENT to be attached to and form a part of the Lease (which
together with any amendments, modifications and extensions hereto are
hereinafter called the Lease), made the 21st day of December, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ II, Limited Partnership As Lessor
(Formerly known as Crow Sparks Associates Two)
And Damon Distributing Co., a Nevada Corporation As Lessee
covering the premises known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇. WITNESSETH that
the Lease is hereby renewed and extended for a further term of thirty six (36)
months to commence on the first day of February, 1993, and to end on the
thirty-first day of January, 1996.
Lessor and Lessee comply with all the provisions of the covenants and
agreements contained in the Lease.
Commencing June 1, 1990, Monthly rental for the premises shall be FIVE THOUSAND
FIVE HUNDRED AND EIGHT DOLLARS ($5,508.00) inclusive of Tenant's share of any
and all (a) taxes, assessments, levies, charges, or similar items, (b)
insurance, and (c) common area maintenance, referred to in the Lease.
Landlord at its sole cost and expense, agrees to construct a new bottling room
and floor on the Premises at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ per the attached
drawing (Exhibit A) and specifications (Exhibit B).
IN WITNESS WHEREOF, the parties hereto have signed and sealed this extension
agreement this 11th day of April, 1990.
AGREED AND ACCEPTED:
[ILLEGIBLE SIGNATURE] [ILLEGIBLE SIGNATURE]
---------------------------------- --------------------------------
Damon Distributing Company Packer Way II, Limited Partnership
President Agent
---------------------------------- --------------------------------
Title Title
12
EXTENSION AGREEMENT to be attached to and form a part of Lease (which together
with any amendments, modifications and extensions hereto are hereinafter called
the Lease), made the 21st day of December, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ II Limited Partnership, as Lessor
And Damon Industries, a Nevada Corporation, (Formerly Damon
Distributing Company) as Lessee
covering the premises known as: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
WITNESSETH that the Lease is hereby renewed and extended for a further term of
thirty-six (36) months to commence on the 1st day of February, 1996, and to end
on the 31st day of January, 1999, on condition that Lessor and Lessee comply
with all the provisions of the covenants and agreements contained in the Lease
except that:
Monthly Rental for the Premises shall be as follows:
February 1, 1996 -- January 31, 1999 -- $6,480.00 per month
($.30 SF/month) inclusive of Lessee's share of any and all (a)
taxes, assessments, levies, charges, or similar items, (b)
insurance, and (c) common area maintenance, referred to in
the Lease.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Extension Agreement this 25th day of January, 1993.
---- -------
AGREED AND ACCEPTED:
[ILLEGIBLE SIGNATURE] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- --------------------------
PACKER WAY II LIMITED PARTNERSHIP DAMON INDUSTRIES,
A NEVADA CORPORATION
Agent PRESIDENT
---------------------------------- --------------------------
TITLE TITLE
1-25-93 1/22/93
---------------------------------- --------------------------
DATE DATE
13
FOURTH EXTENSION AGREEMENT TO LEASE AGREEMENT
THIS FOURTH EXTENSION TO LEASE AGREEMENT is entered into as of the 11th
day of July, 1997 by and between SECURITY CAPITAL INDUSTRIAL TRUST (the
"Landlord") and DAMON INDUSTRIES (the "Tenant").
W I T N E S S E T H:
-----------------------
WHEREAS, Landlord (or its predecessor-in-interest) and Tenant have entered
into a Lease, dated as of the 21st day of December, 1982, as amended by those
certain Extension Agreements, dated the 20th day of November, 1987, 10th day of
April, 1990, and 25th day of January 1993, respectively, pursuant to which
Landlord leased to Tenant certain premises located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ (such lease, as heretofore and hereafter modified, being herein referred
to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth below.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant agree as follows:
1. The term of the Lease is extended for thirty-six (36) months, commencing on
February 1, 1999 and continuing through and including January 31, 2002 (the
"Extension Period").
2. Monthly Base Rent during the Extension Period shall be Six Thousand Two
Hundred Sixty-four and no/100 ($6,264.00) per month ($.29 per square foot per
month Triple Net).
3. The estimated monthly Basic Operating Costs for the Extension Period will be
determined based on the 1999 Estimated Operating Expenses, prepared by
Landlord, or its agents.
4. For purposes of calculating the Basic Operating Cost of the Premises,
Tenant's Proportionate Share for the Premises shall be 50% for the Building,
and 20.79% for the Project.
5. Tenant will take the Premises in its "as-is" condition.
6. Landlord and Tenant hereby acknowledge and agree that upon full execution of
this Fourth Amendment, the Lease Guarantee provided by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ for the
Lease dated the 21st day of December, 1982, shall no longer be in effect and
shall thereby be deemed null and void.
7. Any obligation or liability whatsoever of Security Capital Industrial Trust,
a Maryland real estate investment trust, which may arise at any time under the
Lease or this Agreement or any obligation or liability which may be incurred by
it pursuant to any other instrument, transaction of undertaking contemplated
hereby, shall not be personally binding upon, nor shall resort for the
enforcement thereof be had to the property of, its trustees, directors,
shareholders, officers, employees, or agents regardless of whether such
obligation or liability is in the nature of contract, tort or otherwise.
8. Except as otherwise specifically modified herein, all defined terms used in
this Fourth Extension Agreement shall have the same respective meanings as
provided for such defined terms in the Lease.
9. Except as herein amended, the terms and conditions of the Lease and any
amendments thereto, shall continue in full force and effect and the Lease (and
any amendments thereto) as amended herein is hereby ratified and affirmed by
Landlord and Tenant. Exhibit A attached to this Fourth Extension Agreement is
made a part hereof for all purposes.
10. This Fourth Extension Agreement shall be construed under and enforceable in
accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have signed this Fourth Extension
Agreement to Lease Agreement in multiple counterparts, each of which shall have
the force and effect of an original.
DAMON INDUSTRIES SECURITY CAPITAL INDUSTRIAL TRUST
a Nevada corporation a Maryland real estate investment trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -----------------------------------
Title: President Title: Senior Vice President
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14
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT is entered into as of the 21st day
of September, 2000 by and between PROLOGIS TRUST, formerly known as SECURITY
CAPITAL INDUSTRIAL TRUST, (the "Landlord") and DAMON INDUSTRIES (the "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord (or its predecessor-in-interest) and Tenant have entered
into a Lease, dated as of the 21st day of December, 1982, as amended by those
certain Extension Agreements dated the 20th day of November, 1987, the 10th day
of April, 1990, the 25th day of January 1993 and the 11th day of July 1997,
respectively, pursuant to which Landlord leased to Tenant certain premises
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ (such lease, as heretofore and
hereafter modified, being herein referred to as the "Lease").
WHEREAS, Landlord and Tenant desire to extend the Lease on the terms and
conditions set forth below:
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant agree as follows:
1. The Lease is hereby amended by expanding the leased premises by
approximately 7,200 square feet ("Expansion Premises") more commonly known as
▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇.
2. The term for the Expansion Premises will commence on August 1, 2000
and continuing through and terminating on January 31, 2002.
3. Effective on the Expansion Premises Commencement Date, the Monthly
Base Rent for the Expansion Premises shall reflect the following:
August 1, 2000 -- January 31, 2002 $2,376.00/mo. ($0.33 s.f./mo.NNN)
4. Effective on the Expansion Premises Commencement Date, the estimated
monthly Basic Operating Costs for the Expansion Premises shall be the following:
Property Taxes $24.00
Insurance $18.00
CAM $192.00
Management Fees $76.00
-------
$310.00
5. For purposes of calculating the Basic Operating Cost of the Premises,
effective on the Expansion Premises Commencement Date, Tenant's Proportionate
Share for the Building shall be revised to reflect 100% and Tenant's
Proportionate Share for the Project shall be revised to reflect 41.57%.
6. Landlord agrees to furnish or perform at Landlord's sole cost and
expense those items of construction and those improvements to the Expansion
Premises (the "Tenant Improvements") specified below and Landlord shall be
under no further obligation to perform any other improvements to the Premises
or the Expansion Premises.
Landlord, at Landlord's expense, shall paint the offices, shampoo the
carpets, and shall provide an approximately 12' x 14' opening in the
demising wall separating the Premises and the Expansion Premises.
(Size to be mutually agreed upon.)
7. Any obligation or liability whatsoever of ProLogis Trust, a Maryland
real estate investment trust, which may arise at any time under the Lease or
this Amendment or any obligation or liability which may be incurred by it
pursuant to any other instrument, transaction or undertaking contemplated
hereby, shall not be personally binding upon, nor shall resort for the
enforcement thereof be had to the property of its trustees, directors,
shareholders, officers, employees, or agents regardless of whether such
obligation or liability is in the nature of contract, tort or otherwise.
8. Insofar as the specific terms and provisions of this Amendment
purport to amend or modify or are in conflict with the specific terms,
provisions and exhibits of the Lease, the terms and provisions of this
Amendment shall govern and control; in all other respects, the terms,
provisions and exhibits of the Lease shall remain unmodified and in full force
and effect.
9. Landlord and Tenant hereby agree that (a) this Amendment is
incorporated into and made a part of the Lease, (b) any and all references to
the Lease hereinafter shall include this Amendment, and (c) the Lease and all
terms, conditions and provisions of the Lease are in full force and effect as
of the date hereof, except as expressly modified and amended hereinabove.
10. Tenant represents and warrants that it has not dealt with any broker,
agent or other person in connection with this transaction and that no broker,
agent or other person brought about the transaction, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any broker,
agent or other person claiming a commission or other form of compensation by
virtue of having dealt with Tenant with regard to this transaction.
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15
IN WITNESS WHEREOF, the parties hereto have signed this Fourth Amendment
to Lease as of the day and year first above written.
DAMON INDUSTRIES PROLOGIS TRUST
a Maryland Real Estate Investment Trust
By: [signature illegible] By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ -----------------------------
Name: Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Title: Managing Director
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(Tenant) (Landlord)
2
