EXHIBIT 10.63
INDUSTRIAL LEASE
-XXX-XXX-XXX-
0. PARTIES. This Lease, dated, for reference purposes only, May 1, 2003, is
made by and between XXXXXX X. and/or XXXXX X. XXXXXXXX(herein
called"Landlord")and ROCKFORD CORPORATION INC an Arizona Corporation (herein
called "Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases from Landlord
for the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the City of Tempe , County of Maricopa ,
State of Arizona, commonly known as 000 X. Xxxxxxxx Xx. and described as
approx. 30,000 sq. ft. industrial building on approx. 2.1312 acres per the legal
description attached hereto and made a part hereof as EXHIBIT "A". THIS LEASE
IS SUBJECT TO THE EXISTING MASTER LESSEE (Xxxxxx and Xxxxx) NOT EXERCISING THEIR
OPTION TO EXTEND THEIR MASTER LEASE. Said real property, including the land and
all improvements thereon, is herein called "the Premises".
3. TERM.
3.1 Term. The term of this Lease shall be for 60 Months commencing on
OCTOBER 1 , 2004 and ending on SEPTEMBER 30,2009 unless sooner terminated
pursuant to any provision hereof.
3.2 Deleted
3.3 Deleted
3.4 Delivery of Possession. Tenant shall be deemed to be in possession
of the premises.
4. RENT.
4.1 Tenant shall pay to Landlord as rent for the Premises equal monthly
installments of See paragraph 21 hereinbelow for Rent Schedule ($_____) Dollars,
in advance, on the first day of each month of the term hereof. Tenant shall pay
Landlord upon the beginning of this lease the sum of Twenty three thousand two
hundred dollars ($ 23,200.00 )Dollars as rent for first month of this lease.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable
without notice or demand and without any deduction, offset, or abatement in
lawful money of the United States of America to Landlord at the address stated
herein or to such other persons or at such other places as Landlord may
designate in writing.
4.2 Additional Charges. This Lease is what is commonly called a "net
lease", it being understood that Landlord shall receive the rent set forth in
Article 4.1 free and clear of any and all impositions, taxes, real estate taxes,
liens, charges or expenses of any nature whatsoever in connection with the
ownership and operation of the Premises. In addition to the rent reserved by
Article 4.1. Tenant shall pay to the parties respectively entitled thereto all
impositions, insurance premiums, operating charges, maintenance charges,
construction costs, and any other charges, costs and expenses which arise or may
be contemplated under any provisions of this Lease during the term hereof. All
of such charges, costs and expenses shall constitute additional charges, and
upon the failure of Tenant to pay any of such costs, charges or expenses.
Landlord shall have the same rights and remedies as otherwise provided in this
Lease for the failure of Tenant to pay rent. It is the intention of the parties
hereto that this Lease shall not be terminable for any reason by the Tenant and
that the Tenant shall in no event be entitled to any abatement of or reduction
in rent payable hereunder, except as herein expressly provided. Any present or
future law to the contrary shall not alter this agreement of the parties.
5. SECURITY DEPOSIT. Tenant shall deposit with landlord upon commencement
hereof the sum of Twenty three thousand ($23,000.00) Dollars as security for
Tenant's faithful performance of Tenant's obligations hereunder. If Tenant fails
to pay rent or other charges due hereunder, or otherwise defaults with respect
to any provision of this Lease, Landlord 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 to which Landlord may become obligated by
reason of Tenant's default, or to compensate Landlord for any loss or damage
which Landlord may suffer thereby. If Landlord so uses or applies all or any
portion of said deposit, Tenant shall within ten (10) days after written demand
therefor deposit cash with Landlord in an amount sufficient to restore said
deposit to the full amount hereinabove stated and Tenant's failure to do so
shall be a breach of this Lease, and Landlord may at his option terminate this
Lease. Landlord shall not be required to keep said deposit separate from its
general accounts. If Tenant performs all of Tenant's obligations hereunder, said
deposit or so much thereof as had not theretofore been applied by Landlord,
shall be returned, without payment of interest or other increment for its use,
to Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) within fifteen (15) days after the expiration of the term
hereof, or after Tenant has vacated the Premises, whichever is later.
6. USE.
6.1 Use. The Premises shall be used and occupied only for General
Office, manufacturing and assembly.
6.2 Compliance with Law. Tenant shall, at Tenant's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Tenant of the Premises. Tenant shall not use or permit the
use of the Premises in any manner that will tend to create waste or a nuisance,
or, if there shall be more than one tenant of the building con-
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taining the Premises, which shall tend to unreasonably disturb such other
tenants.
6.3 CONDITION OF PREMISES. Tenant hereby accepts the Premises in their
condition existing as of the date of the possession hereunder, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Tenant acknowledges that neither Landlord nor Tenant's agent has made
any representation or warranty as to the suitability of the Premises for the
conduct of Tenant's business.
6.4 INSURANCE CANCELLATION. Notwithstanding the provisions of Article
6.1 hereinabove, no use shall be made or permitted to be made of the Premises
nor acts done which will cause the cancellation of any insurance policy covering
said Premises or any building of which the Premises may be a part, and if
Tenant's use of the Premises causes an Increase in said insurance rates Tenant
shall pay any such increase.
6.5 LANDLORD'S RULES AND REGULATIONS. Tenant shall faithfully observe
and comply with the rules and regulations that Landlord shall from time to time
promulgate. A copy of said rules and regulations is attached hereto. Landlord
reserves the right from time to time to make all reasonable modifications to
said rules and regulations. The additions and modifications to those rules and
regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible to Tenant for the nonperformance of
any of said rules and regulations by any other tenants or occupants.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 TENANT'S OBLIGATIONS. Tenant shall, during the term of this Lease,
keep in good order, condition and repair, the Premises and every part thereof,
structural or non-structural, and all adjacent sidewalks, landscaping,
driveways, parking lots, fences and signs located in the areas which are
adjacent to and included with the Premises. Landlord shall incur no expense nor
have any obligation of any kind whatsoever in connection with maintenance of the
Premises, and Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
7.2 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in good condition,
broom clean, ordinary wear and tear excepted. Tenant shall repair any damage to
the Premises occasioned by its use thereof, or by the removal of Tenant's trade
fixtures, furnishings and equipment pursuant to Article 7.4(c), which repair
shall include the patching and filling of holes and repair of structural damage.
7.3 LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's obligations
under this Article 7, Landlord may at its option (but shall not be required to)
enter upon the Premises, after ten (10) days' prior written notice to Tenant,
and put the same in good order, condition and repair, and the cost thereof
together with interest thereon at the rate of ten (10%) percent per annum shall
become due and payable as additional rental to Landlord together with Tenant's
next rental installment.
7.4 ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without Landlord's prior written consent, make
any alterations, improvements, or additions, in, on or about the Premises,
except for non-structural alterations not exceeding $1,000 in cost. As a
condition to giving such consent, Landlord may require that Tenant remove any
such alterations, improvements additions or utility installations at the
expiration of the term, and to restore the Premises to their prior condition.
(b) Before commencing any work relating to alterations, additions
and improvements affecting the Premises, Tenant shall notify Landlord in writing
of the expected date of commencement thereof. Landlord shall then have the
right at any time and from time to time to post and maintain on the Premises
such notices as Landlord reasonably deems necessary to protect the Premises and
Landlord from mechanics' liens, materialmen's liens or any other liens. In any
event, Tenant shall pay, when due, all claims for labor or materials furnished
to or for Tenant at or for use in the Premises. Tenant shall not permit any
mechanics' or materialmen's liens to be levied against the Premises for any
labor or material furnished to Tenant or claimed to have been furnished to
Tenant or to Tenant's agents or contractors in connection with work of any
character performed or claimed to have been performed on the Premises by or at
the direction of Tenant.
(c) Unless Landlord requires their removal, as set forth in Article
7.4 (a), all alterations, improvements or additions which may be made on the
Premises, shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding
the provisions of this Article 7.4(c), Tenant's machinery, equipment and other
trade fixtures other than that which is affixed to the Premises so that it
cannot be removed without material damage to the Premises, shall remain the
property of Tenant and may be removed by Tenant subject to the provisions of
Article 7.2.
8. INSURANCE; INDEMNITY.
8.1 INSURING PARTY. As used in this Article 8, the term "insuring party"
shall mean the party who has the obligation to obtain the insurance required
hereunder. The insuring party in this case shall be designated in Article 20.
Whether the insuring party is the Landlord or the Tenant, Tenant shall, as
additional rent for the Premises, pay the cost of all insurance
required hereunder. If Landlord is the insuring party Tenant shall, within ten
(10) days following demand by Landlord, reimburse Landlord for the cost of
the insurance so obtained.
8.2 LIABILITY INSURANCE. The Tenant shall obtain and keep in force
during the term of this Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in an amount of not less than
$1,000,000 for injury to or death of one person in any one accident or occur-
rence and in an amount of not less than $1,000,000 for injury to or death of
more than one person in any one accident or occurrence. Such insurance shall
further insure Landlord and Tenant against liability for property damage of at
least $100,000. The limits of said insurance shall not, however, limit the
liability of Tenant hereunder. In the event that the Premises constitute a part
of a larger property said insurance shall have a Landlord's Protective Liability
endorsement attached thereto. If the Tenant shall fail to procure and maintain
said insurance the Landlord may, but shall not be required to, procure and
maintain the same, but at the expense of Tenant.
8.3 PROPERTY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the Premises, in the amount of the full replacement value
thereof, providing protection against all perils included within the classifica-
tion of fire, extended coverage, vandalism, malicious mischief, special extended
perils (all risk) and sprinkler leakage. Said insurance shall provide for pay-
ment for loss thereunder to Landlord or to the holder of a first mortgage or
deed of trust on the Premises. If the insuring party shall fail to procure and
maintain said insurance the other party may, but shall not be required to,
procure and maintain the same, but at the expense of Tenant.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated A+ AAA or better in "Best's Insurance Guide". The insuring party
shall deliver prior to possession to the other party copies of policies of such
insurance or certificates evidencing the existence and amounts of such insurance
with loss payable clauses satisfactory to Landlord. No such policy shall be
cancellable or subject to reduction of coverage or other modification except
after ten (10) days' prior written notice to Landlord. If Tenant is the insuring
party, Tenant shall, within ten (10) days prior to the expiration of such
policies, furnish Landlord with renewals or "binders" thereof, or Landlord may
order such insurance and charge the cost thereof to Tenant, which amount shall
be payable by Tenant upon demand. Tenant shall not do or permit to be done
anything which shall invalidate the insurance policies referred to in Article
8.3. Tenant shall forthwith, upon Landlord's demand, reimburse Landlord for any
additional premiums attributable to any act or omission or operation of Tenant
causing such increase in the cost of insurance. If Landlord is the insuring
party, and if the insurance policies maintained hereunder cover other
improvements in addition to the Premises, Landlord shall deliver to Tenant a
written statement setting forth the amount of any such insurance cost increase
and showing in reasonable detail the manner in which it has been computed.
8.5 WAIVER OF SUBROGATION. Tenant and Landlord each waives any and all
rights of recovery against the other, or against the officers, employees, agents
and representatives of the other, for loss of or damage to such waiving party or
its property or the property of others under its control, where such loss or
damage is insured against under any insurance policy in force at the time of
such loss or damage. Tenant and Landlord shall, upon obtaining the policies of
insurance required hereunder, give notice to the insurance carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
8.6 HOLD HARMLESS. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of the Premises or
from the conduct of its business or from any activity, work or things which may
be permitted or suffered by Tenant in or about the Premises and shall further
indemnify, defend and hold Landlord harmless from and against any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the provision of this Lease or arising from
any negligence of Tenant or any of its agents, contractors, employees or
invitees and from any and all costs, attorneys' fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon. Tenant hereby assumes all risk of damage to property or injury to
persons in or about the Premises from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, excepting where said damage arises
out of negligence of Landlord.
8.7 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other person
in or about the Premises; nor, unless through its negligence, shall Landlord be
liable for injury to the person of Tenant, Tenant's employees, agents or
contractors and invitees, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
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leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether the said 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 cause of
such damage or injury or the means of repairing the same is inaccessible to
Landlord or Tenant. Landlord shall not be liable for any damages arising from
any act or neglect of any other tenant, if any, of the building in which the
Premises are located.
9. DAMAGE OR DESTRUCTION
9.1 In the event the improvements on the Premises are damaged or
destroyed, partially or totally, from any cause whatsoever, whether or not such
damage or destruction is covered by any insurance required to be maintained
under Article 8, the Tenant shall repair, restore, and rebuild the Premises to
their condition existing immediately prior to such damage or destruction and
this Lease shall continue in full force and effect. Such repair, restoration and
rebuilding (all of which an herein called the "repair") shall be commenced
within a reasonable time after such damage or destruction and shall be
diligently prosecuted to completion. There shall be no abatement of rent or of
any other obligation of Tenant hereunder by reason of such damage or
destruction. The proceeds of any insurance maintained under Article 8.3 shall be
made available to Tenant for payment of the cost and expanse of the repair,
provided, however, that such proceeds may be made available to Tenant subject to
reasonable conditions including, but not limited to, architect's certification
of costs and retention of a percentage of such proceeds pending final notice of
completion. In the event that such proceeds are not made available to Tenant
within ninety (90) days after such damage or destruction, Tenant shall have the
option for thirty (30) days, commencing on the expiration of such ninety (90)
day period of cancelling this Lease. If Tenant shall exercise such option,
Tenant shall have no further obligation hereunder and shall have no further
claim against Landlord; provided, however, that Landlord shall return to Tenant
so much of Tenant's security deposit as has not theretofore been applied by
Landlord. Tenant shall exercise such option by written notice to Landlord within
said thirty (30) day period. In the event that the insurance proceeds are
insufficient to cover the cost of the repair, then any amount in excess thereof
required to complete the repair shall be paid by Tenant.
9.2 DAMAGE NEAR END OF TERM. If the Premises are partially destroyed or
damaged during the last six (6) months of the term of this Lease, Landlord may,
at Landlord's option, cancel and terminate this Lease as of the date of
occurrence of such damage by giving written notice to Tenant of Landlord's
election to do so within thirty (30) days after the date of occurrence of such
damage.
9.3 PRORATIONS. Upon termination of this Lease pursuant to this Article
9, a pro rata adjustment of rent based upon a thirty (30) day month shall be
made. Landlord shall, in addition, return to Tenant so much of Tenant's security
deposit as has not theretofore been applied by Landlord.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Tenant shall pay all real property taxes
applicable to the Premises during the term of this Lease. All such payments
shall be made at least ten (10) days prior to the delinquency date of such
payment. Tenant shall promptly furnish Landlord with satisfactory evidence that
such taxes have been paid. If any such taxes paid by Tenant shall cover any
period of the time prior to or after the expiration of the term hereof, Tenant's
share of such taxes shall be equitably prorated to cover only the period of time
within the tax fiscal year during which this Lease shall be in effect, and
Landlord shall reimburse Tenant to the extent required. If Tenant shall fail to
pay any such taxes, Landlord shall have the right to pay the same, in which case
Tenant shall repay such amount to Landlord with Tenant's next rent installment
together with interest at the rate of ten (10%) percent per annum.
10.2 DEFINITION OF "REAL PROPERTY" TAXES. As used herein, the term "real
property tax" shall include any form of assessment, license fee, rent tax, levy,
penalty, or tax (other than inheritance or estate taxes), imposed by any
authority having the direct or indirect power to tax, including any city,
county, state or federal government, or any school, agricultural, lighting,
drainage or other improvement district thereof, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, as against Landlord's right to rent or other income
therefrom, or as against Landlord's business of leasing the Premises, and,
Tenant shall pay any and all charges and fees which may be imposed by the EPA or
other similar government regulations or authorities.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Tenant's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Landlord from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Landlord's reasonable determination thereof, in good
faith, shall be conclusive.
10.4 PERSONAL PROPERTY TAXES.
(a) Tenant shall pay prior to delinquency all taxes assessed against
and levied upon leasehold improvements, trade fixtures, furnishings, equipment
and all other personal property of Tenant contained in the Premises or
elsewhere. Tenant shall cause said leasehold improvements, trade fixtures,
furnishings, equipment and all other personal property to be assessed and billed
separately from the real property of Landlord.
(b) If any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord the taxes attributable to
Tenant within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Tenant's property.
11. COMMON AREAS. When, in fact, there are Common Areas, then the following
shall apply:
11.1 DEFINITIONS. The phrase "Common Areas" means all areas and
facilities outside the Premises that are provided and designated for general use
and convenience of Tenant and other tenants and their respective officers,
agents and employees, customers, and invitees. Common Areas include (but are not
limited to) pedestrian sidewalks, landscaped areas, roadways, parking areas and
railroad tracks, if any. Landlord reserves the right from time to time to make
changes in the shape, size, location, number, and extent of the land and
improvements constituting the Common Areas. Landlord may designate from time to
time additional parcels of land for use as a part thereof; and any additional
land so designated by Landlord for such use shall be included until such
designation is revoked by Landlord.
11.2 MAINTENANCE. During the term of this Lease, Landlord shall operate,
manage, and maintain the Common Areas so that they are clean and free from
accumulations of debris, filth, rubbish, and garbage. The manner in which such
Common Areas shall be so maintained, and the expenditures for such maintenance,
shall be at the sole discretion of Landlord, and the use of the Common Areas
shall be subject to such reasonable regulations and changes therein as Landlord
shall make from time to time, including (but not by way of limitation) the right
to close from time to time, if necessary, all or any portion of the Common Areas
to such extent as may be legally sufficient, in the opinion of Landlord's
counsel, to prevent a dedication thereof or the accrual of rights of any person
or of the public therein, or to close temporarily all or any portion of such
Common Areas for such purposes.
11.3 TENANT'S RIGHTS AND OBLIGATIONS. Landlord hereby grants to Tenant,
during the term of this Lease, the license to use, for the benefit of Tenant and
its officers, agents, employees, customers, and invitees, in common with the
others entitled to such use, the Common Areas as they from time to time exist,
subject to the rights, powers, and privileges herein reserved to Landlord.
Storage, either permanent or temporary, of any materials, supplies or equipment
in the Common Area is strictly prohibited. Should Tenant violate this provision
of the Lease, then in such event, Landlord may, at his option either terminate
this Lease or, without notice to Tenant, remove said materials, supplies or
equipment from the Common Area and place such items in storage, the cost thereof
to be reimbursed by Tenant within ten (10) days from receipt of a statement
submitted by Landlord. All subsequent costs in connection with the storage of
said items shall be paid to Landlord by Tenant as accrued. Failure of Tenant to
pay these charges within ten (10) days from receipt of statement shall
constitute a breach of this Lease. Tenant and its officers, agents, employees,
customers and invitees shall park their motor vehicles only in areas designated
by Landlord for that purpose from time to time. Within five (5) days after
request from Landlord, Tenant shall furnish to Landlord a list of the license
numbers assigned to its motor vehicles, and those of its officers, agents and
employees. Tenant shall not at any time park or permit the parking of motor
vehicles, belonging to it or to others, so as to interfere with the pedestrian
sidewalks, roadways, and loading areas, or in any portion of the parking areas
not designed by Landlord for such use by Tenant. Tenant agrees that receiving
and shipping of goods and merchandise and all removal of refuse shall be made
only by way of the loading areas constituting part of the Premises. Tenant shall
repair, at its cost, all deteriorations or damages to the Common Areas,
occasioned by its lack of ordinary care.
11.4 CONSTRUCTION. Landlord, while engaged in constructing improvements
or making repairs or alterations in or about the Premises or in their vicinity,
shall have the right to meke reasonable use of the Common Areas.
12. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Tenant, Tenant shall pay a reasonable proportion to be determined by Landlord of
all charges jointly metered with other premises.
13. ASSIGNMENT AND SUBLETTING.
13.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent, which Landlord shall not reasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance, or
subletting without such consent shall be void and shall constitute a breach of
the Lease. Any transfer of Tenant's interest in this Lease or in the Premises
from Tenant by merger, consolidation, or liquidation,
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or by any subsequent change in the ownership of thirty (30%) percent or more of
the capital stock of Tenant shall be deemed a prohibited assignment within the
meaning of this Article 13.
13.2 NO RELEASE OF TENANT. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant of Tenant's obligation to pay the
rent and to perform all other obligations to be performed by Tenant hereunder
for the term of this Lease. The acceptance of rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting.
14. DEFAULTS; REMEDIES.
14.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant, other than described in Paragraph (b) above, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more then thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commenced such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(d) (i) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; (ii) the filing by or against Tenant
of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Tenant, the same is dismissed within sixty
(60) days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
14.2 REMEDIES IN DEFAULT. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default or breach:
(a)Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant'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 attorney's fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Tenant proves could be reasonably avoided;
and that portion of the leasing commission paid by Landlord applicable to the
unexpired term of this Lease. Unpaid installments of rent or other sums shall
bear interest from the date due at the rate of ten (10%) percent per annum. In
the event Tenant shall have abandoned the Premises, Landlord shall have the
option of (i) retaking possession of the Premises and recovering from Tenant the
amount specified in this Article 14.2(a), or (ii) proceeding under Article
14.2(b).
(b)Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event. Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c)Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the State in which the Premises are
located.
14.3 DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later then thirty (30) days after written notice by Tenant
to Landlord and to the holder of any first mortgage or deed of trust covering
the Premises whose name and address shall have theretofore been furnished to
Tenant in writing, specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for performance then Landlord
shall not be in default if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion.
14.4 LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord 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 imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
written notice that said amount is past due, then Tenant shall pay to Landlord a
late charge equal to ten (10%) percent of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the cost Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
15. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold by Landlord under the threat of the exercise of
said power (all of which is herein referred to as "condemnation"), this Lease
shall terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever occurs first. If more than twenty-five
(25%) percent of the floor area of any buildings on the premises, or more than
twenty-five (25%) percent of the land area of the Premises not covered with
buildings is taken by condemnation, either Landlord or Tenant may terminate
this Lease as of the date the condemning authority takes possession by notice in
writing of such election within twenty (20) days after Landlord shall have
notified Tenant of the taking or, in the absence of such notice, then within
twenty (20) days after the condemning authority shall have taken possession.
If this Lease is not terminated by either Landlord or Tenant then it shall
remain in full force and effect as to the portion of the Premises remaining,
provided the rental shall be reduced in proportion to the floor area of the
buildings taken within the Premises as bears to the total floor area of all
buildings located on the Premises. In the event this Lease is not so terminated
then Landlord agrees, at Landlord's sole cost, to as soon as reasonably possible
restore the Premises to a complete unit of like quality and character as existed
prior to the condemnation. All awards for the taking of any part of the Premises
or any payment made under the threat of the exercise of power of eminent domain
shall be the property of Landlord, whether made as compensation for diminution
of value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Tenant shall be entitled to any award for loss of or
damage to Tenant's trade fixtures and removable personal property.
16. GENERAL PROVISIONS.
16.1 OFFSET STATEMENT.
(a) Tenant shall at any time upon not less than ten (10) days' prior
written notice from Landlord execute, acknowledge and deliver to Landlord 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
date to which the rent, security deposit, and other charges are paid in advance,
if any, and (ii) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such
defaults, if any, which are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
(b) Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performance, and (iii) that not more than
one (1) month's rent has been paid in advance.
(c) If Landlord desires to finance or refinance the Premises, or any
part thereof, Tenant hereby agrees to deliver to any lender designated by
Landlord such financial statements of Tenant as may be reasonably required by
such lender. Such statements shall include the past three (3) years' financial
statements of Tenant. All such financial statements shall be received by
Landlord in confidence and shall be used only for the purposes herein set forth.
16.2 LANDLORD'S INTERESTS. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the fee title or a tenant's
interest in a ground lease of the Premises. In the event of any transfer of such
title or interest, Landlord 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 Landlord's obligations thereafter to be
performed, provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective periods of ownership.
16.3 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.
(PAGE 4 NET-NET-NET)
16.4 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest at
ten (10%) percent per annum from the date due. Payment of such interest shall
not excuse or cure any default by Tenant under this Lease.
16.5 TIME OF ESSENCE. Time is of the essence.
16.6 CAPTIONS. Article and paragraph captions are not a part hereof.
16.7 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
all 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.
16.8 WAIVERS. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant. The acceptance of rent
hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of
any provision hereof, other than the failure of Tenant to pay the particular
rent so accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
16.9 RECORDING. Tenant shall not record this Lease. Any such recordation
shall be a breach under this Lease.
16.10 HOLDING OVER. If Tenant remains in possession of the Premises or any
part thereof after the expiration of the term hereof with the express written
consent of Landlord, such occupancy shall be a tenancy from month to month at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, and upon the terms hereof applicable to month-to-month tenancy.
16.11 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.
16.12 COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
16.13 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions of
Article 16.2, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the state
where the Premises are located.
16.14 SUBORDINATION.
(a) This Lease, at Landlord's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation for security
now or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Tenant, this Lease shall be 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) Tenant agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any mortgage, deed
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 Landlord as Tenant's attorney in fact and in Tenant's name, place and
stead, to do so.
16.15 ATTORNEY'S FEES. If either party named herein brings an action to
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the court.
16.16 LANDLORD'S ACCESS. Landlord and landlord's agents shall have the
right to enter the premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, or lenders, and making
such alterations, repairs, improvements or additions to the premises or to the
building of which they are a part as landlord may deem necessary or desirable.
Landlord may at anytime place on or about the premises any ordinary "For Sale"
signs and Landlord may at any time during the last one hundred twenty (120) days
of the term hereof place on or about the Premises any ordinary "For Sale or
Lease" signs, all without rebate of rent or liability to Tenant.
16.17 AUCTIONS. Tenant shall not place any auction sign upon the Premises
or conduct any auction thereon without Landlord's prior written consent.
16.18 MERGER. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
16.19 CORPORATE AUTHORITY. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of
said corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
16.20 LANDLORD'S LIABILITY. If Landlord is a limited partnership, the
liability of the partners of the Landlord pursuant to this Lease shall be
limited to the assets of the partnership; and Tenant, its successors and assigns
hereby waive all rights to proceed against any of the partners, or the officers,
shareholders, or directors of any corporate partner of Landlord except to the
extent of their interest in the partnership. The term "Landlord", as used in
this Article, shall mean only the owner or owners at the time in question of the
fee title or its interest in a ground lease of the Premises, and in the event of
any transfer of such title or interest, Landlord 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 Landlord's obligations
thereafter to be performed, provided that any funds in the hands of Landlord or
the then grantor at the time of such transfer, in which Tenant has an interest,
shall be delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective periods of ownership.
17. PERFORMANCE BOND. At any time Tenant either desires to or is required to
make any repairs, alterations, additions, improvements or utility installation
thereon, pursuant to Articles 7.5 or 9.2 herein, or otherwise, Landlord may at
his sole option require Tenant, at Tenant's sole cost and expense, to obtain and
provide to Landlord a lien and completion bond in an amount equal to one and
one-half (11 1/2) times the estimated cost of such improvements, to insure
Landlord against liability for mechanics' and materialmen's liens and to insure
completion of the work.
(PAGE 5 NET-NET-NET)
18. BROKERS. The parties hereto acknowledge that there is no broker were the
real estate brokers that represented the parties herein, and that no other
commissions are due to any brokers whatsoever, other than the above-named
brokers.
19. NOTICES. Whenever under this Lease provision is made for any demand,
notice or declaration of any kind, or where it is deemed desirable or necessary
by either party to give or serve any such notice, demand or declaration to the
other party, it shall be in writing and served either personally or sent by
United States mail, postage prepaid, addressed at the addresses set forth
hereinbelow:
To Landlord at: X.X. Xxx 0000 Xxxxxx, Xxxxxxx 00000 (928)282-2328
TO Tenant at: 000 X. Xxxxxxxx Xx. Xxxxx, Xxxxxxx 00000 (480) 967-3565
20. INSURING PARTY. The insuring party under this lease shall be the Tenant.
21. RENT SCHEDULE:
PERIOD MONTHLY BASE RENT
Oct 1, 2004 thru Sept 30, 2006 $23,200,00
Oct 1, 2006 thru Sept 30, 2008 $24,600.00
Oct 1, 2008 thru Sept 30, 2009 $26,000.00
22. PROPERTY INSURANCE ADDITION.
In addition to paragraph 8.3 hereinabove, all such policies shall also
contain a provision or endorsement insuring that, in the event of an
insured casualty, the rent payable under paragraphs 4 and 21 herein shall
be paid by the insurer to the extent that the leased premises are rendered
unusable to tenent during the period of repairing or rebuilding the leased
premises.
23. OPTION TO EXTEND.
If tenant shall not be in default under the terms and conditions of this
lease, tenant shall have the right and option to extend the term of this
lease for one period of five (5) years.
Tenant may exercise such option only by giving Landlord written notice
thereof not less than one (1) year prior to the expiration of the then
running term of this lease. The covenants and conditions between Landlord
and Tenant during such extension period shall be the same as those
contained in this lease, except the monthly base rent shall be the same as
that of the last month of this lease, plus 3%, and the rent for this
extension shall be subject to a 3% annual increase for each year of the
extended term.
24. PAYMENT OF TAXES.
Landlord shall send Tenant a copy of the annual/property tax assessment
and tax xxxx upon Landlords receipt of same. Landlord shall invoice Tenant
for such taxes as they become due. Tenant shall pay Landlord the tax
amount due upon receipt of said invoice and Landlord shall pay the
property tax xxxx. All other provisions of paragraph 10.1 herein shall
remain the same.
The parties hereto have executed this lease at the place and on the dates
specified immediately adjacent to their respective signatures.
Executed at Sedona, Arizona Xxxxxxxx Development Co. a DBA of:
on 7-16-03 By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx and/or
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx
"LANDLORD"
Executed at Tempe, Arizona Rockford Corporation Inc., an Ariz. corp.
on 7/9/03 BY /S/ W. Xxxx Xxxxxx
------------------------------------------
Xxxx Xxxxxx, President
BY /S/ Xxxx Xxxxxxxx
------------------------------------------
Xxxx Xxxxxxxx, Vice President
"TENANT"
(PAGE 6 NET-NET-NET)
"EXHIBIT A"
LEGAL DESCRIPTION Parcol 1
That portion of TRACT A of XXXXX UNIVERSITY INDUSTRIAL PARK; a subdivision
recorded in Book 174 of Maps, Page 48, Maricopa County Records and located in
the Southeast quarter of Section 13, Township 1 North, Range 4 East of the Gila
and Salt River Base and Meridian, Maricopa County, Arisona, more particularly
described as follows;
Commencing at a point on the North line of said TRACT A, from which the
Northwest corner of said TRACT A, bears South 89 degrees 45' 49" West (recorded
South 89 degrees 45' 28" West) 340.OO feet, said point being, the True Point of
Beginning;
thence South, 0 degrees 10' 46" East (recorded South 0 degrees 10' 18"
East) parallel with the West line of said TRACT A, 179.53 feet;
thence East parallel with the South line of said TRACT A, 48.0 feet;
thence North 0 degrees 10' 46" West (recorded North 0 degrees 10' 18"
West) 19.l6 feet;
thence East parallel with the South line of said TRACT A, 441.69 feet;
thence South 54 degrees 09' 24" East 25.67 feet to a point on the East
line of said TRACT A, said point also being on the Westerly right-of-way line of
Rockford Drive;
thence North 35 degrees 50' 36" East (recorded North 35 degrees 53' 32"
East) along said right-of-way, 12.88 feet to a point on the arc of a circle the
center of which bears North 54 degrees 09' 24" West 621.05 feet (recorded 620.0
feet);
thence Northeasterly along the arc of said curve through a central angle
of 16 degrees 51' 32", a distance of 182.74 feet to the Northeast corner of said
TRACT A;
thence North 71 degrees 00' 56" West (recorded North 71 degrees 00' 09"
West) along the North line of said TRACT A, 17.64 feet, (recorded 17.30 feet);
thence continuing along the said North line, South 89 degrees 45' 49" West
(recorded South 89 degrees 45' 28" West) 585.70 feet to the True Point of
Beginning.
Described property being in and forming a part of the City of Tempe and
comprising an area of 2.1312 acres more or less.
