LEASE AGREEMENT ENTERED INTO BY AND BETWEEN PARQUE INDUSTRIAL MEXICALI, S.A. DE
C.V., (HEREINAFTER REFERRED TO AS PIMSA), HEREIN REPRESENTED BY MR. EDUARDO
MANUEL MARTINEZ PALOMERA, PARTY OF THE FIRST PART, AND BY COASTCAST CORPORATION,
S.A., (HEREINAFTER REFERRED TO AS COMPANY), HEREIN REPRESENTED BY MR. WILLIAM
LAWRENCE OSBORN, PARTY OF THE SECOND PART, PURSUANT TO THE FOLLOWING RECITALS
AND CLAUSES:
R E C I T A L S
I. PIMSA HEREBY DECLARES THAT:
A. IT IS A COMPANY ORGANIZED AND EXISTING UNDER THE MEXICAN GENERAL
CORPORATION LAW, AS PER PUBLIC INSTRUMENT NUMBER 20,032, EXECUTED BEFORE
ATTORNEY FERNANDO DIAZ CEBALLOS, NOTARY PUBLIC NUMBER 4 OF THE CITY OF MEXICALI,
BAJA CALIFORNIA, MEXICO.
B. EDUARDO MANUEL MARTINEZ PALOMERA IS ITS ATTORNEY-IN-FACT, AS IT
APPEARS IN PUBLIC INSTRUMENT NUMBER 31,019, VOLUME 569, EXECUTED ON NOVEMBER
26, 1997, BEFORE ATTORNEY FERNANDO DIAZ CEBALLOS, NOTARY PUBLIC NUMBER 4 OF
THE CITY OF MEXICALI, BAJA CALIFORNIA, MEXICO.
C. PIMSA'S REGISTRATION NUMBER AT THE FEDERAL REGISTRY OF TAXPAYERS IS:
PIM-790807-D96.
D. THE ADDRESS AT WHICH IT HAS ITS PRINCIPAL PLACE OF BUSINESS IS AVENIDA
GALAXIA NUMBER 18-B, PARQUE INDUSTRIAL MEXICALI I, MEXICALI, BAJA CALIFORNIA,
MEXICO.
E. PIMSA HAS DEVELOPED THE MEXICALI INDUSTRIAL PARK I AND THE MEXICALI
INDUSTRIAL PARK II, AND IS DEVELOPING THE MEXICALI INDUSTRIAL PARK III AND THE
MEXICALI INDUSTRIAL PARK IV. THE MEXICALI INDUSTRIAL PARK I, HEREINAFTER
REFERRED TO AS THE INDUSTRIAL PARK, IS MORE SPECIFICALLY SHOWN AND DESCRIBED ON
EXHIBIT "A", WHICH IS ATTACHED HERETO AND MADE A PART HEREOF.
F. THE PARTIES DESIRE TO ENTER INTO A LEASE OF LOTS 3, 4, 5, 9 AND A
PORTION OF LOT 10 OF BLOCK 6, LOCATED IN THE MEXICALI INDUSTRIAL PARK I, AT
CALLE MARTE NUMBER 162, AND OF CERTAIN IMPROVEMENTS CONSTRUCTED ON THE LAND. THE
LAND AND PIMSA'S IMPROVEMENTS TOGETHER SHALL HEREINAFTER BE REFERRED TO AS THE
LEASED PROPERTY.
G. THAT IT HAS PREVIOUSLY APPLIED FOR AND OBTAINED FINANCIAL LOANS
THROUGH MEXICAN AND FOREIGN BANKING AND LENDING INSTITUTIONS, WITH WHICH FUNDS,
BUILDINGS AND IMPROVEMENTS LOCATED IN THE INDUSTRIAL JPARKS HAVE BEEN, ARE BEING
AND WILL BE CONSTRUCTED.
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II. COMPANY HEREBY DECLARES THAT:
A. IT IS A COMPANY ORGANIZED UNDER THE MEXICAN GENERAL CORPORATION LAW AS
PER PUBLIC INSTRUMENT NUMBER 28,658, VOLUME 478, EXECUTED ON JANUARY 26, 1994,
BEFORE ATTORNEY FERNANDO DIAZ CEBALLOS, NOTARY PUBLIC NUMBER 4 OF THE CITY OF
MEXICALI, BAJA CALIFORNIA, MEXICO.
B. MR. WILLIAM LAWRENCE OSBORN VERIFIES HIS CAPACITY AS GENERAL DIRECTOR
OF OPERATIONS AND GENERAL MANAGER OF COMPANY AS PER PUBLIC INSTRUMENT NUMBER
31,457, VOLUME 577, EXECUTED ON NOVEMBER 09, 1998, BEFORE ATTORNEY FERNANDO DIAZ
CEBALLOS, NOTARY PUBLIC NUMBER 4 OF THE CITY OF MEXICALI, BAJA CALIFORNIA,
MEXICO.
C. COMPANY'S REGISTRATION NUMBER AT THE FEDERAL REGISTRY OF TAXPAYERS IS:
CCO-821123-QA1.
D. THE ADDRESS AT WHICH IT HAS ITS PRINCIPAL PLACE OF BUSINESS IS CALLE
MERCURIO NUMBER 70, MEXICALI INDUSTRIAL PARK I, MEXICALI, BAJA CALIFORNIA,
MEXICO.
PURSUANT TO THE ABOVE, THE PARTIES AGREE AS FOLLOWS:
C L A U S E S
I. SCOPE OF LEASE AGREEMENT.
ON THE EXPRESS TERMS AND CONDITIONS SET FORTH HEREINAFTER, THE SCOPE OF
THIS LEASE AGREEMENT IS AS FOLLOWS: PIMSA HEREBY LEASES TO COMPANY AND COMPANY
HEREBY LEASES FROM PIMSA THE LAND IN THE INDUSTRIAL PARK AS DESCRIBED ON EXHIBIT
"B", WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, AND PIMSA'S IMPROVEMENTS
AS MORE SPECIFICALLY DESCRIBED HEREINAFTER IN THIS LEASE AGREEMENT.
II. CONSTRUCTION BY PIMSA.
A. PIMSA HAS, AT ITS EXPENSE, CONSTRUCTED ON THE LAND CERTAIN
IMPROVEMENTS WHICH SHALL HEREINAFTER BE REFERRED TO AS PIMSA'S IMPROVEMENTS.
SAID PIMSA'S IMPROVEMENTS HAVE BEEN CONSTRUCTED IN ACCORDANCE WITH PLANS AND
SPECIFICATIONS WHICH HAVE BEEN APPROVED BY PIMSA AND COMPANY AND SUCH APPROVAL
IS HEREBY ACKNOWLEDGED BY THE PARTIES.
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B. PIMSA HAS CONSTRUCTED ALL PIMSA'S IMPROVEMENTS IN ACCORDANCE WITH
ALL LAWS, ORDINANCES, REGULATIONS, AND ORDERS OF GOVERNMENTAL AUTHORITIES,
AND INDUSTRIAL PARK REGULATIONS WHICH ARE ATTACHED HERETO AS EXHIBIT "C". THE
TERM "IMPROVEMENTS" SHALL, DEPENDING ON THE CONTEXT, REFER TO EITHER "PIMSA'S
IMPROVEMENTS", "COMPANY'S IMPROVEMENTS" OR BOTH. THE TERM "COMPANY'S
IMPROVEMENTS" SHALL REFER TO THOSE IMPROVEMENTS IDENTIFIED IN PARAGRAPH
III.A. BELOW.
C. THE LEASED PROPERTY IS CONSIDERED READY FOR OCCUPANCY.
D. UPON PRIOR WRITTEN CONSENT OF PIMSA, COMPANY MAY AT ANY TIME PRIOR TO
THE COMMENCEMENT OF THE TERM HEREOF, AT ITS SOLE RISK, ENTER UPON AND INSTALL
SUCH TRADE FIXTURES AND EQUIPMENT IN THE LEASED PROPERTY AS IT MAY ELECT;
PROVIDED, HOWEVER THAT, (I) COMPANY SHALL PROVIDE EVIDENCE OF INSURANCE
SATISFACTORY TO PIMSA.
III. INSTALLATIONS BY COMPANY.
A. COMPANY MAY, AT ITS EXPENSE, INSTALL ON THE LEASED PROPERTY, SUCH
TRADE FIXTURES, EQUIPMENT AND FURNITURE AS IT MAY DEEM NECESSARY; PROVIDED
THAT SUCH ITEMS ARE INSTALLED AND ARE REMOVABLE WITHOUT DAMAGE TO THE
STRUCTURAL INTEGRITY OF PIMSA'S IMPROVEMENTS. SAID TRADE FIXTURES, EQUIPMENT
AND FURNITURE SHALL REMAIN COMPANY'S PROPERTY AND UNLESS COMPANY IS IN
DEFAULT HEREUNDER, SHALL BE REMOVED BY COMPANY ON OR BEFORE THE EXPIRATION
DATE OF THE TERM HEREOF. COMPANY MAY ALSO INSTALL TEMPORARY IMPROVEMENTS IN
THE INTERIOR OF PIMSA'S IMPROVEMENTS UPON THE LEASED PROPERTY PROVIDED THAT
SUCH COMPANY'S IMPROVEMENTS ARE INSTALLED AND ARE REMOVABLE WITHOUT DAMAGE TO
THE STRUCTURE OF THE PIMSA'S IMPROVEMENTS. SUCH COMPANY'S IMPROVEMENTS SHALL
REMAIN PROPERTY OF COMPANY AND, UNLESS COMPANY IS IN DEFAULT HEREUNDER, SHALL
BE REMOVED BY COMPANY UPON EXPIRATION OF THE TERM HEREOF OR EARLIER
TERMINATION OF THIS LEASE. COMPANY SHALL REPAIR, AT ITS SOLE EXPENSE, ALL
DAMAGE CAUSED BY THE INSTALLATION OR REMOVAL OF TRADE FIXTURES, EQUIPMENT,
FURNITURE OR TEMPORARY COMPANY'S IMPROVEMENTS, REASONABLE WEAR AND TEAR
EXCEPTED.
B. COMPANY SHALL PERFORM ALL INSTALLATIONS IN ACCORDANCE WITH ALL LAWS,
ORDINANCES, REGULATIONS, ORDERS OF GOVERNMENTAL AUTHORITIES, AND THE INDUSTRIAL
PARK REGULATIONS WHICH ARE ATTACHED HERETO AS EXHIBIT "C".
4
IV. LEASE TERM AND COMMENCEMENT DATE.
A. LEASE AGREEMENT. THIS LEASE AGREEMENT SHALL BE EFFECTIVE FROM THE
COMMENCEMENT DATE UNTIL THE SAME IS TERMINATED AS PROVIDED HEREINAFTER, THE
COMPLETE PERIOD OF TENANCY BEING REFERRED TO HEREIN AS THE "LEASE TERM".
B. INITIAL LEASE TERM. THE INITIAL TERM OF THIS LEASE ("INITIAL TERM")
SHALL COMMENCE ON FEBRUARY 01, 2000 ("COMMENCEMENT DATE") AND SHALL END ON THE
LAST DAY OF THE SEVENTY SEVENTH (77TH) CONSECUTIVE MONTH (JUNE 30, 2006).
C. LEASE YEAR. THE TERM "LEASE YEAR" AS USED HEREIN, SHALL MEAN A PERIOD
OF TWELVE (12) CONSECUTIVE FULL CALENDAR MONTHS. THE FIRST LEASE YEAR SHALL
BEGIN ON THE COMMENCEMENT DATE OF THE TERM HEREOF, IF THE COMMENCEMENT DATE OF
THE TERM HEREOF SHALL OCCUR ON THE FIRST (1ST) DAY OF A CALENDAR MONTH; IF NOT
THEN THE FIRST LEASE YEAR SHALL COMMENCE UPON THE FIRST (1ST) DAY OF THE
CALENDAR MONTH NEXT FOLLOWING THE COMMENCEMENT DATE OF THE TERM HEREOF. EACH
SUCCEEDING LEASE YEAR SHALL COMMENCE UPON THE ANNIVERSARY DATE OF THE FIRST
LEASE YEAR.
D. OPTION TO RENEW. COMPANY SHALL HAVE THE RIGHT TO EXTEND THE TERM OF
THIS LEASE AGREEMENT UPON THE TERMS, CONDITIONS AND RENTALS SET FORTH HEREIN,
FOR ONE (1) ADDITIONAL PERIOD OF FIVE (5) YEARS, ("RENEWAL TERMS"), BY GIVING
WRITTEN NOTICE TO PIMSA NOT LESS THAN SIX (6) MONTHS PRIOR TO THE EXPIRATION OF
THE INITIAL TERM OF THIS LEASE AGREEMENT, SO LONG AS COMPANY IS NOT THEN IN
DEFAULT HEREUNDER.
V. RENT
A. INITIAL TERM. AS MINIMUM MONTHLY RENT FOR THE LEASE OF THE LEASED
PROPERTY DURING THE LEASE TERM HEREOF, COMPANY SHALL PAY TO PIMSA AT THE
ADDRESS OF PIMSA STATED ABOVE, THE MONTHLY SUM IN PESOS, MEXICAN CURRENCY, EQUAL
TO THE MONTHLY PAYMENTS IN DOLLARS, UNITED STATES CURRENCY, PAYABLE AS FOLLOWS:
1. $29,682.00 DOLLARS, UNITED STATES CURRENCY, (TWENTY NINE THOUSAND
SIX HUNDRED EIGHTY TWO DOLLARS 00/100, UNITED STATES CURRENCY), UPON THE
EXECUTION OF THIS CONTRACT WHICH SUM SHALL BE APPLIED TO THE LAST THREE (3)
MONTHS OF THE INITIAL TERM.
2. SEVENTY FOUR (74) EQUAL MONTHLY PAYMENTS OF $9,894.00 DOLLARS
(NINE THOUSAND EIGHT HUNDRED NINETY FOUR DOLLARS 00/100, UNITED STATES
CURRENCY), EACH PAYABLE IN ADVANCE ON THE FIRST (1ST) DAY OF EACH MONTH DURING
THE INITIAL TERM, COMMENCING ON THE FIRST (1ST) MONTH OF THE INITIAL TERM.
5
3. INCREASE OF MONTHLY RENT COMMENCING ON THE THIRD LEASE YEAR. ON
THE FIRST (1ST) DAY OF THE THIRD LEASE YEAR THE MONTHLY RENT SHALL BE INCREASED
BY AN AMOUNT WHICH IS EQUAL TO THE PRODUCT OF:
a. THE MONTHLY RENT THEN BEING PAID FOR THE IMMEDIATELY
PRECEDING LEASE YEAR, IN ACCORDANCE TO CLAUSE V.A.2., HEREINABOVE, MULTIPLIED BY
b. THE PERCENTAGE INCREASE IN THE INDEX (AS HEREINAFTER
DEFINED) DURING THE IMMEDIATELY PRECEDING LEASE YEAR.
1) MAXIMUM RENT INCREASE; NO DECREASE. NOTWITHSTANDING
ANYTHING HEREIN CONTAINED TO THE CONTRARY, THE MONTHLY RENT FOR THE THIRD,
FOURTH AND FIFTH LEASE YEARS SHALL NOT BE INCREASED BY AN AMOUNT GREATER THAN
TEN PERCENT (10%) OF THE RENT FOR THE IMMEDIATELY PRECEDING MONTH. IN NO EVENT
SHALL THE MONTHLY RENT FOR THE THIRD, FOURTH AND FIFTH LEASE YEARS BE DECREASED
BELOW THE MONTHLY RENT FOR THE IMMEDIATELY PRECEDING LEASE YEAR.
2) INDEX DEFINED. THE TERM "INDEX" SHALL MEAN THE UNITED
STATES BUREAU OF LABOR STATISTICS CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
(ALL ITEMS, LOS ANGELES-RIVERSIDE-ORANGE COUNTY, CALIFORNIA AREA,
1982-1984=100).
IF THE COMPILATION OR PUBLICATION OF THE INDEX IS
TRANSFERRED TO ANY OTHER DEPARTMENT, BUREAU OR AGENCY OF THE UNITED STATES
GOVERNMENT OR IS DISCONTINUED, THEN THE INDEX MOST SIMILAR TO THE INDEX SHALL
BE USED TO CALCULATE THE RENT INCREASES PROVIDED FOR HEREIN. IF PIMSA AND
COMPANY CANNOT AGREE ON A SIMILAR ALTERNATE INDEX, THEN THE MATTER SHALL BE
SUBMITTED FOR DECISION TO THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE
WITH THE THEN RULES OF SUCH ASSOCIATION, AND THE DECISION OF THE ARBITRATORS
SHALL BE BINDING UPON THE PARTIES. THE COST OF SUCH ARBITRATION SHALL BE
DIVIDED EQUALLY BETWEEN PIMSA AND COMPANY.
B. ADDITIONAL RENT. WITH THE EXCEPTION OF INCOME TAX IMPOSED UPON PIMSA,
AND ANY TAX ASSOCIATED WITH THE SALE OR TRANSFER OF THE LEASED PROPERTY OR
PIMSA'S IMPROVEMENTS, WHICH SHALL BE BORNE BY PIMSA, COMPANY WILL PAY TO PIMSA,
AS ADDITIONAL RENT, AN AMOUNT EQUAL TO THE SUM OF ALL TAXES AND ASSESSMENTS OF
EVERY KIND WHICH ARE OR MAY BE AT ANY TIME DURING THE LEASE TERM, LEVIED AGAINST
THE LEASED PROPERTY OR THE LEASE AGREEMENT, INCLUDING BUT NOT LIMITED TO GROSS
SALES TAX, VALUE ADDED TAX OR STAMP TAX, PROPERTY TAX AND ALL SUCH TAXES AND
ASSESSMENTS, LEVIED BY ANY FEDERAL, STATE OR
6
MUNICIPAL GOVERNMENT, OR ANY GOVERNMENTAL AUTHORITY. ALL SUCH TAXES AND
ASSESSMENTS SHALL BE PAID BY PIMSA AND REIMBURSED BY COMPANY WITHIN TEN (10)
DAYS AFTER THE RECEIPT SHOWING THE PAYMENT THEREOF IS PRESENTED TO COMPANY BY
PIMSA.
IN CALCULATING THE AMOUNT OF COMPANY'S REIMBURSEMENT, ALL TAXES WHICH
SHALL BECOME DUE FOR THE FIRST AND LAST YEARS OF THE LEASE TERM SHALL BE
APPORTIONED PRORATA BETWEEN PIMSA AND COMPANY IN ACCORDANCE WITH THE RESPECTIVE
NUMBER OF MONTHS DURING WHICH EACH PARTY SHALL BE IN POSSESSION OF THE LEASED
PROPERTY.
C. RENEWAL TERMS.
1. GRANT OF OPTION AND MANNER OF EXERCISE. COMPANY SHALL HAVE THE
OPTION TO EXTEND THE TERM OF THIS LEASE FOR ONE (1) PERIOD OF FIVE (5) YEARS,
(THE "EXTENDED TERM"). COMPANY SHALL GIVE WRITTEN NOTICE TO PIMSA NOT LESS THAN
SIX (6) MONTHS PRIOR TO THE EXPIRATION OF THE INITIAL TERM, IF COMPANY ELECTS TO
EXERCISE THE OPTION TO EXTEND GRANTED HEREIN.
2. RENT. THE MONTHLY RENT FOR EACH LEASE YEAR OF THE EXTENDED TERM
SHALL BE EQUAL TO THE MONTHLY RENT FOR THE IMMEDIATELY PRECEDING LEASE YEAR,
PLUS AN AMOUNT WHICH IS EQUAL TO THE PRODUCT OF:
a. THE MONTHLY RENT PAID BY COMPANY DURING THE IMMEDIATELY
PRECEDING LEASE YEAR, MULTIPLIED BY
b. THE PERCENTAGE INCREASE IN THE INDEX (AS HEREINABOVE
DEFINED) DURING THE IMMEDIATELY PRECEDING LEASE YEAR.
NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, THE
MONTHLY RENT FOR EACH LEASE YEAR OF THE EXTENDED TERM SHALL NOT BE INCREASED BY
AN AMOUNT GREATER THAN TEN PERCENT (10%) OF THE MONTHLY RENT FOR THE IMMEDIATELY
PRECEDING LEASE YEAR. IN NO EVENT SHALL THE MONTHLY RENT FOR ANY LEASE YEAR OF
THE EXTENDED TERM BE DECREASED BELOW THE MONTHLY RENT FOR THE IMMEDIATELY
PRECEDING LEASE YEAR.
D. COMPANY WILL PAY THE RENT PROVIDED FOR IN THE ABOVE PARAGRAPH A. IN
PESOS, MEXICAN CURRENCY, AT THE RATE OF EXCHANGE EFFECTIVE IN THE FREE FOREIGN
MARKET ON THE DATE SUCH SUMS ARE PAID, OR IN DOLLARS, UNITED STATES CURRENCY, AS
LAW AND FOREIGN EXCHANGE RULES ALLOW, AS PIMSA MAY ELECT.
7
THE FOREGOING WILL NOT BE CONSIDERED TO IMPEDE OR HINDER PIMSA'S
POSSIBILITIES AND RIGHTS UNDER CLAUSE XII TO NEGOTIATE OR ASSIGN THIS
AGREEMENT TO MEXICAN, UNITED STATES OR OTHER FOREIGN BANKING OR LENDING
INSTITUTIONS.
E. PRORATION. THE RENT FOR ANY PARTIAL MONTH SHALL BE PRORATED.
F. LIQUIDATED DAMAGES. IN THE EVENT THIS LEASE AGREEMENT IS TERMINATED
BY PIMSA DUE TO A DEFAULT OF COMPANY PRIOR TO OR DURING THE FIRST (1ST) SIX
(6) MONTHS OF THE LEASE TERM, PIMSA SHALL BE ENTITLED TO KEEP AND RETAIN AS
LIQUIDATED DAMAGES ALL SUMS PAID OR DEPOSITED BY COMPANY, AS PREPAID RENT OR
AS A SECURITY DEPOSIT, IN ADDITION TO ANY OTHER RIGHTS OF PIMSA PROVIDED FOR
HEREIN.
G. SETOFF. THE PAYMENT OF ANY RENT DUE UNDER THIS LEASE SHALL NOT BE
WITHHELD OR REDUCED FOR ANY REASON WHATSOEVER, AND COMPANY AGREES TO ASSERT
ANY CLAIM, DEMAND, OR OTHER RIGHT AGAINST PIMSA ONLY BY AN INDEPENDENT
PROCEEDING.
VI. USE.
THE LEASED PROPERTY SHALL BE USED AND OCCUPIED FOR ANY LAWFUL INDUSTRIAL
PURPOSE NOT IN VIOLATION OF THE INDUSTRIAL PARK REGULATIONS ATTACHED HERETO
AS EXHIBIT "C". COMPANY SHALL PROMPTLY AND ADEQUATELY COMPLY WITH ALL LAWS,
ORDINANCES AND ORDERS OF ALL GOVERNMENTAL AUTHORITIES AFFECTING THE LEASED
PROPERTY, AND ITS CLEANLINESS, SAFETY AND LABOR FACILITIES APPLICABLE TO THE
COMPANY'S USE OF THE LEASED PROPERTY. COMPANY SHALL NOT PERFORM OR OMIT ANY
ACTS THAT MAY DAMAGE THE LEASED PROPERTY, OR BE A NUISANCE, OR MENACE TO
OTHER OCCUPANTS OF THE INDUSTRIAL PARK.
VII. INSURANCE.
A. COMPREHENSIVE LIABILITY INSURANCE. DURING THE LEASE TERM,
COMPANY SHALL, AT ITS OWN EXPENSE, OBTAIN AND MAINTAIN IN FULL FORCE A POLICY
OF COMPREHENSIVE LIABILITY INSURANCE INCLUDING PROPERTY DAMAGE, THAT INSURES
COMPANY AND PIMSA (AND SUCH OTHER AGENTS OR EMPLOYEES OF PIMSA, PIMSA'S
SUBSIDIARIES OR AFFILIATES, OR PIMSA'S ASSIGNEES OR ANY NOMINEE OF PIMSA
HOLDING ANY INTEREST IN THE LEASED PROPERTY, INCLUDING WITHOUT LIMITATION,
THE HOLDER OF ANY MORTGAGE ENCUMBERING THE LEASED PROPERTY) AGAINST LIABILITY
FOR INJURY TO PERSONS AND PROPERTY AND FOR DEATH OF ANY PERSONS OCCURRING IN
OR ABOUT THE LEASED PROPERTY, THE LIABILITY TO SUCH INSURANCE SHALL BE IN THE
AMOUNT OF $100,000.00 (ONE HUNDRED THOUSAND DOLLARS 00/100, UNITED STATES
CURRENCY).
8
B. FIRE AND OTHER INSURANCE. DURING THE LEASE TERM, COMPANY AT ITS SOLE
EXPENSE, SHALL OBTAIN AND MAINTAIN IN FULL FORCE, IN THE AMOUNT OF
$720,000.00 DOLLARS (SEVEN HUNDRED TWENTY THOUSAND DOLLARS 00/100, UNITED
STATES CURRENCY), OR AS MODIFIED HEREIN, A POLICY OR POLICIES OF INSURANCE
FOR FIRE, LIGHTNING, EXPLOSION, FALLING AIRCRAFT, SMOKE, WINDSTORM,
EARTHQUAKE, HAIL, VEHICLE DAMAGE, VOLCANIC ERUPTION, STRIKES, CIVIL
COMMOTION, VANDALISM, RIOTS, MALICIOUS MISCHIEF, DEBRIS REMOVAL, STEAM BOILER
OR PRESSURE OBJECT OR MACHINERY BREAKAGE IF APPLICABLE, AND FLOOD INSURANCE,
ON ALL THE LEASED PROPERTY, INCLUDING BUT NOT LIMITED TO THE SHELL BUILDING
AND INTERIOR FIT-UP. COMPANY SHALL ALSO OBTAIN AND MAINTAIN ANNUAL RENTAL
INSURANCE IN THE AMOUNT OF THE ANNUAL RENT PROVIDED FOR HEREIN IN FAVOR OF
PIMSA. COMPANY SHALL BE RESPONSIBLE FOR MAINTAINING INSURANCE ON ALL OF
COMPANY'S OWN PROPERTY. EXCEPT FOR INSURANCE UPON COMPANY'S PROPERTY, PIMSA
OR ITS APPOINTEE SHALL BE NAMED THE COMPANY'S BENEFICIARY OF ANY AND ALL
PROCEEDS FROM ANY SUCH POLICY OR POLICIES, AS THEIR INTERESTS MAY APPEAR.
C. FORM AND DELIVERY OF POLICIES. EACH INSURANCE POLICY REFERRED TO IN
THE PRECEDING PARAGRAPHS SHALL BE IN A FORM APPROVED BY THE DEPARTMENT OF
FINANCE AND PUBLIC CREDIT AND WRITTEN WITH ONE OR MORE COMPANIES LICENSED TO
DO INSURANCE IN MEXICALI, BAJA CALIFORNIA, MEXICO, AND SHALL PROVIDE THAT IT
SHALL NOT BE SUBJECT TO CANCELLATION OR CHANGE EXCEPT AFTER AT LEAST THIRTY
(30) DAYS PRIOR WRITTEN NOTICE TO PIMSA. THE POLICIES, OR DULY EXECUTED
CERTIFICATES FOR THEM, TOGETHER WITH COPIES OF RECEIPTS FOR PAYMENT OF THE
PREMIUMS THEREOF, SHALL BE DELIVERED TO PIMSA PRIOR TO THE COMMENCEMENT DATE
OF THE LEASE TERM, AS PROVIDED IN CLAUSE IV HEREOF; ALL DOCUMENTS VERIFYING
THE RENEWAL OF SUCH POLICIES SHALL BE DELIVERED TO PIMSA AT LEAST THIRTY (30)
DAYS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH COVERAGE. PRIOR TO THE
COMMENCEMENT DATE OF THE LEASE TERM, EACH PARTY SHALL PROCURE AND MAINTAIN
SUCH INSURANCE COVERING ITS OWN LIABILITY AND PROPERTY AS EACH DEEMS
APPROPRIATE.
D. ADDITIONAL INSURANCE. COMPANY SHALL OBTAIN AND MAINTAIN IN FULL
FORCE AND EFFECT SUCH ADDITIONAL AMOUNTS OF INSURANCE AS MAY BE REQUIRED BY
PIMSA, FROM TIME TO TIME, IN ACCORDANCE WITH THE PROVISIONS OF THIS CLAUSE
VII, AND IN ORDER TO ADEQUATELY AND PROPERLY INSURE PIMSA OF AND FOR THE THEN
CURRENT REPLACEMENT VALUE OF THE LEASED PROPERTY.
9
E. WAIVER OF SUBROGATION. THE PARTIES RELEASE EACH OTHER, AND THEIR
RESPECTIVE AUTHORIZED REPRESENTATIVES, FROM ANY CLAIMS FOR DAMAGE TO ANY
PERSON OR TO THE PREMISES AND TO THE FIXTURES, PERSONAL PROPERTY, TENANT'S
IMPROVEMENTS, AND ALTERATIONS OF EITHER PIMSA OR COMPANY IN OR ON THE
PREMISES THAT ARE CAUSED BY OR RESULT FROM RISKS INSURED AGAINST UNDER ANY
INSURANCE POLICIES CARRIED BY THE PARTIES AND IN FORCE AT THE TIME OF ANY
SUCH DAMAGE. IF EITHER PARTY PURCHASES INSURANCE, THE POLICY SHALL PROVIDE
THAT THE INSURANCE COMPANY WAIVES ALL RIGHT OF RECOVERY BY WAY OF SUBROGATION
AGAINST EITHER PARTY IN CONNECTION WITH ANY DAMAGE COVERED BY ANY POLICY. IF
A PARTY HERETO CANNOT OBTAIN SUCH WAIVER OF SUBROGATION THROUGH REASONABLE
EFFORTS, IT SHALL OBTAIN INSURANCE NAMING THE OTHER PARTY AS A COINSURED
UNDER ITS POLICY IN ORDER TO ACCOMPLISH THE INTENT OF THIS PROVISION.
VIII. TAXES AND ASSESSMENTS.
COMPANY AGREES TO PAY ALL TAXES AND ASSESSMENTS OF EVERY KIND LEVIED UPON
ANY AND ALL PERSONAL PROPERTY OF COMPANY, ITS SUCCESSORS AND ASSIGNS, WHETHER
SAME SHALL BE OR MAY BECOME A LIEN UPON THE LEASED PROPERTY. ALL SUCH TAXES
AND ASSESSMENTS SHALL BE PAID BY COMPANY BEFORE THE SAME BECOME DELINQUENT.
IN THE EVENT THAT THIS CONTRACT IS RECORDED AT THE PUBLIC REGISTRY OF
PROPERTY, COMPANY SHALL PAY ALL COSTS OF SUCH RECORDATION, INCLUDING, BUT NOT
LIMITED TO, NOTARY FEES, CHARGES, TAXES AND STAMPS REQUIRED IN CONNECTION
THEREWITH.
IX. REPAIRS, ALTERATIONS AND IMPROVEMENTS.
A. PIMSA
1. AFTER RECEIPT OF WRITTEN NOTICE FROM COMPANY, PIMSA AT ITS
EXPENSE, SHALL WITH THE MINIMUM INTERFERENCE WITH COMPANY'S NORMAL USE OF THE
LEASED PROPERTY, DILIGENTLY PROCEED TO REPAIR ANY STRUCTURAL DEFECTS IN THE
ROOF OR EXTERIOR BEARING WALLS, EXCEPTING NORMAL USE, WEAR AND DAMAGE. PIMSA
SHALL NOT BE LIABLE FOR ANY DAMAGES, AND SHALL NOT BE OBLIGATED TO MAKE ANY
REPAIRS, CAUSED BY ANY NEGLIGENT ACT OR OMISSIONS OF COMPANY, ITS EMPLOYEES,
AGENTS, INVITEES, OR CONTRACTORS. PIMSA SHALL HAVE NO OTHER OBLIGATION TO
MAINTAIN OR REPAIR ANY OTHER PORTION OF THE LEASED PROPERTY. PIMSA SHALL NOT
BE LIABLE TO COMPANY FOR ANY DAMAGE RESULTING FROM PIMSA'S FAILURE TO MAKE
ANY REPAIRS, UNLESS COMPANY HAS NOTIFIED PIMSA OF THE NEED FOR SUCH REPAIRS,
AND PIMSA HAS FAILED TO COMMENCE SUCH REPAIRS WITHIN TEN (10) DAYS AFTER SAID
NOTICE HAS BEEN GIVEN AND FAILED TO COMPLETE THE SAME IN A DILIGENT MANNER.
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2. IF PIMSA FAILS TO MAKE THE REPAIRS DESCRIBED IN CLAUSE IX.A.,
COMPANY MAY, BUT SHALL NOT BE REQUIRED TO, MAKE OR CAUSE SUCH REPAIRS, TO BE
MADE, AND PIMSA SHALL, ON DEMAND, IMMEDIATELY PAY TO COMPANY THE ACTUAL COST
OF THE REPAIRS.
B. COMPANY
1. COMPANY, AT ITS EXPENSE, SHALL KEEP AND MAINTAIN IN GOOD ORDER
AND REPAIR, EXCEPT FOR NORMAL USE AND WEAR, ALL OF THE LEASED PROPERTY,
EXCEPT FOR THOSE OBLIGATIONS OF PIMSA STATED IN PARAGRAPH A.1., OF THIS
CLAUSE, INCLUDING BUT NOT LIMITED TO, ALL PLUMBING, SEWAGE, AND OTHER UTILITY
FACILITIES THAT ARE WITHIN THE LEASED PROPERTY, AS WELL AS FIXTURES,
PARTITIONS, WALLS (INTERIOR AND EXTERIOR, INCLUDING PAINTING AS OFTEN AS
NECESSARY), FLOORS, CEILINGS, SIGNS, ALL AIR CONDITIONING, HEATING AND
SIMILAR EQUIPMENT, DOORS, WINDOW, PLATE GLASS AND ALL OTHER REPAIRS OF EVERY
KIND AND CHARACTER TO THE LEASED PROPERTY. COMPANY AT ITS EXPENSE, SHALL
REPAIR ALL LEAKS EXCEPT THOSE CAUSED BY STRUCTURAL DEFECTS. THE PLUMBLING
FACILITIES SHALL NOT BE USED FOR ANY OTHER PURPOSE THAN THAT FOR WHICH THEY
WERE CONSTRUCTED. THE EXPENSE OF ANY BREAKAGE, STOPPAGE OR DAMAGE RESULTING
FROM A VIOLATION OF THIS PROVISION, SHALL BE BORNE BY COMPANY. COMPANY SHALL
STORE ALL TRASH ONLY TEMPORARILY WITHING THE LEASED PROPERTY, AND SHALL
ARRANGE FOR THE REGULAR PICK UP OF TRASH AT COMPANY'S EXPENSE. COMPANY SHALL
NOT BURN ANY TRASH OF ANY KIND IN OR ABOUT THE LEASED PROPERTY OR THE
INDUSTRIAL PARK.
2. COMPANY SHALL REQUIRE WRITTEN CONSENT TO MAKE ANY ALTERATION,
IMPROVEMENT OR ADDITION TO THE EXTERIOR WALLS AND ROOF OF THE LEASED PROPERTY
WITH A COST EXCEEDING $5,000.00 (FIVE THOUSAND DOLLARS 00/100, UNITED
STATES CURRENCY; AND COMPANY SHALL NOT DAMAGE ANY FLOORS, WALLS, CEILINGS,
PARTITIONS, OR ANY WOOD, STONE, OR IRONWORK ON OR ABOUT THE LEASED PROPERTY.
3. COMPANY SHALL KEEP THE LEASED PROPERTY FREE AND CLEAR OF ALL
ENCUMBRANCES AND LIENS ARISING OUT OF ACTS OR OMISSIONS OF COMPANY,
INCLUDING THOSE ARISING OUT OF ACTS OR CONSTRUCTION DONE OR ORDERED BY
COMPANY. HOWEVER, IF BY REASON OF ANY WORK PERFORMED, MATERIALS FURNISHED OR
OBLIGATIONS INCURRED BY COMPANY WITH ANY THIRD PARTY, OR ANY OTHER ACT OR
OMISSION BY COMPANY, PIMSA IS MADE LIABLE OR INVOLVED IN LITIGATION, COMPANY
SHALL HOLD HARMLESS AND INDEMNIFY PIMSA INCLUDING ANY COSTS AND EXPENSES, AND
ATTORNEY'S FEES INCURRED BY REASON THEREOF. SHOULD COMPANY FAIL FULLY TO
DISCHARGE ANY SUCH ENCUMBRANCES OR LIENS WITHIN THIRTY (30) DAYS AFTER THE
DATE IT HAS BEEN INSTITUTED, OR
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FAIL TO PROVIDE A BOND ACCEPTABLE TO PIMSA IN THE EVENT OF CONTEST, PIMSA, AT
ITS OPTION, MAY PAY ALL OR ANY PART THEREOF. IF PIMSA PAYS ANY SUCH LIEN OR
ENCUMBRANCES OR ANY PART THEREOF, COMPANY SHALL, ON DEMAND, IMMEDIATELY PAY
PIMSA THE AMOUNT SO PAID, TOGETHER WITH INTEREST AT THE RATE OF TWENTY
PERCENT (20%) PER ANNUM FROM THE DATE OF PAYMENT. NO LIEN OR ENCUMBRANCE OF
ANY CHARACTER WHATSOEVER CREATED BY AN ACT OR OMISSION BY COMPANY SHALL IN
ANY WAY ATTACH OR AFFECT THE RIGHTS OF PIMSA ON THE LEASED PROPERTY.
X. UTILITY SERVICES.
DURING THE TERM OF THIS LEASE AGREEMENT, COMPANY SHALL PROMPTLY PAY FOR
ANY AND ALL PUBLIC AND OTHER UTILITIES AND RELATED SERVICES FURNISHED TO THE
LEASED PROPERTY, INCLUDING BUT NOT LIMITED TO, WATER, GAS, ELECTRICITY AND
TELEPHONE CHARGES.
XI. RIGHT-OF-WAY.
PIMSA IS HEREBY GRANTED A RIGHT-OF-WAY UPON, ACROSS, OVER, AND UNDER THE
LEASED PROPERTY FOR INGRESS, EGRESS, INSTALLATIONS, REPLACING, REPAIRING AND
MAINTAINING ALL UTILITIES, INCLUDING BUT NOT LIMITED TO WATER, GAS,
TELEPHONES, AND ALL ELECTRICITY AND ANY TELEVISION OR RADIO ANTENNA SYSTEM
SERVING THE LEASED PROPERTY. BY VIRTUE OF THIS RIGHT-OF-WAY IT SHALL BE
EXPRESSLY PERMISSIBLE FOR THE PROVIDING ELECTRICAL AND/OR TELEPHONE COMPANY
TO ERECT AND MAINTAIN THE NECESSARY POLES AND OTHER NECESSARY EQUIPMENT ON
THE LEASED PROPERTY; PROVIDED THAT IN EXERCISING ANY RIGHT PIMSA MAY HAVE
UNDER THIS CLAUSE XI, PIMSA AGREES TO CAUSE ONLY A MINIMUM INTERFERENCE WITH
COMPANY'S USE AND POSSESSION OF THE LEASED PROPERTY.
XII. ASSIGNMENT AND SUBLETTING.
A. COMPANY SHALL HAVE THE RIGHT, UPON PRIOR WRITTEN NOTICE TO PIMSA, TO
ASSIGN OR TRANSFER THIS LEASE AGREEMENT, OR ANY INTEREST THEREIN, OR PERMIT
THE USE OF THE LEASED PROPERTY BY ANY INDIVIDUAL, CORPORATION, OR ENTITY, OR
SUBLEASE ALL OR PART OF THE LEASED PROPERTY, PROVIDED, HOWEVER, THAT IN THE
EVENT OF ANY SUCH ASSIGNMENT, TRANSFER OR SUBLEASE, COMPANY AND ITS GUARANTOR
SHALL REMAIN LIABLE FOR ALL ITS OBLIGATIONS UNDER THE LEASE AGREEMENT.
B. PIMSA SHALL HAVE THE RIGHT TO ASSIGN AND REASSIGN, FROM TIME TO TIME,
ANY OR ALL OF THE RIGHTS AND OBLIGATIONS OF PIMSA IN THIS LEASE AGREEMENT, OR
ANY INTEREST THEREIN, WITHOUT COMPANY'S CONSENT, PROVIDED THAT NO SUCH
ASSIGNMENT OR REASSIGNMENT SHALL IMPAIR ANY OF THE RIGHTS OF
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COMPANY HEREIN, AND PROVIDED FURTHER, THAT PIMSA SHALL REMAIN LIABLE FOR ALL
OF ITS OBLIGATIONS UNDER THIS LEASE AGREEMENT. IN THE EVENT OF AN ASSIGNMENT
OR REASSIGNMENT, COMPANY SHALL NOT DIMINISH OR WITHHOLD ANY OF THE RENTS
PAYABLE HEREUNDER BY ASSERTING AGAINST SUCH ASSIGNEE ANY DEFENSE, SETOFF, OR
COUNTERCLAIMS WHICH COMPANY MAY HAVE AGAINST PIMSA OR ANY OTHER PERSON.
COMPANY HEREBY SPECIFICALLY WAIVES, WITH RESPECT TO WITHHOLDING OF RENT, ANY
PREVENTATIVE MEASURES TO GUARANTEE PAYMENT OF A CLAIM, AS PROVIDED BY THE
CODE OF CIVIL PROCEDURE.
XIII. SUBORDINATION.
DURING THE TERM OF THIS LEASE AGREEMENT, PIMSA SHALL HAVE THE RIGHT TO
ENCUMBER ITS INTEREST IN THE LEASED PROPERTY OR IN THIS LEASE AGREEMENT FOR
ANY PURPOSE IT DEEMS CONVENIENT, AND COMPANY SHALL AND HEREBY DOES
SUBORDINATE ITS INTEREST IN THIS LEASE AGREEMENT AND IN THE LEASED PROPERTY
TO SUCH ENCUMBRANCE. HOWEVER, IN THE EVENT SUCH ENCUMBRANCE IS FORECLOSED OR
JUDICIALLY ENFORCED, THE ONE WHO HOLDS THE ENCUMBRANCE SHALL AGREE TO HONOR
THIS LEASE AGREEMENT AND ACCEPT THE PERFORMANCE BY COMPANY OF ITS
OBLIGATIONS HEREUNDER. COMPANY SHALL EXECUTE ANY AGREEMENT WHICH MAY BE
REQUIRED BY PIMSA IN CONFIRMATION OF SUCH SUBORDINATION AND SUBMIT WHATEVER
PUBLIC FINANCIAL DATA MAY NORMALLY BE REQUESTED BY ANY TRUST, INSURANCE
COMPANY, BANK OR OTHER RECOGNIZED LENDING INSTITUTION.
ONCE THAT PIMSA SHALL HAVE NOTIFIED COMPANY IN WRITING THAT IT HAS
ASSIGNED ITS INTEREST IN THIS LEASE AGREEMENT TO ANY LENDING INSTITUTION AS
SECURITY FOR A DEBT OR OTHER OBLIGATION OF PIMSA, PIMSA SHALL NOT HAVE THE
POWER TO AMEND THIS LEASE AGREEMENT SO AS TO REDUCE THE RENT, DECREASE THE
TERM OR MODIFY OR NEGATE ANY SUBSTANTIAL OBLIGATION OF COMPANY HEREUNDER, OR
TO ACCEPT A RESCISSION OF THIS CONTRACT, WITHOUT THE WRITTEN CONSENT OF SUCH
LENDING INSTITUTION. SUCH OBLIGATION SHALL CONTINUE UNTIL THE LENDING
INSTITUTION SHALL HAVE NOTIFIED COMPANY IN WRITING THAT SUCH ASSIGNMENT HAS
BEEN TERMINATED, ON THE UNDERSTANDING THAT IF PIMSA FAILS TO OBTAIN SUCH
LENDING INSTITUTION'S APPROVAL TO CARRY OUT THE FOREGOING, THE AMENDMENT OF
THE TERM ABOVE MENTIONED SHALL HAVE NO EFFECT WHATSOEVER AS AGAINST SUCH
LENDING INSTITUTION.
IN ADDITION, IF THE LENDING INSTITUTION SHOULD NOTIFY COMPANY IN WRITING
REQUIRING THE PAYMENT OF RENTS HEREUNDER DIRECTLY TO SUCH LENDING INSTITUTION
OR ITS REPRESENTATIVE, THEN COMPANY SHALL BE OBLIGATED TO PAY TO SUCH LENDING
INSTITUTION OR ITS REPRESENTATIVE EACH SUBSEQUENT MONTHLY RENTAL COMING DUE
UNDER THIS LEASE AGREEMENT (TOGETHER WITH
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ANY UNPAID RENT THEN PAST DUE), UNTIL THE DATE ON WHICH SUCH LENDING
INSTITUTION NOTIFIES COMPANY AUTHORIZING PAYMENT OF RENT TO PIMSA OR OTHER
PARTY ENTITLED THERETO. COMPANY UNDERSTANDS AND AGREES THAT EXCEPT FOR THE
ADVANCED RENTAL PAYMENTS PROVIDED FOR IN PARAGRAPH A.1. OF CLAUSE V OF THIS
LEASE AGREEMENT, PIMSA MAY NOT COLLECT ANY RENT MORE THAN ONE (1) MONTH IN
ADVANCE AND COMPANY, AT THE REQUEST OF PIMSA, SHALL PROVIDE A STATEMENT THAT
NO SUCH ADVANCED PAYMENT HAS BEEN MADE; SUCH DOCUMENT SHALL BE BINDING UPON
COMPANY AS AGAINST THE LENDING INSTITUTION TO WHICH THIS LEASE AGREEMENT MAY
BE ASSIGNED. IN ADDITION, THE LENDING INSTITUTION SHALL NOT BE BOUND TO
RECOGNIZE THOSE PAYMENTS MADE TO PIMSA AFTER THE COMPANY HAS RECEIVED NOTICE
REQUIRING PAYMENTS TO BE MADE TO SUCH LENDING INSTITUTIONS.
XIV. ACCESS TO LEASED PROPERTY.
WITHOUT UNDUE INTERFERENCE TO COMPANY'S OPERATION, PIMSA OR ITS
AUTHORIZED REPRESENTATIVE SHALL HAVE THE RIGHT TO ENTER THE LEASED PROPERTY
DURING ALL COMPANY BUSINESS HOURS, AND IN EMERGENCIES AT ALL TIMES, TO
INSPECT THE LEASED PROPERTY AND TO MAKE REPAIRS, ADDITIONS, OR ALTERATIONS TO
THE LEASED PROPERTY. FOR A PERIOD COMMENCING NINETY (90) DAYS PRIOR TO THE
TERMINATION OF THIS LEASE AGREEMENT, PIMSA SHALL HAVE ACCESS TO THE LEASED
PROPERTY FOR THE PURPOSE OF EXHIBITING IT TO PROSPECTIVE CLIENTS AND MAY POST
USUAL FOR SALE OR FOR LEASE SIGNS UPON THE LEASED PROPERTY. EXCEPT IN CASE OF
EMERGENCY, PIMSA SHALL GIVE NOTICE TO COMPANY BEFORE ENTERING THE LEASED
PROPERTY, AND COMPANY SHALL HAVE THE RIGHT TO ACCOMPANY ANY REPRESENTATIVES
OF PIMSA AND PROSPECTIVE CLIENTS.
XV. DAMAGE OR DESTRUCTION.
A. TOTAL. IN THE EVENT THAT THE WHOLE OR A SUBSTANTIAL PART OF THE
LEASED PROPERTY IS DAMAGED OR DESTROYED BY FIRE, ACT OF NATURE, OR ANY OTHER
CAUSE, SO AS TO MAKE COMPANY UNABLE TO CONTINUE THE OPERATION OF ITS
BUSINESS, PIMSA SHALL, WITHIN FIFTEEN (15) DAYS FROM SUCH DESTRUCTION,
DETERMINE WHETHER THE LEASED PROPERTY CAN BE RESTORED WITHIN SIX (6) MONTHS,
AND NOTIFY COMPANY OF SAID DETERMINATION. IF PIMSA DETERMINES THAT THE LEASED
PROPERTY CANNOT BE RESTORED WITHIN SIX (6) MONTHS, EITHER PIMSA OR COMPANY
SHALL HAVE THE RIGHT AND OPTION TO IMMEDIATELY TERMINATE THIS LEASE
AGREEMENT, BY ADVISING THE OTHER THEREOF BY WRITTEN NOTICE. IF PIMSA
DETERMINES THAT THE LEASED PROPERTY CAN BE RESTORED WITHIN SAID SIX (6)
MONTHS, PIMSA SHALL, AT ITS OWN EXPENSE, TO THE EXTENT OF THE FUNDS AWARDED
TO PIMSA FROM THE PROCEEDS OF THE INSURANCE REQUIRED UNDER CLAUSE VII
HEREINABOVE,
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PROCEED DILIGENTLY TO RECONSTRUCT PIMSA'S IMPROVEMENTS, AND IN SUCH EVENT,
PIMSA SHALL ACCEPT IN LIEU OF RENT DURING THE PERIOD WHEN COMPANY IS
SUBSTANTIALLY DEPRIVED OF THE USE OF THE LEASED PROPERTY ANY RENTAL INSURANCE
PROCEEDS WHICH MAY BE PAYABLE PURSUANT TO RENTAL INSURANCE PROVIDED FOR
HEREINABOVE.
B. PARTIAL. IN THE EVENT THE SAID DAMAGE CAUSED TO THE LEASED PROPERTY
DOES NOT PREVENT COMPANY FROM CONTINUING THE NORMAL OPERATION OF ITS BUSINESS
ON THE LEASED PROPERTY, PIMSA AND COMPANY SHALL REPAIR SAID DAMAGE, EACH
PARTY RECONSTRUCTING THAT PORTION OF THE BUILDING AND INTERIOR INSTALLATIONS
FOR WHICH IT WAS RESPONSIBLE DURING THE ORIGINAL CONSTRUCTION; PROVIDED THAT
EXCLUDING DAMAGE OR DESTRUCTION TO THE PARKING LOT DURING THE PERIOD REQUIRED
FOR SUCH REPAIR WORK OF PIMSA'S IMPROVEMENTS OR THE IMPROVEMENTS, RENTAL
PAYABLE HEREUNDER BY COMPANY SHALL BE EQUITABLY PRORATED TO THE PROPORTIONED
INTERFERENCE WITH COMPANY'S USE AND POSSESSION OF THE LEASED PROPERTY
OCCASIONED BY SUCH DAMAGE AND REPAIR, AND IN SUCH EVENT, PIMSA SHALL ACCEPT
IN LIEU OF THE EQUITABLY PRORATED RENT PAYABLE HEREUNDER, DURING THE PERIOD
WHEN COMPANY IS PARTIALLY DEPRIVED OF THE USE AND POSSESSION OF THE LEASED
PROPERTY, ANY RENTAL INSURANCE PROCEEDS ATTRIBUTABLE TO RENT WHICH MAY BE
PAYABLE PURSUANT TO SAID INSURANCE PROVIDED FOR HEREINABOVE.
XVI. LIMITATION OF LIABILITY.
EXCEPT FOR INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS OF PIMSA, ITS
AGENTS OR EMPLOYEES, PIMSA SHALL NOT BE LIABLE TO COMPANY OR TO ANY OTHER
PERSON WHATSOEVER FOR ANY LOSS OR DAMAGE OF ANY KIND OR NATURE CAUSED BY THE
INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS OF COMPANY OR OTHER OCCUPANTS OF
THE INDUSTRIAL PARK OR OF ADJACENT PROPERTY, OR THE PUBLIC, OR OTHER CAUSES
BEYOND THE CONTROL OF PIMSA, INCLUDING BUT NOT LIMITED TO, ANY FAILURE TO
FURNISH, OR ANY INTERRUPTION OF ANY UTILITY OR OTHER SERVICES IN OR ABOUT THE
LEASED PROPERTY. COMPANY RECOGNIZES THAT ADDITIONS, REPLACEMENTS, AND REPAIRS
TO THE INDUSTRIAL PARK WILL BE MADE FROM TIME TO TIME, PROVIDED THAT THE SAME
SHALL NOT SUBSTANTIALLY INTERFERE WITH COMPANY'S USE AND ENJOYMENT OF THE
LEASED PROPERTY.
XVII. INDEMNIFICATION.
COMPANY AGREES TO INDEMNIFY AND SAVE PIMSA HARMLESS FROM ANY AND ALL
CLAIMS FOR DAMAGES OR LOSSES OF ANY NATURE WHATSOEVER, ARISING FROM NEGLIGENT
ACT OR OMISSION OF COMPANY OR ITS CONTRACTORS, LICENSEES, AGENTS, INVITEES,
OR EMPLOYEES, OR ARISING FROM ANY ACCIDENT, INJURY OR DAMAGE WHATSOEVER
CAUSED TO ANY PERSON OR PROPERTY OCCURRING IN OR ABOUT THE
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LEASED PROPERTY, OR THE AREAS ADJOINING THE LEASED PROPERTY AND FROM AND
AGAINST ALL COSTS AND EXPENSES, INCLUDING ATTORNEYS' FEES, INCURRED THEREBY.
PIMSA INDEMNIFIES AND HOLDS COMPANY HARMLESS FROM ANY INJURY OR DAMAGE
TO COMPANY OR ITS AGENTS OR EMPLOYEES AND FROM ANY AND ALL LIABILITY FOR
INJURY TO THIRD PERSONS OR DAMAGE TO THE PROPERTY OF THIRD PERSONS WHILE
LAWFULLY UPON THE LEASED PROPERTY OCCURRING BY REASON OF ANY NEGLIGENT ACT OR
OMISSION OF PIMSA, ITS CONTRACTORS, LICENSEES, INVITEES, AGENTS OR EMPLOYEES.
XVIII. NOTICES.
ALL NOTICES UNDER THIS LEASE AGREEMENT SHALL BE FORWARDED TO THE
ADDRESSES MENTIONED IN THE RECITALS ABOVE, WITH A COPY TO THE GUARANTOR OF
THIS LEASE AGREEMENT, OR SUCH OTHER ADDRESSES AS MAY FROM TIME TO TIME BE
FURNISHED BY THE PARTIES HERETO. SAID NOTICES SHALL BE IN WRITING AND IF
MAILED, SHALL BE DEEMED GIVEN TEN (10) DAYS AFTER THE DATE OF MAILING
THEREOF. DUPLICATE NOTICES SHALL BE SENT BY CERTIFIED AIRMAIL, POSTAGE
PREPAID, TO SUCH ADDITIONAL ADDRESSES AS MAY FROM TIME TO TIME BE REQUESTED
IN WRITING BY THE PARTIES HERETO.
XIX. COMPANY'S DEFAULT.
A. EACH OF THE FOLLOWING SHALL BE A DEFAULT OF COMPANY.
1. VACATION OR ABANDONMENT OF LEASED PROPERTY.
2. FAILURE TO PAY ANY INSTALLMENT OF RENT DUE AND PAYABLE HEREUNDER
UPON THE DATE WHEN SAID PAYMENT IS DUE, SAID FAILURE CONTINUING FOR A PERIOD
OF TEN (10) DAYS.
3. DEFAULT IN THE PERFORMANCE OF ANY OF COMPANY'S COVENANTS,
AGREEMENTS OR OBLIGATIONS HEREUNDER, SAID DEFAULT, EXCEPT DEFAULT IN THE
PAYMENT OF ANY INSTALLMENT OF RENT, CONTINUING FOR FIFTEEN (15) DAYS AFTER
WRITTEN NOTICE THEREOF IS GIVEN FROM PIMSA TO COMPANY;
4. A GENERAL ASSIGNMENT BY COMPANY FOR THE BENEFIT OF CREDITORS;
5. THE FILING OF A VOLUNTARY PETITION IN BANKRUPTCY BY COMPANY OR
THE FILING OF AN INVOLUNTARY PETITION BY COMPANY'S CREDITORS, SAID PETITION
REMAINING UNDISCHARGED FOR A PERIOD OF NINETY (90) DAYS.
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6. THE APPOINTMENT OF A RECEIVER TO TAKE POSSESSION OF
SUBSTANTIALLY ALL OF COMPANY'S ASSETS OR OF THIS LEASEHOLD, SAID RECEIVERSHIP
REMAINING UNDISCHARGED FOR A PERIOD OF (90) DAYS.
7. ATTACHMENT, EXECUTION OR OTHER JUDICIAL SEIZURE OF SUBSTANTIALLY
ALL OF COMPANY'S ASSETS OR THIS LEASEHOLD, SUCH ATTACHMENT, EXECUTION OR
OTHER SEIZURE REMAINING UNDISMISSED OR UNDISCHARGED FOR A PERIOD OF NINETY
(90) DAYS AFTER THE LEVY HEREOF.
B. IN ADDITION TO THE ABOVE, EACH OF THE FOLLOWING SHALL BE CONSIDERED
A DEFAULT OF THE COMPANY, IF THERE IS IN RESPECT TO GUARANTOR:
1. A GENERAL ASSIGNMENT BY GUARANTOR FOR THE BENEFIT OF CREDITORS;
2. THE FILING OF A VOLUNTARY PETITION IN BANKRUPTCY BY GUARANTOR
OR THE FILING OF AN INVOLUNTARY PETITION BY GUARANTOR'S CREDITORS, SAID
PETITION REMAINING UNDISCHARGED FOR A PERIOD OF NINETY (90) DAYS;
3. THE APPOINTMENT OF A RECEIVER TO TAKE POSSESSION OF
SUBSTANTIALLY ALL OF GUARANTOR'S ASSETS OR OF THIS LEASEHOLD, SAID
RECEIVERSHIP REMAINING UNDISSOLVED FOR A PERIOD OF NINETY (90) DAYS OR;
4. ATTACHMENT, EXECUTION OR OTHER JUDICIAL SEIZURE OF
SUBSTANTIALLY ALL OF GUARANTOR'S ASSETS OR THIS LEASEHOLD, SUCH ATTACHMENT,
EXECUTION OR OTHER SEIZURE REMAINING UNDISMISSED OR UNDISCHARGED FOR A PERIOD
OF NINETY (90) DAYS AFTER THE LEVY THEREOF.
C. UPON OCCURRENCE OF ANY ONE OF THE FOREGOING DEFAULTS, PIMSA SHALL
HAVE THE RIGHT, AT ITS OPTION, AND IN ADDITION TO OTHER RIGHTS OR REMEDIES
GRANTED BY LAW, INCLUDING THE RIGHT TO CLAIM DAMAGE, TO DO EITHER OF THE
FOLLOWING:
1. IMMEDIATELY RESCIND THIS LEASE AGREEMENT AND EJECT COMPANY FROM
THE LEASED PROPERTY.
2. CLAIM SPECIFIC PERFORMANCE. IN THE CASE OF DEFAULT AS SPECIFIED
ABOVE, PIMSA SHALL, IN ADDITION TO ALL OTHER REMEDIES, HAVE THE RIGHT TO
DECLARE THE ENTIRE UNPAID BALANCE OF RENT TO THE END OF THE SEVENTY SEVEN
(77) MONTH LEASE TERM THEN IN EFFECT, AND ALL OTHER SUMS DUE TO PIMSA,
IMMEDIATELY DUE AND PAYABLE, PLUS INTEREST AT THE RATE OF TWENTY PERCENT
(20%) PER ANNUM OF SAID SUMS FROM THE DATE OF SUCH DECLARATION UNTIL PAYMENT
IN FULL, PROVIDED THAT PIMSA SHALL DILIGENTLY PROCEED TO LEASE THE LEASED
PROPERTY TO
17
ANOTHER TENANT OR OTHERWISE MAKE BENEFICIAL USE THEREOF IN MITIGATION OF
DAMAGES, RENT AND ALL OTHER SUMS DUE OR PAYABLE TO PIMSA.
IN THE EVENT THE LEASED PROPERTY IS LEASED TO ANOTHER TENANT
DURING THE AFORESAID SEVENTY SEVEN (77) MONTH LEASE TERM OR OTHERWISE USED
IN A BENEFICIAL MANNER:
a. PIMSA SHALL PROMPTLY REFUND TO COMPANY THAT PORTION OF RENT
AND INTEREST PAID BY COMPANY PURSUANT TO THIS PARAGRAPH 2. WHICH IS ALLOCABLE
TO THE PERIOD OF THE LEASE TERM DURING WHICH THE LEASED PROPERTY WAS LEASED
TO ANOTHER TENANT OR OTHERWISE USED IN A BENEFICIAL MANNER AS WELL AS ANY
OTHER ALLOCABLE SUMS PAID BY COMPANY TO PIMSA, LESS ANY LOSS OR DAMAGE
INCURRED BY PIMSA AS A RESULT OF COMPANY'S DEFAULT, OR;
b. IF SUCH RENT OR OTHER SUMS HAVE NOT BEEN PAID BY COMPANY TO
PIMSA, PIMSA SHALL CREDIT SUCH AMOUNT(S) TO COMPANY.
XX. RIGHT TO CURE DEFAULTS.
IN THE EVENT OF COMPANY'S BREACH OR DEFAULT OF ANY TERM OR PROVISION
HEREIN, PIMSA MAY, WITHOUT ANY OBLIGATION TO DO SO, AT ANY TIME AFTER TEN
(10) DAYS WRITTEN NOTICE, CURE SUCH BREACH OR DEFAULT, OR MAKE REPAIRS TO THE
LEASED PROPERTY, FOR THE ACCOUNT AND AT THE EXPENSE OF COMPANY. IF PIMSA, BY
REASON OF SUCH BREACH OR DEFAULT, PAYS ANY MONEY, OR IS COMPELLED TO INCUR ANY
EXPENSE, INCLUDING ATTORNEYS' FEES, THE SUMS SO PAID OR INCURRED BY PIMSA
WITH ALL INTEREST, COSTS, AND DAMAGES, SHALL BE PAID BY COMPANY TO PIMSA ON
THE FIRST (1ST) DAY OF THE MONTH FOLLOWING THE INCURRING OF SUCH EXPENSES. IF
ANY INSTALLMENT OF RENT OR ANY OTHER PAYMENT IS NOT PROMPTLY PAID WHEN DUE,
IT SHALL BEAR INTEREST OF TWENTY (20%) PER ANNUM FROM THE DATE ON WHICH IT
BECOMES DUE UNTIL PAID; BUT THIS PROVISION IS NOT INTENDED TO RELIEVE THE
COMPANY FROM FULFILLING ITS OBLIGATIONS HEREUNDER IN THE TIME AND IN THE
MANNER SPECIFIED IN THIS AGREEMENT. THE FOREGOING INTEREST, EXPENSES AND
DAMAGES SHALL BE RECOVERABLE FROM COMPANY BY EXERCISE OF PIMSA'S REMEDIES
HEREINABOVE SET FORTH. EFFORTS BY PIMSA TO MITIGATE THE DAMAGES CAUSED BY
COMPANY'S BREACH OF THIS LEASE SHALL NOT BE CONSTRUED TO BE A WAIVER OF
PIMSA'S RIGHT TO RECOVER DAMAGES UNDER THIS CLAUSE XX. NOTHING IN THIS
CLAUSE XX AFFECTS THE RIGHT OF PIMSA TO INDEMNIFICATION BY COMPANY IN
ACCORDANCE WITH CLAUSE XVII HEREINABOVE FOR LIABILITY ARISING PRIOR TO THE
TERMINATION OF THIS LEASE FOR PERSONAL INJURIES OR PROPERTY DAMAGE.
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XXI. WAIVER.
In the event PIMSA or COMPANY does not compel the other to comply with
any of the obligations hereunder, such action or omission shall not be
construed as a waiver of a subsequent breach of the same or any other
provision. Any consent or approval shall not be deemed to waive or render
unnecessary the consent or approval of any subsequent or similar act by
COMPANY or PIMSA.
XXII. CERTIFICATES.
COMPANY shall, within ten (10) days of receipt of a written request made
by PIMSA, deliver to PIMSA a statement in writing certifying that this Lease
Agreement is unmodified and in full force and effect (or if there have been
modifications, that the same are in full force and effect as modified); the
dates to which the rent and any other charges have been paid in advance, and
that PIMSA'S Improvements have been satisfactorily completed. It is intended
that any such statement may be relied upon by any person, prospective
purchaser, or lending institution interested in the Leased Property.
XXIII. HOLDING OVER.
If COMPANY should remain in possession of the Leased Property after the
expiration of this Lease, COMPANY shall pay a minimum monthly rent equal to
twice the then minimum monthly rent then paid in the month immediately
preceding the month in which the holdover period began until COMPANY has
delivered to PIMSA the Leased Property, or executed a new Lease Agreement.
This provision shall not be construed as granting any right to COMPANY to
remain in possession of the Leased Property after the expiration of the Lease
Term. COMPANY shall indemnify PIMSA against any loss or liability resulting
from delay by COMPANY in surrendering the Leased Property, if such loss or
liability is founded on said delay, less any amounts paid pursuant to this
clause. The parties agree that COMPANY shall quit and surrender the Leased
Property at the expiration of this Lease Agreement, waiving the right
provided by law.
XXIV. SURRENDER.
A. On the last day of the term of this Lease Agreement, or the sooner
termination thereof pursuant to other provisions hereof, COMPANY shall quit
and surrender the Leased Property in the same conditions as received by
COMPANY, and restore the premises to a clean and good condition (normal
19
wear and tear excepted) together with PIMSA's Improvements that may have been
made in the same. Prior to termination of this Lease Agreement, COMPANY shall
have removed all of its property in accordance with Clause III hereof and all
property not removed shall be deemed abandoned by COMPANY. COMPANY shall
repair and restore the Leased Property to a good and clean condition, normal
wear and tear excepted, while removing the COMPANY's property.
XXV. QUIET ENJOYMENT.
PIMSA agrees that COMPANY, upon paying the rent and all other charges
provided for herein and upon complying with all of the terms and provisions
of this Lease Agreement, shall lawfully and quietly occupy and enjoy the
Leased Property during the Lease Term.
XXVI. ATTORNMENT.
COMPANY shall, in the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage or deed of trust made by PIMSA, its successors or assigns,
encumbering the Leased Property, or any part thereof, if so requested, attorn
to the purchaser upon such foreclosure or sale and recognize such purchaser
as the lessor under this Lease.
XXVII. ENVIRONMENTAL PROTECTION LAW.
PIMSA hereby states that the Leased Property, its soil and underground are
free and clear of any hazardous materials, wastes or contaminants.
Nevertheless, PIMSA shall indemnify and save the COMPANY harmless from and
against losses, demands, claims, payments, suits, actions and judgments of
any nature and description brought against it by reason of the fact that
contaminants existed on the Leased Property, soil and/or underground, or were
deposited there, prior to date of signature of this Agreement. The COMPANY
will be responsible for any losses, damages or injuries caused by the
contaminants which are deposited on the Leased Property, soil or underground
after date of signature of this Agreement.
It will be the sole responsibility of the COMPANY to comply with all
Federal, State or Municipal environmental laws, rules and dispositions, which
must be complied with by the COMPANY pursuant with the industrial activities
it will perform in the Leased Property and therefore, must obtain the
required licenses, authorizations, permits and any other document that it
must possess pursuant with the aforestated environmental rules.
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Furthermore, the COMPANY will be solely and exclusively responsible for
any demand, claim, or proceeding initiated against PIMSA, and which results
from acts or omissions by the COMPANY, regarding the handling of hazardous or
toxic materials or wastes located in or moved to, from or through the Leased
Property. The COMPANY in these cases, shall indemnify and save PIMSA harmless
from and against losses, demands, claims, payments, suits, actions and
judgments of any competent environmental authority.
XXVIII. MISCELLANEOUS
A. This document contains all of the agreements and conditions made
between the parties, and may not be modified orally in any manner other than
by a written agreement signed by the authorized representative of the parties.
B. If any term, covenant, condition or provision of this Lease
Agreement, or the application thereof to any person or circumstance, shall to
any extent be held by a court of competent jurisdiction, to be invalid, void
or unenforceable, the remainder of the terms, covenants, conditions or
provisions of this Lease Agreement, or the application thereof to any person
or circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
C. In the event that either party should bring an action against the
other party for the possession of the Leased Property, or for the recovery of
any sum due hereunder, or because of the breach or default of any
covenant in this Lease Agreement, the prevailing party shall have the right
to collect from the other party its costs and expense, including attorneys'
fees.
D. Every payment and performance required by this Lease Agreement,
shall be paid and performed precisely on the date specified for such for such
payment or performance and no delay or extension thereof shall be permitted.
E. The titles and subtitles in these clauses of this document shall
have no effect on the interpretation of the terms and provisions contained in
this Lease Agreement.
F. The parties agree that this Lease Agreement be governed by the Laws
of the State of Baja California. For everything pertaining to the
interpretation and compliance of this Lease Agreement the parties thereby
expressly submit to the jurisdiction of the Civil Courts of the City of
Mexicali, State of Baja California, waiving any other jurisdiction which
might be applicable by reason of their present or future domiciles or
otherwise.
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G. This Lease Agreement shall be executed in Spanish and English.
However, in the event a dispute or other inconsistency should arise
regarding interpretation or meaning of this Lease Agreement, the English
version shall control.
H. Whenever the prior consent of either party, written or otherwise, is
required as a condition for any act by the other party under this Lease
Agreement, such party agrees not to arbitrarily or unreasonably withhold such
consent.
I. Each party shall execute such further documents as shall be
requested by the other party, but only to the extent that the effect of said
documents is to give legal effect to rights set forth in the Lease Agreement.
J. COMPANY hereby covenants to PIMSA, and PIMSA relies upon said
covenant as a material inducement to enter into this Lease, that COMPANY
will deliver to PIMSA, concurrently with the execution and delivery hereof a
Guaranty of this Lease in the form attached hereto as EXHIBIT "D", executed
by, COASTCAST CORPORATION, or by such other Guarantor as may be acceptable to
PIMSA.
K. Submission of this instrument for examination or signature by
COMPANY does not constitute a reservation of or option to Lease, and it is
not effective as a Lease or otherwise until execution and delivery by both
PIMSA and COMPANY.
L. This Lease and each of its covenants and conditions shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the provisions hereof.
Whenever in this Lease Agreement a reference is made to PIMSA, such reference
shall be deemed to refer to the person in whom the interest of the lessor
hereunder shall be vested. Any successor or assignee of COMPANY who accepts
an assignment or the benefit of this Lease Agreement and enters into
possession or enjoyment hereunder shall thereby assume and agree to perform
and be bound by the covenants and conditions thereof.
M. In the event the Government of Mexico or any subdivision thereof
appropriates, forcibly buys or in any other way takes over the assets or
business of the lessee, and without due cause by COMPANY prevents COMPANY
from doing business in Mexico, the COMPANY may upon written notice to PIMSA
terminate this Lease Agreement without liability or penalty for such
termination and without further liability for
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rental payments due under this Lease Agreement but without prejudice to the
rights of PIMSA and COMPANY to claim from the corresponding authority the
damages caused.
XXIX. Rider number I, PIMSA's Improvements, is attached hereto and by this
reference made a part hereof.
XXX. This Lease Agreement is in lieu of Lease Agreement dated January 22,
1996.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the
tenth day of december nineteen hundred ninety nine.
"PIMSA" "COMPANY"
/s/ Eduardo Manuel Martinez Palomera /s/ William Lawrence Osborn
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PARQUE INDUSTRIAL MEXICALI, COASTCAST CORPORATION, S.A.
S.A. DE C. V. Mr. William Lawrence Osborn
Mr. Eduardo Manuel Martinez General Director of Operations
Palomera and General Manager
Executive Vice President
W I T N E S S E S
/S/ ILLEGIBLE /S/ Hans H. Buehler
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23
RIDER NUMBER 1
TO LEASE AGREEMENT BETWEEN
PARQUE INDUSTRIAL MEXICALI, S.A. DE C.V.
AND
COASTCAST CORPORATION, S.A.
PIMSA'S NUMBERS
The following improvements will be included in this Lease Agreement:
1. 300 kva electrical substation.