CONSENT AND COVENANT OF MASTER LESSOR
TO: LAUREL LEASING, INC., a Texas corporation ("Laurel");
CAMELBACK AUTOMOTIVE, INC., an Arizona corporation ("Camelback
Automotive"); and
LRP, LTD., an Arizona corporation dba "Land Rover Phoenix" ("LRP")
DATED: August 18, 1995
The undersigned ("Master Lessor"), as the owner of the real property
located at 1127 East Camelback Road, Phoenix, Arizona (the "Premises"), and as
the lessor under that certain "Lease" of the Premises to Laurel dated August 11,
1989 (the "Master Lease"), hereby consents, acknowledges, covenants and agrees
with Laurel, Camelback and LRP as follows:
(A) The Master Lease has been amended so as to extend the term
thereof through August 31, 2005, with an option to further
extend the term thereof for a period of five (5) additional
years
(B) Master Lessor has previously consented to the sublease of
the Premises by Laurel to Camelback Automotive;
(C) Master Lessor hereby consents to and approves of the sublease
of the Premises by Camelback Automotive to LRP on the terms of
that certain "Sublease Agreement" to be entered into by and
between Camelback Automotive and LRP (the "Sublease"), an
unsigned copy of which is attached hereto as Exhibit "A";
(D) Master Lessor agrees that it will give LRP prompt written
notice of any breach of the Master Lease and further agrees
that it will accept any cure, in payment of money or
otherwise, offered or performed by LRP as if such cure were
offered or performed by Laurel or Camelback Automotive;
(E) Provided that LRP is not in beach of the terms and
conditions of the Sublease, Master Lessor shall not
directly or indirectly interfere with LRP's quiet enjoyment
of the Premises, regardless of whether Laurel is in default
under the Master Lease and regardless of whether the Master
Lease continues or is terminated, and, if the Master Lease
is terminated, Master Lessor will abide by the terms of the
Sublease; and
(F) Master Lessor acknowledges that Laurel, Camelback Automotive
and LRP are entering into the Sublease in reliance upon the
consents, covenants and
agreements given and made herein by Master Lessor and Master
Lessor agrees that Laurel, Camelback Automotive and LRP, and
each entity's respective successors and assigns, may, in fact,
so rely on such consents, covenants and agreements.
MARYLAND INVESTMENTS, INC.,
an Arizona corporation
By /s/ Illegible
--------------------------
Its President
--------------------------
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EXHIBIT "A"
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is made effective as of the 1st day of July,
1995, by and between CAMELBACK AUTOMOTIVE, INC., an Arizona corporation
("Sublessor"), whose address is 14032 North Canterbury Drive, Phoenix, Arizona
85023, and LRP, LTD., an Arizona corporation dba "Land Rover Phoenix"
("Sublessee"), whose address is 1127 East Camelback Road, Phoenix, Arizona
85014, with reference to the following facts:
RECITALS:
A. Sublessor is currently subleasing the real property located at
1127 East Camelback Road, Phoenix, Arizona, more particularly
described on Exhibit "A" attached hereto and incorporated herein
by this reference (the "Premises) from LAUREL LEASING, INC., a
Texas corporation ("Laurel"), subject to, and pursuant to the
terms and conditions of, that certain Lease (the "Master Lease)
dated August 11, 1989. by and between Laurel and MARYLAND
INVESTMENTS, INC., an Arizona corporation ("Master Lessor"). A
copy of the Master Lease is attached hereto as Exhibit "B" and by
this reference incorporated herein.
B. Sublessee desires to sublease the Premises from Sublessor, and
Sublessor desires to sublease the Premises to Sublessee, on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
covenant and agree as follows:
AGREEMENTS:
1. SUBLEASE. Subject to all the terms and conditions of this Sublease
Agreement, Sublessor hereby subleases the Premises to Sublessee and Sublessee
hereby subleases the Premises from Sublessor. As hereinafter used in this
Sublease Agreement, the term "Sublease" shall mean the tenancy of Sublessee
under this Sublease Agreement.
2. MASTER LEASE; RIGHTS AND OBLIGATIONS OF PARTIES. The Sublease shall be
subordinate and subject to all of the terms, conditions and covenants of the
Master Lease and Sublessor and Sublessee hereby incorporate and adopt such
terms, conditions and covenants as the governing terms, conditions and covenants
of this Sublease Agreement. The Master Lease shall not be amended hereafter so
as to adversely affect or limit any rights or
benefits of Sublessee hereunder without the prior written consent of Sublessee.
Except as provided to the contrary herein, Sublessor shall have the same rights
and obligations as the "Landlord" under the Master Lease and Sublessee shall
have the same rights and obligations as the "Tenant" under the Master Lease.
Upon demand of Sublessee, Sublessor shall take whatever reasonable actions are
necessary under the Master Lease with respect to the Master Lessor in order to
aid Sublessee in exercising such rights. In addition to those limitations of
Sublessee's rights and obligations stated elsewhere in this Sublease Agreement,
the parties expressly agree that, notwithstanding anything to the contrary
contained herein, (i) this Sublease Agreement does not obligate Sublessee to pay
the monthly rental due to the Master Lessor under the Master Lease, (ii) this
Sublease Agreement does not entitle Sublessee to exercise any of the rights of
Sublessor as the "Tenant" under Section 3 of the Master Lease, (iii) the
Sublease Agreement does not entitle Sublessee to receive the benefits of the
application by Master Lessor of the deposit described in Section 5 of the Master
Lease, and (iv) Sublessee shall not be responsible or obligated in any way for
any breach of the Master Lease prior to the date hereof or for any event or
condition with respect to the Premises which has occurred or exists on the date
hereof. With respect to Section 3 of the Master Lease, Sublessor agrees to pass
on to Sublessee any information made known to Sublessor regarding the
availability of the "Parcels" (as defined in the Master Lease) and shall
otherwise reasonably cooperate with Sublessee in the event that Sublessee
desires to lease one or more of the Parcels directly from Master Lessor, but
Sublessor shall have no obligation to lease any Parcel for the purpose of
subleasing it to Sublessee.
3. TERM; EXTENSION; EARLY TERMINATION.
(A) The Sublease shall commence on the date set forth above (the "Sublease
Commencement Date") and shall continue for a period of ten (10) years (the
"Initial Term"), unless extended or earlier terminated as herein provided.
Provided Sublessee is not in default under the terms of this Sublease Agreement,
Sublessee may extend the term of this Sublease for one (1) period of five (5)
years (the "Extension Term") by giving written notice to that effect to
Sublessor not later than one hundred eighty (180) days prior to the expiration
of the Initial Term. As hereinafter used in this Sublease Agreement, the term
"Sublease Term" shall include both the Initial Term and the Extension Term.
(B) Notwithstanding the foregoing, Sublessee may give written notice to
Sublessor of an intent to terminate the Sublease prior to the expiration of the
Sublease Term, whereupon the Sublease shall terminate on the date which is one
hundred and eighty (180) days after Sublessor's receipt of said notice or on
such later date, if any, specified in said notice.
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(C) In addition to the early termination rights set forth in Paragraphs
3(B) and 3(D) hereof, Sublessee may terminate the Sublease if, after diligent
efforts, Sublessee fails to obtain the necessary approvals for the location of
Sublessee's dealership at the Premises from both Land Rover North America, Inc.,
and the Arizona State Department of Motor Vehicles. Such termination shall be
accomplished by Sublessee giving written notice to Sublessor on or before
October 1, 1995. If Sublessee terminates the Sublease after September 1,1995,
Sublessee shall not be entitled to a refund of any part of its September rent
payment and to the extent such rent payment has not yet been made by Sublessee
at the time of such termination Sublessee shall immediately make the same.
(D) In addition to early termination rights set forth in Paragraphs 3(B),
3(C) and 3(D) hereof, Sublessee may terminate the Sublease if the Master Lessor
does not give its written consent to the alterations and additions to the
Premises desired by Sublessee and approved by Land Rover North America, Inc.
within fifteen (15) days after such consent is requested in writing by
Sublessee.
(E) Upon early termination of the Sublease pursuant to either Paragraph
3(B) or 3(C) hereof, this Sublease Agreement shall be of no further force or
effect (other than those indemnification obligations set forth in Paragraphs 11
and 15 hereof) and all leasehold improvements to the Premises made by Sublessee
shall remain as part of the Premises. Sublessee shall remove all personal
property and trade fixtures of Sublessee from the Premises upon or prior to the
date of early termination.
4. USE. Sublessee may use the Premises for the operation of an automobile
dealership pursuant to which Sublessee may (i) conduct new and used vehicle
sales and leasing, (ii) perform vehicle maintenance and repairs, and (iii)
conduct and/or perform any other activities ancillary thereto and customarily
associated therewith. Sublessee at no time shall violate any use provision of
the Master Lease or any requirement or demand of any governmental agency or
official with respect to the condition, use and occupancy of the Premises,
except that Sublessee shall not be responsible for any conditions or violations
in existence prior to the date hereof.
5. MONTHLY RENTAL; LATE FEE; CPI ADJUSTMENT PERCENTAGE.
(A) On or before the first (1st) day of each and every month of the
Sublease Term, Sublessee shall pay to Sublessor the sums set forth in this
Paragraph 5(A) as monthly rental for the Premises. Sublessee shall make such
payments without deduction or offset and, except as specifically hereinafter set
forth, without the requirement of demand or notice by Sublessor. Sublessee shall
mail or hand deliver such payments to Sublessor at the address set forth on page
1 of this Sublease Agreement, or
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at such other address designated in writing by Sublessor. The monthly rental
amounts are as follows:
(i) Months one (1) and two (2) of the Initial Term - $0.00;
(ii) Month three (3) of the Initial Term - $6,000.00;
(iii) Month four (4) of the Initial Term - $8,000.00;
(iv) Months five (5) through sixty (60) of the Initial Term -
$12,000.00;
(v) Months sixty-one (61) through eighty-four (84) of the Initial
Term - $12,000.00 multiplied by the CPI Adjustment Percentage (as
defined in Paragraph 5(B) hereof) for the period commencing with
the Sublease Commencement Date and ending with the end of the
sixtieth (60th) month of the Initial Term, with a maximum CPI
Adjustment Percentage of one hundred twelve percent (112%);
(vi) Months eighty-five (85) through one hundred eight (108) of the
Initial Term - the monthly rent payable during months
sixty-one (61) through eighty-four (84) of the Initial Term
multiplied by the CPI Adjustment Percentage for the period
commencing with the end of the sixtieth (60th) month of the
Initial Term and ending with the end if the eighty-fourth (84)
month of the Initial Term, with a maximum CPI Adjustment
Percentage of one hundred five percent (105%);
(vii) Months one hundred nine (109) through one hundred twenty (120)
of the Initial Term - the monthly rent payable during months
eighty-five (85) through one hundred eight (108) of the
Initial Term multiplied by the CPI Adjustment Percentage for
the period commencing with the end of the eighty-fourth (84th)
month of the Initial Term and ending with the end of the one
hundred eighth (108th) month of the Initial Term, with a
maximum CPI Adjustment Percentage of one hundred two and
one-half percent (102.5%);
(viii) Months one (1) through twelve (12) of the Extension Term - the
monthly rent payable during months one hundred eight (108)
through one hundred twenty (120) of the Initial Term;
(ix) Months thirteen (13) through thirty-six (36) of the Extension
Term - the monthly rent payable during months one (1) through
twelve (12) of the Extension Term multiplied by the CPI
Adjustment Percentage for the period commencing with the end
of the one hundred eighth (108th) month of the Initial Term
and ending with the end of the twelfth (12th) month of the
Extension Term, with a maximum CPI Adjustment Percentage of
one hundred seven and one-half percent (107.5%); and
(x) Months thirty-seven (37) through sixty (60) of the Extension
Term - the monthly rent payable during months thirteen (13)
through thirty-six (36) of the
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Extension Term multiplied by the CPI Adjustment Percentage for
the period commencing with the end of the twelfth (12th) month of
the Extension Term and ending with the end of the thirty-sixth
(36th) month of the Extension Term, with a maximum CPI Adjustment
Percentage of one hundred five percent (105%).
During any period in which the monthly rental payment is affected by the CPI
Adjustment Percentage, Sublessee shall continue making monthly rental payments
in the previous amount until Sublessor gives written notice to Sublessee of the
pertinent CPI Adjustment Percentage and the corresponding new monthly rental.
Upon receipt of said notice from Sublessor, Sublessee shall immediately pay any
increase in monthly rental due but not paid during the months prior to receiving
said notice and shall thereafter commence paying the adjusted monthly rental in
accordance with the terms hereof. Any payment of monthly rental which is not
received by Sublessor within ten (10) days of its due date shall be subject to a
five percent (5%) late fee payable upon demand by Sublessor.
(B) The term "CPI Adjustment Percentage" shall mean the CPI-U (as defined
below) at any given point in time stated as a percentage of the CPI-U at any
previous point in time and shall be a means of measuring the increase, if any,
of the CPI-U over a specified period of time. By way of example, the CPI
Adjustment Percentage for the period commencing with the Sublease Commencement
Date and ending with the end of the sixtieth (60th) month of the Sublease Term
shall be determined as follows:
CPI Adjustment % = (CPI-U @ June 1, 2000 / CPI-U @ June 1, 1995) x 100%
The term "CPI-U" shall mean the "Consumer Price Index - Seasonally Adjusted U.S.
City Average for All Items for All Urban Consumers (1982-84=100)," published
monthly in the Monthly Labor Review of the Bureau of Labor Statistics of the
United States Department of Labor. ("CPI-U") for the first calendar month of the
Extension Term, and the denominator of which is the CPI-U for the first calendar
month of the Initial Term. If the CPI-U is discontinued, the "Consumer Price
Index - Seasonally Adjusted U.S. City Average for All Items for Urban Wage
Earners and Clerical Workers (1982-84=100)" ("CPI-W"), published monthly in the
Monthly Labor Review by the Bureau of Labor Statistics of the United States
Department of Labor shall be substituted therefor. If the CPI-W is discontinued,
comparable statistics on the purchasing power of the consumer dollar published
by the Bureau of Labor Statistics of the United States Department of Labor shall
be used for making such computation. If the Bureau of Labor Statistics shall no
longer maintain statistics on the purchasing power of the consumer dollar,
comparable statistics published by a responsible financial periodical or
recognized authority selected by Sublessor shall be used for making such
computation. If the base year ("1982-84=100") or other base year
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used in computing the CPI-U is changed, the figures used in making the
adjustment in this paragraph shall be changed accordingly so that all increases
in the CPI-U are taken into account notwithstanding any such change in the base
year. Notwithstanding any provision in this Sublease Agreement to the contrary,
in no event shall the monthly rental due for any period during the Sublease Term
be less than the monthly rental for any prior period.
6. PAYMENT OF MASTER LEASE RENTAL. Provided Sublessee pays the monthly
rental and other sums due under this Sublease Agreement in a timely fashion,
Sublessor shall pay the rent and other sums due under the Master Lease in
accordance with the terms thereof.
7. TAXES; UTILITIES. In addition to the monthly rental payments due
under this Sublease Agreement, during the Sublease Term Sublessee shall pay
to Sublessor, or directly to such other person or entity, as appropriate, the
following:
(i) All sales, transaction privilege or other excise taxes levied or
imposed upon or measured by any amount payable to Sublessor under
this Sublease Agreement simultaneously with the payment to which
the tax relates;
(ii) All real estate taxes and assessments payable by Sublessor as
"Tenant" under the terms of the Master Lease, prorated if the
taxes or assessments relate to periods during and before or after
the Sublease Term, provided that Sublessee shall not be obligated
to pay in full any assessments which may be paid in installments,
except to the extent the installments relate to the Sublease
Term;
(iii) All personal property taxes payable by Sublessor as "Tenant"
under the terms of the Master Lease, prorated if the taxes relate
to periods during and before or after the Sublease Term; and
(iv) All charges for utilities provided to the Premises and otherwise
payable by Sublessor as "Tenant" under the terms of the Master
Lease.
Notwithstanding the foregoing, Sublessee shall have the right to protest real
estate taxes as provided in Paragraph 8 of the Master Lease.
8. INSURANCE. Sublessee shall, at its own expense, obtain and maintain
throughout the Sublease Term those policies of property damage and public
liability insurance covering the Premises required by Sections 19 and 20 of the
Master Lease and shall further comply with each of the other requirements set
forth in the Master Lease having to do with such policies. All such policies
shall name Sublessor and Master Lessor as additional insureds.
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9. LEASEHOLD IMPROVEMENTS. During the Sublease Term, Sublessee hereby
covenants, at its sole cost and expense, to significantly remodel and upgrade
the existing facility constituting part of the Premises. In furtherance thereof,
Sublessee may make such alterations and additions to the Premises as Sublessee
desires, provided that:
(i) Such alterations and additions comply with all applicable
building codes and ordinances and the necessary permits
therefor are obtained in advance of any actual construction;
(ii) Sublessee procures and maintains adequate insurance coverage
against such risks, in such amounts and with such companies as
Sublessor may reasonably require in connection therewith;
(iii) The prior written consent to each alteration or addition is
obtained from Master Lessor by Sublessor; and
(iv) Sublessee takes any and all actions, including those specified in
the Master Lease, necessary to prevent the filing of any liens
against the Premises by contractors and material suppliers
involved in the construction of any such alterations and
additions.
10. REPRESENTATIONS AND WARRANTIES OF SUBLESSOR. Except as specifically
set forth herein, Sublessor makes no representations or warranties with respect
to the Premises, and Sublessee acknowledges that the Premises are being
subleased "As Is". Sublessee further acknowledges that Sublessee has had a full
and complete opportunity to examine the condition, maintenance and operation of
the Premises. In accordance with the foregoing, Sublessor represents and
warrants as follows:
(i) The copy of the Master Lease attached hereto as Exhibit "B" is a
true and complete copy of the Master Lease (except for the
economic terms thereof which have been blacked out), including
any and all amendments thereto, and the same is currently in full
force and effect with neither party thereto being in breach
thereof;
(ii) There are no underground storage tanks on the Premises;
(iii) As of the Sublease Commencement Date, the roof and windows are
free of defects and the heating, ventilation and air
conditioning systems are in good operating condition; and
(iv) To the best of Sublessor's knowledge, the Premises are in
compliance with the current standards of environmental quality
imposed by the Arizona Department of Environmental Quality.
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11. INDEMNIFICATION.
(A) Sublessee covenants that it will defend and will indemnify Sublessor
and save it harmless for, from and against any and all claims, actions,
liabilities and expenses in connection with any default under the terms and
conditions of the Master Lease caused by Sublessee and in connection with the
loss of life, personal injury, or damage to property or business arising from,
related to, or in connection with the occupancy or use by Sublessee of the
Premises or occasioned totally or in part by any act or omission of Sublessee,
its contractors, subcontractors, subtenants, licensees, or its or their
respective agents, servants or employees subject to Paragraph 11(B) hereof.
(B) Sublessor covenants that it will defend and will indemnify Sublessee
and save it harmless for, from and against any and all claims, actions,
liabilities and expenses arising out of or in any way related to the presence of
petroleum based, toxic or hazardous substances in, on, under or originating from
the Premises to the extent such condition was caused or allowed to occur by
Sublessor.
(C) The indemnification obligations contained in this Paragraph 11 shall
survive any termination or cancellation of this Sublease.
12. ROOF AND STRUCTURAL REPAIRS. Notwithstanding anything contained herein
to the contrary, Sublessor, at its expense, shall be responsible for all
structural and roof repairs and replacements reasonably required during the
Sublease Term to those improvements now existing on the Premises to the extent
such repairs or replacements are not covered by the insurance that Sublessee is
required to obtain and maintain pursuant to Paragraph 8 hereof. Sublessor shall
have no responsibility to repair or replace any roofs or structural portions of
any improvements to the extent the same have been modified or replaced by
Sublessee or if originally constructed by Sublessee.
13. NOTICES. All notices, demands or other writings required or allowed
under this Sublease Agreement shall be deemed to have been fully given when hand
delivered or two (2) days after being deposited in the United States mail,
certified or registered, postage prepaid, and addressed as set forth on page 1
of this Sublease Agreement. Either party may change its address for the receipt
of notice by giving written notice of such change to the other party in the
manner provided herein. A copy of any notice given to Sublessee shall be
simultaneously given to Sublessee's attorney, Stephen M. Savage, Fennemore
Craig, 2 North Central Avenue, Suite 2200, Phoenix, Arizona 85004, in the same
manner as required for notice to Sublessee.
14. SUBLEASE DEFAULT; REMEDIES. A "Sublease Default" shall occur
under this Sublease Agreement immediately upon the happening of any of the
following events:
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(i) the occurrence of an "Event of Default" (as that term is
defined in the Master Lease) resulting from the breach of an
obligation of the "Tenant" under the Master Lease which has
been assumed by Sublessee under this Sublease Agreement;
provided, however, that any grace and/or cure period available
to the "Tenant" under the Master Lease shall be shortened by
five (5) days for purposes of determining whether a Sublease
Default has occurred under this Sublease Agreement;
(ii) Sublessee's failure to pay the Sublease Rent within five (5)
business days after receipt of a written demand therefor; and
(iii) Sublessee's breach of any of the other terms and conditions of
this Sublease, which breach is not cured within fifteen (15)
days after written notice of such breach is received by
Sublessee; provided, however, that Sublessee shall be entitled
to such longer period of time as is reasonably necessary to
cure any breach not capable of cure within such fifteen (15)
day period if Sublessee commences to cure such breach within
said period and diligently prosecutes the cure to completion.
Upon the occurrence of a Sublease Default, Sublessor may avail itself of any
rights and remedies provided by law in addition to those rights and remedies
available to the "Landlord" under the terms of the master Lease. Should
Sublessor cure a breach by Sublessee under this Sublease Agreement so that an
Event of Default does not occur under the Master Lease, Sublessee shall
reimburse Sublessor for its reasonable costs in curing such breach within ten
(10) days after Sublessor delivers a demand for such reimbursement and
Sublessee's failure to so reimburse shall be a Sublease Default as described in
subparagraph (iii), above.
15. ASSIGNMENT AND SUBLETTING. Sublessee shall have the right to assign or
further sublet the Premises provided that (i) any such assignment or sublease is
expressly subject to this Sublease and the Master Lease, (ii) Sublessor is
provided with a copy of the proposed assignment or sub-sublease agreement at
least fifteen (15) days prior to the effective date thereof, and (iii) Sublessor
is able to obtain any necessary consents and approvals of Master Lessor under
the terms of the Master Lease.
16. BROKERAGE. Sublessor and Sublessee each warrants and represents to the
other than no real estate sales or brokerage commissions or like commissions are
or will be due from the other party in connection with this transaction.
Further, each party agrees to indemnify and hold harmless the other party from
and against any liability, loss, cost, damage or expense, including but not
limited to, court costs and reasonable attorney's fees, resulting from any
assertion of a right to a brokerage commission due to any act of the
indemnifying party.
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17. SUCCESSORS AND ASSIGNS. This Sublease Agreement shall be binding on
and inure to the benefit of all parties who lawfully succeed to the rights or
interests of either Sublessee or Sublessor, including, but not limited to
assigns, heirs or other legal representatives such as any executor or
administrator.
18. ATTORNEYS' FEES. In the event legal action is required in connection
with the enforcement or construction of this Sublease Agreement or any provision
hereof, the prevailing party in such action shall be entitled to payment of its
court costs and reasonable attorneys' fees.
19. ENTIRE AGREEMENT. This Sublease Agreement constitutes the entire
agreement between Sublessor and Sublessee relative to the Premises and can be
changed or modified only by written agreement signed by the parties hereto.
20. GOVERNING LAW. This Sublease Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona.
21. COUNTERPARTS. If each of the parties signs a counterpart
original of this Sublease Agreement, those counterparts shall constitute a
valid and complete execution hereof and the counterparts so executed shall be
deemed for all purposes to be a single instrument.
22. RECORDING OF MEMORANDUM. The parties agree to execute a mutually
acceptable "Memorandum of Sublease" disclosing the existence of the Sublease,
along with any other matters reasonably requested by either party, and further
agree that either party may record the same in the real property records of
Maricopa County, Arizona.
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease
for the purposes herein contained as of the date first hereinabove written.
SUBLESSOR: SUBLESSEE:
CAMELBACK AUTOMOTIVE, INC., LRP, LTD., an Arizona corporation
an Arizona corporation dba "Land Rover Phoenix"
By_____________________________ By_______________________________
Its____________________________ Its______________________________
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EXHIBIT "B"
LEASE
THIS LEASE, made and entered into on the day hereinafter subscribed
by and between MARYLAND INVESTMENTS, INC., an Arizona corporation ("Landlord")
and LAUREL LEASING, INC., a Texas corporation ("Tenant").
W I T N E S S E T H:
1. USE. The Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, for the purpose of conducting thereon, a commercial usage
consistent with the legal use of the premises, those certain premises with
appurtenances, described herein.
2. PREMISES. The premises leased to Tenant, together with
appurtenances, are hereinafter referred to as the "Demised Premises" and are
situated in the State of Arizona, and are more fully described on the
attached Exhibit "A".
3. OPTION TO EXPAND DEMISED PREMISES. The Landlord owns property
adjacent to the Demised Premises as described on the attached Exhibit "B",
(hereinafter Parcel "A" and Parcel "B", respectively and "Parcels"
collectively). The Parcels are subject to leases to lessees which extend beyond
the beginning of the term of the Lease. The Landlord intends to allow the
Tenant, from time to time, the right to extend the Lease to include a portion or
all of the Parcels. Landlord shall inform Tenant from time to time and Tenant
may request from Landlord, from time to time, information concerning the status
of the leases on the Parcels, their respective termination dates and
negotiations concerning new leases of portions of the Parcels. If Tenant shall
determine that it wishes to expand this Lease to include all or a portion of the
Parcels, Tenant shall give Landlord written notice thereof (hereinafter the
"Option Notice") specifying the Parcels or portions thereof desired by Tenant
(which portions may not materially and adversely affect Landlord's ability to
lease the balance of the Parcels and which portions are hereinafter referred to
as the "Option Parcel"). Until receipt of the Option Notice, Landlord shall only
be obligated to reasonably inform Tenant as to the availability of the Parcels
for lease and related information. However, from and after deliver of the Option
Notice to Landlord, Landlord shall be obligated, in good faith, subject to its
lease obligations at the time of receipt of the Option Notice, to attempt to
obtain possession of the Option Parcel. Upon obtaining possession of the Option
Parcel, Landlord shall deliver possession of the Option Parcel to Tenant by
written notice to Tenant. Upon delivery of possession of the Option Parcel to
Tenant, the rent herein shall be increased by an amount equal to the fair market
value of the rent for the Option Parcel, (the "Option Parcel Rent"). The Option
Parcel Rent shall be established and paid by
the following procedure: (1) Tenant shall include in its Option Notice its
proposed amount of Option Parcel Rent as of the date of delivery of possession;
(2) the Tenant's proposed Option Parcel Rent shall be paid by Tenant and become
rental due and owing each month under this Lease at and simultaneously with
delivery of possession of the Option Parcel by Landlord to the Tenant; (3) real
property taxes for the Option Parcel shall be prorated between Landlord and
Tenant as of the date of delivery of possession of the Option Parcel by the
Landlord; (4) Tenant shall be obligated to pay all additional expenses with
respect to the Option Parcel as of the date possession is delivered to it by the
Landlord including, utilities, maintenance repair and the like; (5) for all
other purposes, the Option Parcel shall be considered a part of the Demised
Premises as of the date of delivery of possession; (6) if Landlord determines
that the proposed Option Parcel Rent by Tenant is less than the fair market
value of the rent for the Option Parcel, Landlord shall, within thirty (30) days
of delivery of possession of the Option Parcel give written notice of its
proposed Option Parcel Rent for the Option Parcel and, the name of an arbitrator
it proposes to settle the matter in the event Tenant is unwilling to accept
Landlord's proposed Option Parcel Rent; (7) Tenant shall within thirty (30) days
of receipt of Landlord's written notice of Option Parcel Rent, respond in one of
the following three manners: (a) not respond, in which event, Landlord's
proposed Option Parcel Rent shall be the additional rent for the Option Parcel;
(b) issue its written notice of rejection of Landlord's proposed Option Parcel
Rent, but acceptance of Landlord's proposed arbitrator, in which event, the
arbitrator shall determine the Option Parcel Rent, (half of the cost of the
arbitrator shall be allocated to each party hereunder); or (c) Tenant shall
timely reject Landlord's proposed Option Parcel Rent, timely reject Landlord's
proposed arbitrator and, shall name its own arbitrator, in which event,
Landlord's arbitrator and tenant's arbitrator shall meet and agree on a third
arbitrator and the three arbitrators shall set the Option Parcel Rent; (8)
during the period when rent is not established hereunder, Tenant shall pay the
amount set forth in Tenant's notice as to the Option Parcel Rent, and upon final
determination pursuant to the procedures outlined herein of the rent due, Tenant
shall pay the shortgage, if any, together with interest at the rate of the
Valley National Bank prime, plus two percent (2%) from the respective dates that
the Option Parcel Rent was due, until paid; and (9) the Option Parcel Rent shall
increase in proportion to the rental increase for the balance of the Demised
Premises at and simultaneously with the increase in rent under Paragraph 6
herein.
In the event Tenant gives an Option Notice, Landlord shall be
obligated to use its best efforts to deliver possession of the Option Parcel to
Tenant and complete the termination of the applicable lease(s); provided,
however, that if the Lessee(s) of the applicable Option Parcel refuses to
deliver possession to Landlord, Landlord's obligation hereunder shall be to
diligently
-2-
pursue such possession and Landlord shall not be liable hereunder for any other
liability or damages with respect to the same.
This procedure may be invoked from time to time by Tenant with
respect to portions of the Parcels. The Option Notice may include time
requirements for satisfying the same provided that any such time requirements
must be reasonable and must be issued in good faith or the Option Notice shall
not be effective.
4. TERM. The term of this lease shall be for eleven (11) years. It
shall commence and Tenant's obligation to pay rent, shall commence on the 1st
day of September, 1989 and shall end on the 31st day of August, 2000. Tenant
shall be given possession of the Demised Premises on the 15th day of August,
1989 for the purpose of demolition, construction, renovation and other work to
improve the Demised Premises for Tenant's use, (subject to the provisions of
Paragraph 9 hereof).
5. DEPOSIT. Upon the execution of this lease the Tenant shall
deposit with Landlord the sum of Twenty-One Thousand Dollars ($21,000), (plus
applicable rental tax for the first and second month's rent) being the rent for
the first, second and the balance after reduction for applicable rental tax,
part payment of the rent for the last month of the lease term; provided however,
that the deposit of part payment of the rent for the last month of this lease
may be applied, in the sole and exclusive discretion of the Landlord to any
other obligation of the Tenant hereunder. Tenant shall have no right to require
the Landlord to apply such sum to any purpose other than the payment of the last
month rent hereunder. If and to the extent that Landlord shall apply such last
month rent to any purpose other than the last month rent, the Tenant shall be
obligated upon demand by Landlord to fully restore such sum by additional
deposit with Landlord.
6. RENTAL. Tenant shall pay to Landlord during the term of this
lease as monthly rental for the Demised Premises, the sums set forth on the
following schedule:
Month Monthly Rental Total
----- -------------- -----
1 - 12 inclusive $7,000 $84,000
13 - 36 inclusive 8,000 192,000
37 - 60 inclusive 10,000 240,000
61 - 108 inclusive 12,000 576,000
108 - 132 inclusive 15,000 360,000
----------------------
Total Rental to be paid 1,452,000
======================
The foregoing amounts shall be in addition to any rent due for one
or more of the Option Parcels, if and to the extent that one or more options are
exercised under Paragraph 3 above.
-3-
The monthly rental shall be paid in advance on the first day of each
calendar month. All rental to be paid by Tenant to Landlord shall be in lawful
money of the United States of America and shall be paid without deduction or
offset, prior to notice or demand at the address as hereinafter subscribed. Any
rent payment not paid within ten (10) days of its due date shall be subject to a
five percent (5%) late charge.
7. RENTAL TAX. Tenant shall pay to Landlord any and all excise,
privilege and other taxes, other than net income and estate taxes levied or
assessed by any federal, state or local authority upon the rent received by the
Landlord hereunder, and Tenant shall bear any business tax imposed upon Landlord
by any governmental authority which is based or measured in whole or in part by
amounts or benefits, charged or received by Landlord from Tenant under this
lease, provided that Tenant shall pay only the amount of such business tax that
would be payable by Landlord if the Demised Premises were the only property of
the Landlord.
8. REAL ESTATE TAXES. Tenant shall pay the annual real estate taxes
and assessments levied upon the Demised Premises, and all improvements thereto
to the Landlord. During the initial year of the lease and the year of
termination, the real estate taxes shall be prorated, based upon the term of the
lease. In the event that Tenant wishes to protest the valuation of the real
property or any other matter involving the amount of the real estate taxes, the
Landlord shall cooperate with Tenant, provided however, that such action shall
be at the sole cost and expense of the Tenant.
9. PERSONAL PROPERTY TAXES. During the term hereof, Tenant shall
pay, prior to delinquency, all taxes assessed against and levied upon the
automobiles, fixtures, furnishings, equipment and all other personal property of
Tenant contained in the demised premises.
10. USES PROHIBITED. Tenant shall not use, or permit the Demised
Premises, or any part thereof, to be used for any purpose or purposes other than
the purpose or purposes for which the Demised Premises are hereby leased; and no
use shall be made or permitted to be made on the Demised Premises, nor acts
done, which may cause a cancellation of any insurance policy covering any
buildings on the Demised Premises or any part thereof, nor shall Tenant sell or
permit to be kept, used or sold in or about the Demised Premises, any article
which may be prohibited by standard form of fire insurance policies. Tenant
shall, at his sole cost, comply with any and all requirements, pertaining to the
use of the Demised Premises, of any insurance organization or company necessary
for the maintenance of reasonable fire and public liability insurance, covering
said building and appurtenances.
11. UTILITIES. Tenant shall pay before delinquency, all utility
charges, including but not limited to, telephone,
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water, gas, heat, electricity and all other services of utilities used in, upon,
or about the Demised Premises by Tenant or any of its subtenants, licensees, or
concessionaires during the term of this lease.
12. LEASEHOLD IMPROVEMENTS. Tenant hereby agrees to demolish certain
improvements and to construct other improvements to the Demised Premises at the
cost and expense of Tenant but only in accordance with conceptual plans which
have been submitted to and approved by Landlord. The work shall be performed
only after such contractors, subcontractors and other persons engaged by or on
behalf of Tenant to construct such improvements, perform such demolition or
otherwise work on the Demised Premises shall procure and maintain adequate
insurance coverage against such risks, in such amounts and with such companies
as Landlord may require in connection with the installation of such
improvements. Upon: (i) completion of such improvements; (ii) the issuance by
the City of Phoenix of a Certificate of Occupancy and/or Certificate of
Compliance with all relevant building code requirements; (iii) delivery of lien
waivers and/or certificate of payment in full from all contractors,
subcontractors, materialmen and suppliers (involving amounts in excess of
$1,000); and (iv) delivery to Landlord of a copy of the detailed plans and
specifications for the improvements to the Demised Premises on an "as built
basis", Landlord shall pay to Tenant, its portion of the cost of such
improvements, being the sum of Twenty Thousand Dollars ($20,000.00). Landlord
has made no representations as to the conditions of the Demised Premises or the
cost to demolish, construct, remodel, maintain, repair or renovate, except as
expressly set forth herein.
13. MECHANIC'S LIENS. Tenant will not permit any mechanic's or
materialman's lien or liens to be placed upon the Demised Premises or
improvements thereon during the Lease Term caused by or resulting from any work
performed, materials furnished or obligation incurred by or at the request of
Tenant, and in the case of the filing of any such lien, Tenant, within twenty
(20) days of the filing of same (herein the "20 Day Period"), shall pay or
remove any such lien or liens by placing with Landlord a cash deposit in an
amount adequate to cover the lien(s) and all costs and interest which may accrue
with respect to such lien(s), or at Tenant's option, Tenant may, within said 20
Day Period, or if Tenant fails promptly and within said 20 Day Period to do so,
Landlord may, but is not obligated to, bond over, at Tenant's cost, any and all
such lien(s) under an applicable statutory or other bonding procedure which
causes the full release and discharge of such lien or claim from the Demised
Premises, and the improvements thereto, including, without limitation, the
right, at Tenant's cost, to bond over pursuant to Arizona Revised Statutes,
Section 33-1004, or any related, amended or superseding statute or law
pertaining to such or a similar bonding procedure. If default in payment
thereof, or in removal or bonding over of such lien(s) as required or permitted
-5-
above, shall continue for twenty (20) days after written notice thereof from
Landlord to Tenant, Landlord shall have the right and privilege at Landlord's
option of paying the same or any portion thereof without inquiry as to the
validity thereof, and any amounts so paid, including reasonable expenses and
interest thereon at the rate of fifteen percent (15%) per annum from the date of
payment by Landlord, shall be additional indebtedness and rent hereunder due
from Tenant to Landlord and shall be repaid to Landlord immediately on rendition
by Landlord to Tenant of a bill therefor.
14. TENANT'S REPAIRS AND ALTERATIONS. Except for demolition and
modifications set forth on the plans described in 12 above, Tenant will not in
any manner deface or injure the Demised Premises, and will pay the cost of
repairing any damage or injury done to the Demised Premises or any part thereof
by Tenant or Tenant's agents, employees or invitees. Tenant shall throughout the
Lease Term take good care of the Demised Premises and keep them free from waste
and nuisance of any kind. Tenant agrees to keep the Demised Premises, including
all improvements and property installed or kept on the premises by Tenant, other
than fixtures (hereinafter "Tenant Property") in good condition and repair and
make all necessary repairs and replacements thereto, subject to reasonable
depreciation and wear from ordinary uses and passage of time, it being
understood and agreed under the terms of this Lease that such improvements and
Tenant Property and any insurance coverage therefor are solely the
responsibility of Tenant hereunder. If Tenant fails to perform maintenance,
repairs or replacements, Landlord may give Tenant written notice thereof. If
Tenant thereafter fails to cure such default within thirty (30) days after
written notice by Landlord to Tenant to perform such maintenance, repairs or
replacement, Landlord may at its option perform or cause to be performed such
maintenance, repair or replacement, and Tenant shall, upon demand therefor, pay
and reimburse Landlord for the reasonable cost thereof. Tenant will not make or
allow to be made any alterations or physical additions in or to the Demised
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. All alterations, additions or improvements (whether
temporary or permanent in character) made in or upon the Demised Premises, by
Tenant, shall be Landlord's property on expiration or termination of this Lease
and shall remain on the Demised Premises without compensation to Tenant. At the
expiration or any other termination of this Lease, Tenant shall deliver up the
Demised Premises with all improvements located thereon (except as otherwise
herein provided) in good repair and condition, reasonable wear and tear only
excepted, and fire and casualty damage or loss excepted as to improvements to
the extent such loss or damage is covered by fire and casualty insurance
provided by Tenant which is recoverable and all proceeds of such insurance are
paid to Landlord to cover such loss or damage. In any event, all proceeds of any
insurance coverage for loss or damage to the Demised Premises, exclusive of
Tenant Property but inclusive of
-6-
any improvements, are hereby assigned and shall be payable directly by the
insurer to Landlord. At such expiration or any other termination, Tenant shall
deliver to Landlord all keys to the Demised Premises. All Tenant Property may be
removed by Tenant at the termination of this Lease if Tenant so elects, and
shall be so removed if required by Landlord upon sixty (60) days written notice;
if not so removed, all such items shall, at the option of Landlord, become the
property of Landlord. Any such items and all such other improvements or property
left in the Demised Premises by Tenant upon abandonment by Tenant of the Demised
Premises, or upon any expiration or termination of this Lease, shall, at
Landlord's election, be deemed the property of Landlord free of any claim of
Tenant or anyone claiming by or through Tenant. All installations, removals and
restoration by or at the instance of Tenant shall be accomplished in a good
workmanlike manner so as not to damage the Demised Premises.
15. REGULATED SUBSTANCES. Tenant warrants that no petroleum-based,
radioactive, hazardous or toxic substances (hereinafter referred to as Regulated
Substances) which are subject to federal, state or local laws, rules,
regulations and ordinances will be used on the Demised Premises, except for
those set forth in Exhibit "C". Tenant shall not have on the Demised Premises
any Regulated Substances other than those set forth on Exhibit "C" hereto, and
the quantities on the Demised Premises at any time shall not exceed the
quantities on Exhibit "C". Regulated Substances include, but are not limited to,
any and all substances, materials or wastes regulated under the Resource
Conservation and Recovery Act, 42 U.S.C. Section 8901, et seq., the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601,
et seq., the Arizona Hazardous Waste Management Act, A.R.S. Sub-section 49-921,
et seq., the Arizona Underground Storage Tank Regulation Act, A.R.S. Sub-section
49-1001, et seq., and the Arizona Environmental Quality Act, A.R.S. Sub-section
49-201, et seq., and the rules or regulations adopted and guidelines promulgated
pursuant to these laws.
Tenant has obtained or will obtain, in a timely fashion, all
permits, licenses and other authorizations which are required under federal,
state and local laws and regulations relating to pollution or potection of the
environment or public health (hereafter referred to as the Applicable Laws),
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or industrial, hazardous or toxic substances,
materials or wastes into the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, or
Regulated Substances.
-7-
Tenant shall be, during the term of the lease, in compliance in all
material respects with all terms and conditions of the required permits,
licenses and authorizations, and also is and will be in compliance in all
material respects with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in the Applicable Laws or contained in any regulations, code, plan,
order, decree, judgment or notice issued, entered, promulgated or approved
thereunder and applicable to the Tenant's operations, activities or business.
Tenant shall immediately notify Landlord of any events, conditions,
circumstances, activities, practices, incidents, actions or plans known to the
Tenant which may interfere with or prevent continued compliance, or which may
give rise to any common law or legal liability, or otherwise form the basis of
any claim, action, suit, proceeding, hearing or investigation, based on or
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling, or the emission, discharge, release or
threatened release into the environment, of any pollutant, contaminant or
Regulated Substance.
To the fullest extent permitted by law, Tenant agrees to indemnify,
defend and hold harmless Landlord from any and all claims, demands, actions,
suits, proceedings, hearings, investigations, responsibility, liability, orders,
injunctions, judgments, fines, damages and losses of any nature whatsoever
arising out of or relating in any way to Tenant's present or future use of, or
activities or operations on or at, the Demised Premises, or arising from or
relating to any breach of the preceding five paragraphs. Tenant also agrees to
indemnify and hold harmless Landlord for any and all costs and expenses incurred
in connection therewith, including without limitation, any and all attorneys'
and expert witness fees, investigative, removal, remedial, corrective, or
mitigating action costs, fines and penalties. These indemnities shall survive
the termination of this Lease.
Tenant shall furnish to Landlord, from time to time, copies of all
permits and information concerning compliance with these provisions, as shall be
reasonably requested by Landlord.
Nothing included in this section shall be deemed to create or
establish any responsibility or liability on the part of the Tenant for any
Regulated Substances which are or were on the Demised Premises prior to August
15, 1989; provided, however, that Tenant shall allow Landlord and its agents
reasonable access to the Demised Premises to cure any problem created thereby or
to remove any such Regulated Substance. If, and to the extent that such entry by
Landlord interferes with or diminishes Tenant's use of the Demised Premises,
there shall be a proportionate abatement in rent hereunder as the sole remedy of
Tenant for such interference or diminishment.
-8-
16. COMPLIANCE WITH LAWS. Tenant shall, at his sole cost and
expense, comply with all of the other requirements of all municipal, state and
federal authorities now in force or which may hereafter be in force pertaining
to the use of the Demised Premises, and shall faithfully observe in said use,
all county ordinances and state and federal statutes now in force or which shall
hereinafter be in force. The judgment of any court of competent jurisdiction or
the admission of Tenant in any action or proceeding against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any such order or
statute in said use, shall be conclusive of that fact as between the Landlord
and Tenant.
Tenant shall not commit, or suffer to be committed, any waste upon
the Demised Premises.
17. ENTRY AND INSPECTION. Tenant shall permit Landlord and its
agents to enter into and upon the Demised Premises at all reasonable times
for the purpose of inspecting the same concerning Tenant's duties hereunder,
including but not limited to, maintenance and repair.
18. DAMAGE AND DESTRUCTION OF PREMISES. Tenant is leasing the
Demised Premises in a significantly unimproved condition. Therefore, the
damage or destruction to the improvements is a risk of the Tenant and there
shall be no diminution in or termination of rent in the event of damage or
destruction to the improvements on the Demised Premises.
19. INDEMNIFICATION OF LANDLORD - LIABILITY INSURANCE BY TENANT.
Tenant, as a material part of the consideration to be rendered to Landlord under
this lease, hereby waives all claims against Landlord for damage to its property
in, upon or about the Demised Premises and for injuries to persons in or about
the Demised Premises, from any cause arising at any time; and Tenant will hold
Landlord exempt and harmless from any damage or injury to any person, or
property of any person, arising from the use of the Demised Premises by Tenant,
or from the failure of Tenant to keep the premises in good condition and repair,
as herein provided.
During the entire term of this lease, the Tenant shall, at the
Tenant's sole cost and expense, but for the mutual benefit of Landlord and
Tenant, maintain general public liability insurance against claims for personal
injury, death or property damage occurring in, upon or about the Demised
Premises. The limitation of liability of such insurance shall not be less than
One Million Dollars ($1,000,000.00) in respect to injury or death of one person
and to the limit of not less than One Million Dollars ($1,000,000.00) in respect
to any one accident and to the limit of not less than One Hundred Thousand
Dollars ($100,000.00) in respect to property damage. All such policies of
insurance shall be issued in the name of Tenant and Landlord and for the mutual
and joint benefit and protection of the parties, and such
-9-
policies of insurance or copies thereof shall be delivered to the Landlord.
20. FIRE INSURANCE. Tenant shall maintain and pay for fire and
extended coverage insurance throughout the term of this lease in an amount equal
to at least eighty percent (80%) of the replacement value of the improvements
which are or become part of the Demised Premises. Tenant hereby waives any right
of recovery from Landlord, its officers and employees, and Landlord hereby
waives any right of recovery from Tenant, its officers or employees, for any
loss or damage (including consequential loss) resulting from any of the perils
insured against the standard form fire insurance policy with extended coverage
endorsement. Landlord and Tenant agree to obtain waiver provisions in policies
obtained from insurance companies, if available.
21. CONSENT OF LANDLORD. Wherever in this lease the consent of the
Landlord must be obtained in order to do or perform a function or perform an
act, the Landlord may request reasonable information concerning such consent,
but may not thereafter unreasonably withhold consent, and if Landlord elects not
to consent to such request, Landlord must specify the reasons therefor.
22. EVENTS OF DEFAULT. The following events or any other act
or failure to act by Tenant specified elsewhere in this Lease to be a default
or an Event of Default shall be deemed to be events of default ("Events of
Default") by Tenant under this Lease:
(a) Tenant shall fail to pay when due any rental or other sums
payable by Tenant under this Lease (or under any other lease now or
hereafter executed by Tenant in connection with space in the
Building) and such failure continues for ten (10) days after written
notice of nonpayment or demand for payment from Landlord to Tenant.
(b) Tenant shall fail to comply with or observe any provision of
this Lease and fails to cure such failure within thirty (30) days,
and Tenant fails to promptly commence within ten (10) business days,
after written notice of such failure given by Landlord to Tenant, or
if diligent and timely curing of any such failure on the part of
Tenant requires a period longer than thirty (30) days, and Tenant
fails to promptly commence within three (3) business days after the
giving by Landlord to Tenant of written notice of such failure, or
Tenant fails within a reasonable time but not longer than sixty (60)
days after such notice to diligently and promptly complete, the
curing of such failure to comply with or observe such provision.
-10-
(c) Tenant shall make an assignment for the benefit of creditors.
(d) The filing of any petition by or against Tenant under any
section or chapter of the Federal Bankruptcy Act, as amended, or
under any similar law or statute of the United States or any state
thereof, and which, if involuntary, is not dismissed within sixty
(60) days of the date of filing thereof; or Tenant shall be adjudged
bankrupt or insolvent in any proceedings filed under or pursuant to
said laws.
(e) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(f) Tenant shall abandon, desert or vacate the Demised Premises and
defaults with respect to payment of the Rent, or any other sums due
under this Lease for Tenant's use and occupancy of the Demised
Premises under this Lease.
23. REMEDIES. Upon the occurrence of any Event of Default by Tenant
specified in this Lease, Landlord, upon the giving of written notice of its
intention so to do, shall have the option to pursue any one or more of the
following rights and remedies without any further notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Demised Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it
may have for possession or arrearage in rent, enter upon and take
possession and expel or remove Tenant and any other person who may
be occupying said Demised Premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim for
damages therefor; and Tenant hereby indemnifies Landlord against and
agrees to pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination,
whether through efforts to obtain surrender or possession of the
Demised Premises, inability to relet the Demised Premises on terms
satisfactory to Landlord in its reasonable discretion or otherwise,
and including without limitation the loss of rental for the
remainder of the Lease Term as provided for below.
(b) Without terminating this Lease or any obligations of Tenant
hereunder, enter upon and take possession of the Demised Premises
and expel or remove Tenant and any other person who may be occupying
the Demised Premises or any part thereof, by force if necessary,
remove all property therefrom, including without limitation any
property of Tenant or any other person whose property
-11-
is located therein at the instance, permission or by reason of
Tenant's lease, use and occupancy of the Demised Premises, such
property as may be removed shall be stored in a public warehouse or
public storage facility, or, at Landlord's election, at the Demised
Premises for a rental not greater than that customarily charged by a
public warehouse or public storage facility, all of same to be at
the cost of, and for the account of, Tenant, all without notice or
legal process and without being deemed guilty of trespass and
without being liable for prosecution or any claim for loss or
damages therefor, including without limitation any loss or damage
therefor sustained by reason of such storage in a public warehouse
or storage facility due to nonpayment of storage or other costs
thereof. If Tenant shall, after an Event of Default, voluntarily
give up possession of the Demised Premises to Landlord, deliver to
Landlord the keys to the Demised Premises, or both, such action
shall be deemed to be in compliance with Landlord's rights and the
acceptance thereof by Landlord shall not be deemed to constitute a
surrender of the Demised Premises. Should Landlord elect to
re-enter, as herein provided, or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for
and required by law, Landlord may either terminate this Lease or it
may from time to time without terminating this Lease make such
alterations and repairs as may be necessary in order to relet the
Demised Premises, and Landlord may relet said Demised Premises or
any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or
rentals and upon such other terms and conditions satisfactory to
Landlord in its reasonable discretion; upon each such reletting, all
rentals received by the Landlord from such reletting shall be
applied, first to the payment of any indebtedness other than rent
due hereunder from Tenant to Landlord, second, to the payment of any
reasonable costs and expenses of such reletting, including brokerage
fees and attorneys' fees and costs of such necessary alterations and
repairs and/or recovery of possession, third, to the payment of rent
due and unpaid from Tenant to Landlord under this Lease and the
residue, if any, shall be held by Landlord and applied in payment of
future rent or damage as the same may become due and payable
hereunder. If such rentals received from such reletting during any
month be less than that to be paid during that month by the Tenant
hereunder, Tenant shall pay any such deficiency to Landlord, the
same to be calculated and paid monthly on demand of Landlord.
Notwithstanding any such reletting without termination, Landlord may
at any time thereafter elect to terminate the Lease for such
previous or any subsequent breach
-12-
or Event of Default. In any event, under the foregoing
circumstances, Tenant agrees to indemnify and pay promptly upon
demand any and all deficiency that may occur or arise by reason of
such reletting for the remainder of the Lease Term. Should Landlord
at any time terminate this Lease for any breach or Event of Default,
in addition to any other rights and remedies it may have, Landlord
may recover from Tenant all damages it may incur by reason of such
breach or Event of Default, including without limitation the loss of
rental for the remainder of the Lease Term according to the terms
set forth below, the cost of recovering the Demised Premises and
reasonable attorneys' fees, all of which amounts shall be
immediately due and payable from Tenant to Landlord.
(c) Enter upon the Demised Premises by force if necessary, without
being liable for prosecution or any claim for damages therefor, and
do whatever Tenant is obligated to do under the terms of this Lease;
and Tenant agrees to reimburse Landlord on demand for any reasonable
expenses which Landlord may reasonably incur in thus effecting
compliance with Tenant's obligations under this Lease, and Tenant
further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action.
(d) Should Landlord at any time terminate this Lease for any
default, in addition to any other remedy Landlord may have, Landlord
may recover from Tenant all damages Landlord may incur by reason of
such default, including the cost of recovering the Demised Premises,
reasonable attorneys' fees and costs, and the loss of rental for the
remainder of the Lease Term.
(e) Should Landlord elect in connection with any of its rights or
remedies herein to proceed with re-letting of the Demised Premises
on behalf of Tenant in mitigation of the sums accruing and becoming
due and payable from Tenant under this Lease, Landlord agrees to use
its best efforts to mitigate any damages due to Tenant's default and
to use reasonable efforts to relet the Demised Premises.
In the event Landlord exercises its option or right to terminate the
Lease prior to expiration of the Lease Term as permitted in this Paragraph No.
23, the damages for loss of rental for the remainder of the term after such
termination shall include the worth at the time of such termination of the
excess, if any, of the amount of rent and charges equivalent to rent reserved in
this Lease for the remainder of the stated term, which sum shall be discounted
by the discount rate of the Federal Reserve Bank located closest to the Demised
Premises plus two percent (2%), and all such damage amounts upon a termination
-13-
shall be immediately due and payable from Tenant to Landlord on demand of
Landlord made after such termination. Notwithstanding anything to the contrary
appearing in this Lease, the foregoing determination in this paragraph of the
loss of rental after a termination of the Lease shall be applicable only upon
exercise by Landlord of its right to terminate as provided for in this Paragraph
No. 23, and Landlord, at its election, without terminating the Lease, may pursue
and enforce any other rights and/or remedies Landlord may have at law or in
equity or otherwise under this Lease.
No re-entry or taking possession of the Demised Premises by Landlord
shall be construed as an election on its part to terminate this Lease, unless a
written notice of such intention be given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may at any time thereafter
elect to terminate this Lease for a previous Event of Default. Pursuit of any of
the foregoing rights or remedies shall not preclude pursuit of any of the other
rights or remedies herein provided or any other rights or remedies provided by
law, nor shall pursuit of any right or remedy herein provided constitute a
forfeiture or waiver of any rent due to Landlord hereunder or of any damages
accruing to Landlord by reason of the violation of any of the terms, provisions
and covenants herein contained. Landlord's acceptance of rent or payments
following an Event of Default hereunder shall not be construed as Landlord's
waiver of such Event of Default. No waiver by either party hereto of any
violation or breach of any of the terms, provisions, and covenants herein
contained shall be deemed or construed to constitute a waiver of any other
violation or default. The loss or damage that Landlord may suffer by reason of
termination of this Lease or the deficiency from any reletting as provided for
above shall include but not be limited to the reasonable expense of repossession
and any reasonable repairs or necessary remodeling undertaken by Landlord
following possession.
24. INSOLVENCY OF TENANT. Tenant agrees that in the event all or
substantially all of its assets be placed in the hands of a receiver or trustee,
and in the event such receivership or trusteeship continues for a period of ten
(10) days, or should Tenant make an assignment for the benefit of creditors, or
be adjudicated a bankrupt, or should Tenant institute any proceedings under any
state or federal bankruptcy act wherein Tenant seeks to be adjudicated a
bankrupt, or seeks to be discharged of its debts, or should any voluntary
proceeding be filed against such Tenant under such bankruptcy laws and Tenant
consents thereto or acquiesces therein by pleading or default, then this lease
or any interest in and to the Demised Premises shall not become an asset in any
of such proceedings and, in any of such events and in addition to any and all
rights or remedies of Landlord hereunder or as provided by law, it shall be
lawful for Landlord at his option to declare the term hereof ended and to
re-enter the Demised Premises and take possession
-14-
thereof and remove all persons therefrom and Tenant shall have no further claim
therein or hereunder.
25. SURRENDER OF LEASE. 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 subleases or
subtenancies, or may, at the option of Landlord, terminate all or any existing
subleases or subtenancies, or may, at the option of Landlord, operate as an
assignment to him of any or all of such subleases or subtenancies.
26. ABANDONMENT. Tenant shall not abandon the Demised Premises at
any time during the term of this lease; and if Tenant shall abandon or surrender
the Demised Premises or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Demised Premises shall be
deemed to be abandoned, at the option of Landlord, except such property as may
be mortgaged to Landlord.
27. SALE OF PREMISES BY LANDLORD. In the event of any sale of the
Demised Premises by Landlord, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and obligations
contained in or derived from this lease arising out of any act, occurrence or
omission occurring after the consummation of such sale; and the purchaser, at
such sale or any subsequent sale of the Demised Premises shall be deemed,
without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of the Landlord
under this lease.
28. SUBORDINATION, ATTORNMENT. This lease, at Landlord's option
shall be subordinate to the lien of any first deed of trust or first mortgage
subsequently placed upon the real property of which the Demised 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;
provided, however, that as to the lien of any such deed of trust or mortgage,
Tenant's right to quiet possession of the Demised 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. Landlord shall obtain from any
such Lender written confirmation of this nondisturbance clause for the benefit
of Tenant. 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.
-15-
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the demised premises, the Tenant shall attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under this lease.
29. ESTOPPEL CERTIFICATES. Tenant agrees to furnish from time to
time when requested by Landlord, the holder of any deed of trust or mortgage or
the lessor under any ground lease covering all or any part of the Building or
the improvements therein or the Demised Premises or any interest of Landlord
therein, hereinafter the "Requesting Party", a certificate signed by Tenant
confirming and containing such factual certifications and representations deemed
appropriate by Landlord, and/or the Requesting Party, and Tenant shall, within
fifteen (15) business days following receipt of said proposed certificate from
such Requesting Party, return a fully executed copy of said certificate to
Landlord and the Requesting Party. In the event Tenant shall fail to return a
fully executed copy of such certificate to Landlord and the Requesting Party
within the foregoing fifteen (15) business day period, then Tenant shall be
deemed to have unconditionally approved and confirmed all of the terms,
certifications and representations contained in such certificate.
Landlord agrees to furnish from time to time when requested in
writing by Tenant, a certificate approved and signed by Landlord confirming and
containing such true factual certifications and representations deemed
appropriate by Tenant regarding this Lease, the status of performance thereunder
and the Building and affecting Tenant's rights, performance and interest under
this Lease within fifteen (15) business days following the giving of such
proposed certificate by Tenant to Landlord. In the event Landlord shall fail to
return a fully executed copy of such certificate to Tenant within the foregoing
fifteen (15) business day period, Landlord shall be deemed to have
unconditionally approved and confirmed all of the terms, certifications and
representations contained in such certificate.
30. CONDEMNATION. If in the event of a condemnation or a transfer in
lieu thereof, fifty percent (50%) or more of the Demised Premises is taken,
Landlord or Tenant may, upon written notice given thirty (30) days after such
taking or transfer in lieu thereof, terminate this lease. Tenant shall not be
entitled to share in any portion of the award. Tenant shall, however, have the
right to claim and recover from the condemning authority any amounts necessary
to reimburse Tenant for the unamortized value of its leasehold improvements.
31. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this lease,
or any interest therein, and shall not sublet the Demised Premises or any part
thereof, or any right or privilege appurtenant thereto, or permit any other
person (the
-16-
agents and servants of Tenant excepted) to occupy or use the Demised Premises,
or any portion thereof, without first obtaining the written consent of Landlord.
Consent by Landlord to one assignment, subletting, occupation or use by another
person shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another person. Consent to an assignment shall
not release the original named Tenant from liability for the continued
performance of the terms and provisions on the part of Tenant to be kept and
performed, unless Landlord specifically releases the original named Tenant from
said liability. Any assignment or subletting without the prior written consent
of Landlord shall be void, and shall, at the option of Landlord terminate this
lease. Neither this lease nor any interest therein shall be assignable, as to
the interest of Tenant, by operation of law, without the prior written consent
of Landlord. Landlord shall not unreasonably withhold consent of any assignment
or subletting. Landlord hereby agrees that in the absence of an unusual
circumstance affecting its security herein (such as the lack of economic
substance of the prospective assignee) it will consent to transfers to relatives
of the present stockholders of Tenant, corporations controlled by the present
stockholders of Tenant and/or assignees of the dealership.
32. ATTORNEYS' FEES. In the event of any action or arbitration
regarding this lease, or the enforcement hereof, the losing party shall pay
to the prevailing party reasonable attorneys' fees.
33. HOLDING OVER. Any holding over after the expiration of the term
of this lease, with the consent of Landlord, shall be construed to be a tenancy
from month to month, cancellable upon thirty (30) days' written notice, and at a
rental and upon terms and conditions as existed during the last year of the term
hereof.
34. NOTICES. Wherever in this lease it shall be required or
permitted that notice and demand be given or served by either party to this
lease to or on the other, such notice or demand shall be given or served and
shall not be deemed to have been duly given or served unless in writing and
delivered personally or forwarded by certified mail, addressed as hereinafter
subscribed. Either party may change such address by written notice by certified
mail to the other. Notice is completed upon delivery or mailing.
35. SUCCESSORS IN INTEREST. The covenants herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators, and assigns of all the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
-17-
36. FORCE MAJEURE. If either party hereto shall be delayed or
prevented from the performance of any act required hereunder by reason of Acts
of God, strikes, lockouts, labor troubles, inability to procure materials,
restrictive governmental laws or regulations or other cause without fault and
beyond the control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay; provided, however, nothing in this
Article 36 contained shall excuse Tenant from the prompt payment of any rental
or other charge required of Tenant hereunder except as may be expressly provided
elsewhere in this lease.
37. PARTIAL INVALIDITY. If any term, covenant or condition or
provision of this lease is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereof.
38. MARGINAL CAPTIONS. The various headings and numbers herein
and the grouping of the provisions of this lease into separate articles and
paragraphs are for the purpose of convenience only and shall not be
considered a part hereof.
39. TIME. Time is of the essence of this lease.
IN WITNESS WHEREOF, the parties have duly executed this lease
together with the herein referred to exhibits which are attached hereto, the
11th day of August, 1989.
LANDLORD:
MARYLAND INVESTMENTS, INC., an
Arizona corporation,
BY: /s/ Patricia Plecas
-----------------------------
Its: Managing Director
-----------------------------
TENANT:
LAUREL LEASING, INC., a Texas
corporation,
BY: /s/ Karen M. Donaldson
-----------------------------
Its: Secretary
-----------------------------
-18-
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 11th day of
August, 1989, by Patricia Plecas as Managing Director of MARYLAND INVESTMENTS,
INC., an Arizona corporation, for and on behalf of the corporation.
/s/ Laurie Kivelch
-----------------------------
Notary Public
My Commission Expires
February 18, 1992
- ----------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 11th day of
August, 1989, by Karen M. Donaldson, as Secretary of LAUREL LEASING, INC., a
Texas corporation, for and on behalf of the corporation.
/s/ Laurie Kivelch
-----------------------------
Notary Public
My Commission Expires
February 18, 1992
- ----------------------
-19-
EXHIBIT "A"
-----------
PROPERTY DESCRIPTION
Assessor Parcel Nos. 155-11-030
155-11-029
155-11-031
155-011-034
EXHIBIT "B"
OPTION PARCEL DESCRIPTION
Assessor Parcel No. 155-11-038-8: Office Building Multiple Tenants
Assessor Parcel No. 155-11-024F-9: Hideaway and Covey
-2-
EXHIBIT "C"
HAZARDOUS SUBSTANCE DESCRIPTION
EXHIBIT "C"
CONDITIONALLY EXEMPT
SEE ATTACHED -
ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY
GENERATOR ANNUAL HAZARDOUS WASTE REPORT FOR 1987
-3-
AMENDED EXHIBIT "C"
(Regulated Substances)
THIS AMENDED EXHIBIT "C" SHALL AMEND THAT CERTAIN EXHIBIT "C" ATTACHED TO THAT
CERTAIN LEASE AGREEMENT DATED AUGUST 11, 1989, BY AND BETWEEN MARYLAND
INVESTMENTS, INC. AND LAUREL LEASING, INC., FOR THE PREMISES LOCATED AT 1127
EAST CAMELBACK ROAD, PHOENIX, ARIZONA, AND UPON EXECUTION HEREOF BY SAID PARTIES
HEREINBELOW SHALL BE AND BECOME PART OF SAID LEASE.
The Tenant may use and store those "Regulated Substances" which are
customarily used and stored by automobile dealerships engaging in the sale,
lease, service and repair of new and used automobiles, provided that Tenant uses
and stores only normal and customary quantities of such "Regulated Substances"
and at all times uses and stores such "Regulated Substances" in compliance with
any and all applicable federal, state and local laws, ordinances and
regulations.
DATED this 18th day of August, 1995.
MARYLAND INVESTMENTS, INC., LAUREL LEASING, INC.,
an Arizona corporation a Texas corporation
By /s/ illegible By /s/ Karen Donaldson
-------------------- -----------------------
Its President Its Secretary
-------------------- -----------------------
CONSENT AND COVENANT OF LAUREL LEASING, INC.
TO: CAMELBACK AUTOMOTIVE, INC., an Arizona corporation ("Camelback
Automotive"); and LRP, LTD., an Arizona corporation dba "Land
Rover Phoenix" ("LRP").
DATED: August 18, 1995
The undersigned Laurel Leasing, Inc., a Texas corporation
("Sublessor"), as the lessee of the real property located at 1127 East Camelback
Road, Phoenix, Arizona (the "Premises") under that certain "Lease" dated August
11, 1989 (the "Master Lease") by and between Sublessor and Maryland Investments,
Inc., an Arizona corporation (the "Master Lessor"), and as the sublessor of the
Premises to Camelback (the "Camelback Sublease"), hereby consents, acknowledges,
covenants and agrees with Camelback and LRP as follows:
(A) The Master Lease and the Camelback Sublease have each been amended
so as to extend their respective terms through August 31, 2005, with
an option to further extend the terms thereof for a period of five
(5) additional years;
(B) Master Lessor has previously consented to the Camelback Sublease;
(C) Sublessor hereby consents to and approves of the sublease of the
Premises by Camelback Automotive to LRP on the terms of that certain
"Sublease Agreement" to be entered into by and between Camelback
Automotive and LRP (the "LRP Sublease"), an unsigned copy of which
is attached hereto as Exhibit "A";
(D) Sublessor agrees that it will give LRP prompt written notice of any
breach of the Master Lease and/or the Camelback Sublease and further
agrees that it will accept any cure, in payment of money or
otherwise, offered or performed by LRP as if such cure were offered
or performed by Camelback Automotive;
(E) Provided that LRP is not in breach of the terms and conditions of
the LRP Sublease, Sublessor shall not directly or indirectly
interfere with LRP's quiet enjoyment of the Premises, regardless
of whether Camelback Automotive is in default under the Camelback
Sublease and regardless of whether the Camelback Sublease
continues or is terminated, and, if the Camelback Sublease is
terminated, Sublessor will abide by the terms of the LRP
Sublease; and
(F) Sublessor acknowledges that Camelback Automotive and LRP are
entering into the LRP Sublease in reliance upon the consents,
covenants and agreements given and made herein by Sublessor and
Sublessor agrees that Camelback Automotive and LRP, and each
entity's respective successors and assigns, may, in fact, so rely on
such consents, covenants and agreements.
LAUREL LEASING, INC.,
a Texas corporation
By:/s/ Karen Donaldson
-------------------
Its:Secretary
---------
-2-
CAMELBACK
BMW
SUB-LEASE AGREEMENT PROPERTY LOCATED AT 1127 E. Camelback Road
Phoenix, Arizona, 85014
The purpose of this document is to sub-lease certain properties, currently
leased from the Maryland Investments, Inc. by Laurel Leasing, Inc. to the
Camelback Automotive Corporation. A copy of the aforementioned lease, dated
August 11, 1989, accompanies this document.
Laurel Leasing, Inc. does hereby lease this property to Camelback Automotive
Corporation on all the same terms and conditions as apply, including all
exhibits and any addendums.
Camelback Automotive Corporation agrees to accept all of the aforementioned
terms and conditions and will sub-lease this property.
Maryland Investments, Inc. acknowledges this agreement between Laurel
Leasing, Inc. and Camelback Automotive Corporation, and does hereby approve
the sub-lease.
LANDLORD: MARYLAND INVESTMENTS, INC.
An Arizona Corporation,
BY: /s/ Patricia Plecas
------------------------
IT'S Managing Director
------------------------
TENANT: LAUREL LEASING, INC.,
A Texas Corporation
BY: /s/ Karen M. Donaldson
------------------------
IT'S Secretary
------------------------
SUB-TENANT: CAMELBACK AUTOMOTIVE CORPORATION,
An Arizona Corporation
BY: /s/ James B. Donaldson
------------------------
IT'S Vice President
------------------------
STATE OF ARIZONA )
) SS:
County of Maricopa )
The foregoing instrument was acknowledged before me this 22nd day of August
1989, by Patricia Plecas as Managing Director of Maryland Investments, Inc., an
Arizona Corporation, for an on behalf of the corporation.
/s/ Laurie K. Weld
------------------------
Notary Public
1144 East Camelback Road
P.O. Box 16540 Phoenix, Arizona 85011
(602) 248-0058
CAMELBACK
BMW
Page 2 PROPERTY LOCATED AT
SUB-LEASE AGREEMENT 1127 E. Camelback Road
Phoenix, Arizona 85014
My Commission Expires February 18, 1992
STATE OF ARIZONA )
) SS:
County of Maricopa)
The foregoing instrument was acknowledged before me this 22nd day of August,
1989, by Karen M. Donaldson as Secretary of LAUREL LEASING, INC., an Texas
Corporation, for an on behalf of Corporation.
/s/ Laurie K. Weld
------------------------
Notary Public
My Commission Expires February 18, 1992
STATE OF ARIZONA )
) SS:
County of Maricopa)
The foregoing instrument was acknowledged before me this 22nd day of August,
1989, by James B. Donaldson as Vice President of CAMELBACK AUTOMOTIVE
CORPORATION, an Arizona Corporation, for an on behalf of the corporation.
/s/ Laurie K. Weld
------------------------
Notary Public
My Commission Expires February 18, 1992
1144 East Camelback Road
P.O. Box 16540 Phoenix, Arizona 85011
(602) 248-0058
-2-
When recorded, please return to:
Stephen M. Savage, Esq.
Fennemore Craig OFFICIAL RECORDS OF
Suite 2200 MARICOPA COUNTY RECORDER
Two North Central Avenue HELEN PURCELL
Phoenix, AZ 85004-2390 95-0505603 08/23/95 12:31
MEMORANDUM OF SUBLEASE
Camelback Automotive, Inc., an Arizona corporation ("Sublessor"), whose
address is 14032 North Canterbury Drive, Phoenix, Arizona 85023, and LRP, Ltd.,
an Arizona corporation ("Sublessee"), whose address is 1127 East Camelback Road,
Phoenix, Arizona 85014, hereby certify and agree as follows:
1. Sublessor and Sublessee have entered into a Sublease, dated as of July
1, 1995 (the "Sublease"), covering premises located at 1127 East Cambelback
Road, Phoenix, Arizona, more particularly described on Exhibit A, attached
hereto and by this reference incorporated herein (the "Premises").
2. Sublessor subleases the Premises from Laurel Leasing, Inc., a Texas
corporation, subject to and pursuant to the terms and conditions of that certain
Lease, dated August 11, 1989, by and between Laurel Leasing, Inc. and Maryland
Investments, Inc., an Arizona corporation.
3. The initial term of the Sublease commences on July 1, 1995 and expires
on June 30, 2005. Sublessee has an option to extend the term of the Sublease for
one (1) additional term of five (5) years.
4. The Sublease is filed at the offices of Sublessor and Sublessee.
5. The Sublease shall control and prevail over this Memorandum of Sublease
for all purposes. Nothing herein is intended to modify or supplement the
Sublease.
IN WITNESS WHEREOF, the undersigned have executed this Memorandum of
Sublease as of July 1, 1995.
SUBLESSOR:
CAMELBACK AUTOMOTIVE, INC.
By: Brad Donaldson
---------------------------
Its: President
--------------------------
SUBLESSEE:
LRP, LTD.
By: Jay Beskind
---------------------------
Its: President
--------------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 18th day of
August, 1995, by Brad Donaldson, the President of Camelback Automotive, Inc., an
Arizona corporation, on behalf of the corporation.
Linda Greenberg
--------------------------
Notary Public
My Commission Expires
10/25/95
- -----------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 18th day of
August, 1995, by Jay Beskind, the President of LRP, Ltd., an Arizona
corporation, on behalf of the corporation.
Linda Greenberg
--------------------------
Notary Public
My Commission Expires
10/24/95
- -----------------------
-2-
LEGAL DESCRIPTION
(1127 E. Camelback)
Parcel No. 1
The North 150 feet of the West 150 feet of the East 400 feet of Lot 5, Lincoln
Place, according to Book 3 of Maps, Page 65, Records of Maricopa County,
Arizona:
EXCEPT the North 7 feet thereof, (aka Maricopa County Assessor's Parcel No.
155-11-029).
Parcel No. 2
The South 150 feet of the North 183 feet of Lot 5, Lincoln Place, according to
Book 3 of Maps, Page 65, Records of Maricopa County, Arizona:
EXCEPT the West 180 feet and EXCEPT the East 430 feet and EXCEPT the South 7
feet of the North 40 feet thereof for a road, (aka Maricopa County Assessor's
Parcel No. 155-11-030)
Parcel No. 3
The North 150 feet of the West 50 feet of the East 250 feet of Lot 5, Lincoln
Place, according to Book 3 of Maps, Page 65, Records of Maricopa County,
Arizona:
EXCEPT the North 7 feet thereof, (aka Maricopa County Assessor's Parcel No.
155-11-031).
Parcel No. 4
That portion of Lot 5, Lincoln Place, according to Book 3 of Maps, Page 65,
Records of Maricopa County, Arizona, described as follows:
Beginning 150 feet South of the Northeast Corner; thence West 636.5 feet; thence
South 20 feet; thence East 636.5 feet; thence North 20 feet to the point of
beginning;
EXCEPT the West 30 feet (aka Maricopa County Assessor's Parcel No. 155-11-034)