EXHIBIT 99.1
BUILD TO SUIT LEASE AGREEMENT
THIS BUILD TO SUIT LEASE AGREEMENT (this "Agreement" or this "Lease"), entered
into by and between XXXXXXX XXXXXXX XXXXXXX ("Lessor"), MOTORCAR PARTS DE
MEXICO, S.A. DE C.V.("Lessee") and MOTORCAR PARTS OF AMERICA, INC., a New York
Corporation ("Guarantor").
ARTICLE 1
COVENANTS, REPRESENTATIONS AND WARRANTIES
1.1 Lessor hereby covenants, represents, and warrants that:
1.1.1 That Lessor alone is the fee simple owner and can freely
dispose of a plot of land identified as Xxx 000, Xxxxx 00 (Xxxxxxxx 19), in
Colonia El Lago, in Tijuana, Baja California, Mexico, as evidenced with public
instrument number 11,187, volume 382, dated FEBRUARY 3, 2004, which was granted
before Notary Public No.12 for the City of Tijuana, duly recorded in the Public
Registry of Property and Commerce, a copy of which is attached hereto as EXHIBIT
"A", with an area of 49,951.715 square meters ("Lessor's Real Property").
1.1.2 XXX. XXXXXXX XXXXXXX XXXXXXX is duly authorized to execute
this Agreement through the public deed of the property and such authorization
has not been limited or revoked in any manner whatsoever.
1.1.3 Lessor desires to lease to Lessee approximately 125,000 square
feet of Lessor's Real Property (together with the improvements to be constructed
thereon by Lessor and/or Lessee pursuant to this Agreement and as such
improvements or space may be modified pursuant to the terms of this Agreement,
the "(Leased Premises") more particularly described on EXHIBIT "B" attached
hereto.
1.1.4 Lessor has obtained all the desirable, appropriate, and
necessary governmental, quasi-governmental, and non-governmental permits,
licenses, zoning permits and approvals ("Use Approvals") to allow the
manufacturing, office, and industrial use of the Leased Premises (the "Permitted
Use"). A complete and correct set of the Use Approvals are attached hereto as
EXHIBIT "C". The Leased Premises has access to water, sewer, electric, public
lighting, and to telephone capacity to support the requirements of Lessee at the
Leased Premises with respect to the Permitted Use.
1.1.5 Lessor shall construct on the Leased Premises, certain
improvements as set forth on the "Drawings and Specifications", attached hereto
as EXHIBIT "D" (collectively and including without limitation, an industrial
building consisting of walls, floors, foundations and a roof structure, exterior
parking areas, office areas, cafeteria facilities, a small recreation area and
loading docks), ("Lessor's Construction Obligations").
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1.1.6 Complete, correct, current, and effective copies of all
desirable, appropriate, or necessary governmental, quasi-governmental, and
non-governmental permits, licenses, and approvals ("Construction Approvals")
with respect to Lessor's Construction Obligations and the construction of the
Leased Premises are attached hereto as EXHIBIT "E".
1.1.7 The Leased Premises is free and clear of any liens,
encumbrances, and any other limitations of domain or title, except for
easements, covenants, and other restrictions or utility easements as set forth
in the property title and no lien certificate "libertad de gravamen". Lessor
shall comply at all times throughout the Term with all laws, rules, regulations,
and ordinances applicable to Lessor's Real Property, the Leased Premises, and
the Right of First Refusal Space.
1.1.8 Lessor desires to lease the Leased Premises to the Lessee,
pursuant to the terms and conditions of this Agreement.
1.2 Lessee hereby covenants, represents, and warrants that:
It is a corporation duly organized and existing according to the
Laws of the Mexican Republic, as evidenced by deed No. 80,939, dated, September
28th, 2004 granted before Mr. Francisco Xxxx Xxxxxx Del Xxxxx Notary # 145 and
Xx. Xxxx Xxxxxx Del Xxxxx Notary # 92 for the Federal District in Mexico.
"Lessee's Organization Documents"), a copy of which is attached hereto as
"EXHIBIT "F". XX. XXXXXX XXXXXX JOFFE, evidences to be duly authorized to
execute this Agreement through, Lessee's Organization Documents and the Power of
Attorney evidencing such authority, together with a duly notarized certificate
that such authority has not been limited or revoked in any manner whatsoever.
Lessee desires to lease from the Lessor the Leased Premises
pursuant to the recitals, terms, and conditions of this Agreement.
1.3 Guarantor hereby covenants, represents, and warrants that:
1.3.1 It is a corporation duly organized and existing according to
the Laws of New York, as evidenced by corporate articles "Guarantor's
Organization Documents") a copy of each is attached hereto as EXHIBIT "G".
1.3.2 The Guarantor evidences to be duly authorized to execute this
Agreement through, that certain resolution which has not been limited or revoked
in any manner whatsoever, a copy of which is attached hereto as EXHIBIT "H".
1.3.3 Guarantor desires to guaranty certain of the obligations of
the Lessee hereunder pursuant to the Lease Guaranty Agreement in the form
attached hereto as EXHIBIT "I".
ARTICLE 2
IMPROVEMENTS AND OCCUPANCY
2.1 Lessor, at Lessor's own cost and expense shall perform all work,
provide all labor, furnish all new materials, and obtain all certificates and
permits necessary and
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desirable to construct an industrial and manufacturing facility on an area
consisting of approximately 186,000 square feet in strict accordance with the
Drawings and Specifications.
2.2 By approval of the Drawings and Specifications, Lessee shall not be
liable for the technical compliance of any of the terms and specifications set
forth on the Drawings and Specifications. The approval by Lessee of the Drawings
and Specifications does not relieve Lessor of full responsibility for Lessor's
Build Out, including, without limitation, the proper and correct design,
construction, and erection of the improvements as required by the Drawings and
Specifications and in accordance with the Construction Schedule.
2.3 Lessor will perform all constructions with respect to Lessor's
Construction Obligations in accordance with all applicable laws, ordinances,
regulations, and orders of governmental authorities, quasi-governmental
authorities, and non-governmental authority as well as the Conditions, Covenants
and Restrictions of Parque Industrial El Lago ("Park Regulations") which are
attached hereto as EXHIBIT "J". Lessor shall indemnify and hold harmless Lessee
from any and all costs, expenses, suits, claims and assessments by government
authorities, including but not limited to Social Security Institute Workers,
Housing Institute and Tax Authorities, and any municipal, state, or federal
agency or Mexican environmental authority, as well as from damages and costs
resulting from or arising out of Lessor's lack of performance of any of its
obligations for construction improvements, fixtures, machinery, and equipment to
the Leased Premises required hereunder or pursuant to Lessor's Construction
Obligations.
2.4 Lessor acknowledges and agrees that Lessee may request, and Lessor
shall comply with changes in the Drawings and Specifications provided such
changes do not materially affect the cost thereof. In the event such changes
materially affect the cost of Lessor's Build Out, Lessor and Lessee shall
jointly determine the effects of the change in cost and set forth in a
modification to this Agreement any changes to the terms of this Agreement which
are mutually acceptable to both Lessor and Lessee.
2.5 Lessor shall diligently complete in accordance with the Drawings and
Specifications , the manufacturing, office and industrial facility in order that
Lessee may use and occupy the Leased Premises pursuant to the following
schedule:
2.5.1 Beneficial Occupancy of 125,000 square feet of the Leased
Premises, on or prior to MARCH 15, 2005.
2.5.2 Final Occupancy of the Leased Premises on or prior to APRIL
15, 2005.
2.6 For purposes hereof, Beneficial and Final Occupancy shall be defined
as follows:
2.6.1 Beneficial Occupancy. Shall be defined as the delivery to
Lessee of the industrial and manufacturing portion of the Leased Premises
consisting of only the walls, roof, doors, floor slabs, docks, and inside paint,
all pursuant to the Plans and Specifications, in order that Lessee may move in
its equipment into the Leased Premises, and begin construction of certain
improvements and that such equipment and
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any Lessee's improvements that may be installed, be secured and not be damaged
by weather, or construction.
2.6.2 Final Occupancy. Shall be defined as (i) the substantial
completion of all works and interior finishing of the manufacturing, industrial,
and office areas of the Leased Premises pursuant to Lessor's Construction
Obligations, (ii) all infrastructure to permit Lessee to commence (or, in the
case of casualty or condemnation, re-commence) utilization of the Leased
Premises in accordance with the Permitted Use (iii) Lessor's tendering (or, in
the case of casualty or condemnation, retendering) of occupancy of the Leased
Premises to Lessee, and (v) Lessee has given Lessor written notice of its
acceptance (or, in the case of casualty or condemnation, reacceptance) of
Lessor's Construction Obligations. Notwithstanding, Final Occupancy shall
exclude minor cosmetic items, or a punch list of items not to exceed a total
construction cost of US $100,000 Dollars of the Lessor's Construction
Obligations. In the event such amount is in excess of US $100,000 Dollars,
Lessee's obligation to pay any rent or other sum due to Lessor pursuant to this
Agreement shall be waived until such sum is brought to an amount less than US
$100,000.
2.7 Force Majeure. For purposes of this Agreement, the term "Force
Majeure" shall mean only an actual delay or casualty resulting from strikes,
lockouts, or labor disputes, fire, damage or destruction to the Leased Premises,
explosion, casualty, flood, hurricane, rain, tornado, acts of God or the public
enemy, acts of terrorism, war, invasion, insurrection, rebellion, civil unrest,
riots, and earthquakes, provided, however, that no delay by reason of any Lessor
negligence or default shall qualify as Force Majeure.
2.8 At all times following the execution of this Agreement, Lessee and/or
its representatives, employees, and agents shall have the right to enter the
Leased Premises to inspect the progress Lessor's Construction Obligations and
Lessor shall place the construction log and any and all construction reports, or
other information reasonably requested by Lessee and/or its employees, agents,
or representatives with respect to the progress of Lessor's Construction
Obligations available at the disposal of Lessee and/or its representatives,
employees, and agents, in order that Lessee and/or its representatives,
employees, or agents may be periodically appraised of construction of Lessor's
Construction Obligations.
2.9 Should Lessor fail to conclude Lessor's Construction Obligations in
order that Lessee may occupy the Leased Premises on the date of Final Occupancy
for the Leased Premises, Lessee shall be entitled to receive as liquidated
damages the abatement of one day of rent, when the same shall become first due,
for each calendar day the aforementioned accomplishments are not met provided
however, if any of the aforementioned accomplishments are not accomplished (i)
then for each 30 day calendar days beyond such completion date, Lessee's rent
under this Agreement shall continue to be abated on a per diem basis when the
first became due and an additional 25% thereof on a per diem basis shall be
credited against the first of any future amounts due by Lessee to Lessor under
this agreement and (ii) If the aforementioned delay in delivery continues for 60
calendar days Lessee, at its option, may terminate this Agreement and have no
further rights or obligations with respect thereto or to Lessor and Lessor
agrees to immediately reimburse Lessee all security deposits and/or advanced
rent that Lessee might have delivered to Lessor to such date under the terms of
this Agreement. Any abatement hereunder shall apply towards the first, and if
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applicable, following months on which Lessee commences to effect rental payments
as set forth herein. The parties acknowledge and agree that the date of Final
Occupancy shall be extended for a term equivalent to delays attributable to
Force Majeure.
ARTICLE 3
OCCUPANCY BY LESSEE
3.1 Lessee shall use the Leased Premises for the Permitted Use, any use
permitted thereby or thereunder, or any use not prohibited by this Agreement.
3.2 Lessee may, at its own risk and expense, install in the Leased
Premises such fixtures, equipment, and furniture as it may deem necessary or
desirable, provided, that such items are removed, in accordance with all
applicable laws, ordinances and regulations, at the end of the term without
damage (or such damage repaired prior to the end of the Term) to the Leased
Premises, reasonable wear and tear excepted.
3.3 Lessee agrees to retrieve such fixtures, equipment, and/or furniture
it may have installed in the Leased Premises on or before the date of
termination of this lease. Should the Lessee fail to retrieve such fixtures,
equipment, and/or furniture from the Leased Premises as provided above, the
Lessor shall have the right to deem that said fixtures, equipment, and/or
furniture have been left in the Leased Premises by the Lessee to gratuitously
inure in favor of the Lessor. For purposes of Lessor's rights to Lessee's
fixtures, equipment, and/or furniture at the end of the Term, as the same may be
extended pursuant to the provisions of this Agreement, Lessee acknowledges that
none of such fixtures, equipment, and or furniture are to be construed as useful
improvements to the Leased Premises.
3.4 Lessee may not modify the basic structure or facade of the Leased
Premises without the Lessor's prior written consent, which shall not be
unreasonably withheld, conditioned, or delayed.
ARTICLE 4
TERM OF THE LEASE AND DELIVERY OF THE LEASED PREMISES
4.1 Lessor hereby leases to the Lessee and the Lessee hereby leases from
Lessor the Leased Premises.
4.2 Lessor covenants to deliver the Leased Premises in strict accordance
with the terms of this Agreement.
4.3 The term of this lease shall be for a period of ten (10) years
("Original Term") (as the same may be extended pursuant to the terms of this
Agreement, the "Term"). The Term shall commence as of the date of Final
Occupancy of the Leased Premises, contemplated to be on or before April 15th,
2005.
4.4 Rent Commencement Date: Subject to the terms of this Agreement, the
first month's rent shall be due upon the first day of the Term, contemplated to
be on or before April 15th, 2005. Within thirty (30) days after the Final
Occupancy of the Leased Premises, Lessor and Lessee shall execute and deliver to
each other a Commencement
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Date Memorandum acknowledging and establishing for purposes of this Agreement
(i) the first day of the Term Date and expiration date of the Original Term. The
terms and provisions of this Agreement are effective as of the date of execution
of this Agreement.
4.5 From and after the date hereof, Lessor expressly acknowledges and
agrees that Lessee, its employees, agents, and representatives may enter into
the Leased Premises at any time with the purpose of inspecting Lessor's
Construction Obligations, making initial installations of Lessee Improvements,
provided the same do not thereby unreasonably interfere with Lessor's Initial
Build Out and Lessor's Construction Obligations.
4.6 It is further understood that Lessee's entrance (or the entrance of
Lessee's employee's, representatives and/or agents) onto the Leased Premises at
any time prior to Final Occupancy shall at no time be construed as Lessee's
acceptance of all or any part of the Leased Premises or Adjacent Premises.
4.7 After a written request from Lessor to Lessee, at least 180 days
before the end of the original term or any of its extensions, the Lessee shall
notify the Lessor in writing, at least 150 days before the end of the original
term or of any of its extensions, of Lessee's intent to extend or terminate the
Lease Agreement. The Lessee shall have the right to extend this Lease for two
(2) additional independent five (5) year terms, unless the LESSEE informs the
LESSOR otherwise, in writing, and at least 150 (One hundred and Fifty) days, of
its intent of terminating this agreement on such original date of termination or
on the date of termination of any such extensions.
ARTICLE 5
RENT
5.1 From the first day of the Term, and payable within the first 10
business days of each month, the Lessee shall pay to the Lessor, as monthly
rent, at its address set forth herein, or any other address as instructed in
writing to Lessees at the address set forth herein, the initial amount of
$47,500.00 (Forty Seven Thousand Five Hundred Dollars and 00/100) as set forth
on EXHIBIT "K" in U.S. Dollars or as converted to its Mexican Pesos equivalency
as set forth in this Agreement. No payments shall be due on any day which is a
legal holiday for either Banco Nacional de Mexico, Bancomer, or Banca Serfin, or
on a day on which any of the foregoing are permitted by law to be closed for
business.
5.2 If the first day or the last day of the Term of this Agreement is a
day other than the first day of a calendar month, the amount of the first or
last monthly rental payment and/or all other amounts due under this Agreement
shall be prorated accordingly.
5.3 For purposes of calculating the monthly rent if paid in Mexican Pesos,
the parties shall use the average rate of exchange for currency conversion
quoted by Banco Nacional de Mexico, Bancomer, and Banca Serfin, on the day of
payment or on the immediately preceding business day in case the day of payment
is a day on which any of the aforementioned banks is legally closed for
business.
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5.4 In case of late payment of rent pursuant to this Agreement, the Lessee
agrees to pay to the Lessor a late fee at the rate of 3% per month of any rent
delinquent past all applicable notice and cure periods.
5.5 As of the third year of this lease, the rent shall be annually
increased 2% as well as for each year subsequent thereafter.
ARTICLE 6
INSURANCE
6.1 During the Term, the Lessee shall obtain and maintain in full force
and effect the following insurance policies, which cost shall be paid by the
Lessee. A certificate of each policy shall be made available to Lessor upon the
latter's demand; Insurance to cover Lessee, and naming Lessor as an additional
insured and, if applicable, Lender shall be named the loss payee, against any
civil liability claims, demands, lawsuits, or actions, or against the accidents
or decease of any person injured or deceased at the Leased Premises or from any
damages to the goods of any third party in connection with the use by the LESSEE
of the LEASED PREMISES. The corresponding insurance policy shall cover an
insurable value of at least $1,000,000.00 dollars (One Million Dollars and
00/100 U.S. Cy.) per occurrence.
6.2 During Term, the Lessee, shall obtain and maintain in full force and
effect the following insurance policies, which cost shall be paid by the Lessee.
A certificate of each policy shall promptly be made available to Lessor and
otherwise upon request. Insurance in favor of the Lessee, and naming Lessor as
an additional insured and, if applicable, Lender shall be named the loss payee,
which shall cover the Leased Premises against fire, lightning, explosion,
falling aircraft collision, smoke, storms, hail, vehicle damage, earthquakes,
volcanic eruption, strikes, riots, civil commotion, vandalism, flood, one year
rental interruption and/or any others risks covered under the so called
"extended coverage" (including windows and gas tanks). The corresponding
insurance policy shall cover an insurable value of at least $4,750,000.00
Dollars ( Four Million Seven Hundred Fifty Thousand Dollars and 00/100 U.S.
Cy.).
6.3 The insurance policies referred to in this Article above shall be
obtained with any insurance company authorized to do business in Mexico or
insure liabilities arising in Mexico and acceptable to the Lessor and Lessee in
their reasonable discretion. Likewise, the policies shall provide that the same
may not be amended without prior written notice to Lessor or Lessee, as
applicable. Additionally, said insurance policies shall provide that they shall
not be subject to cancellation or change, except after at least 30 (thirty) days
written notice to the Lessor or Lessee, as applicable.
ARTICLE 7
ENVIRONMENTAL
7.1 The Lessor emphasizes that the Lessee herein, must be attentive to, as
well as strictly and diligently observe all of the applicable environmental laws
and regulations ("Environmental Laws") which apply to their activities or
presence in the Industrial Park. As such, the Lessee acknowledges and
understands that any
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Hazardous Substances (as defined pursuant to the Environmental Laws), if
improperly generated, handled, stored, transported, recycled or disposed of, can
be injurious to the personnel working in the Park, to the residential areas
bordering the Park, as well as to the wildlife and environment as a whole.
Accordingly, consistent with the Lessor's firm commitment to maintaining the
Industrial Park as an ecologically friendly area, the Lessee obligates itself to
make use of the Leased Premises in conformity with all of the applicable Mexican
environmental laws, regulations and norms.
7.2 The Lessor warrants and represents that to the best of its knowledge,
to the extent any generation, use, handling, storage, treatment or
transportation of Hazardous Substances has occurred on the Leased Premises prior
to this Lease, the same has been in conformity with all of the applicable
Mexican environmental laws, regulations and norms. The Lessor additionally
warrants and represents that to the best of its knowledge, no release, leak,
discharge, spill, disposal or emission of Hazardous Substances has occurred on
the Leased Premises, and that the Leased Premises is free of Hazardous
Substances as of the date of this Lease.
ARTICLE 8
TAXES AND COSTS
8.1 The Lessor shall be responsible for payment of the income and assets
taxes to which it is obligated by applicable law, notwithstanding any provision
of this Agreement to the contrary. On its part, the Lessee shall be responsible,
subject to the procedures set forth herein, for the payment of the I.V.A. tax
and any real property taxes which may be levied upon the Leased Premises. The
Lessee shall be responsible to Lessor for the cost of such real property taxes,
and shall have no I.V.A. tax or property tax related obligations to the
Association, but only to the extent of Lessee's proportionate share of the
Leased Premises in proportion to the whole of the tax lot and upon presentation
from Lessor of a certification of payment of said taxes and a valid invoice in
the name of Lessee for such amount. Lessor shall provide official statements of
taxes and any other amounts due pursuant to this provision, each issued by the
applicable government authority at least 10 days before such amounts become due
and payable. Lessee shall have the right to contest against the applicable
government authority any such assessments bills or amounts, provided that Lessee
does so in a diligent and expeditious manner.
8.2 Except for all obligations of Lessor pursuant to this Agreement or
applicable law, all other costs, fees, and/or any other related cost caused or
to be caused in connection with Lessee's occupancy of the Leased Premises shall
be solely borne by the Lessee.
ARTICLE 9
REPAIRS AND MAINTENANCE
9.1 Lessor.
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9.1.1 Promptly after written notice from the Lessee, the Lessor
shall repair any defective conditions of the structural aspects of the Leased
Premises which shall consist of the foundations, exterior walls, Lessor built
interior walls, floor slab and the roof field of the Leased Premises (each a
"Structural Defect"); provided damage to the same was not caused by Lessee's
gross negligence or willful misconduct or that of Lessee's employees,
representatives, or agents. The parties further agree that the repair of the
foregoing shall be deemed as the only necessary repairs for which the Lessor
shall be responsible hereunder. Lessor shall proceed diligently to make such
repairs as soon as practically possible, and shall continue to do so until the
same are completed.
9.2 Lessee.
9.2.1 Lessee shall be responsible for the repairs to the damages
suffered in the Leased Premises other than those referred to in clause 9.1.1
hereinabove. The damages referred to in this paragraph include, but are not
limited to, the repairs and maintenance that shall be given to the plumbing
systems, sewage, telephone, gas, as well as for the equipment, interior walls,
interior and exterior paint, ceilings, air conditioning and ventilation systems
and appliances, heaters, doors and windows, glass, docks, dock levels,
landscaping, lighting, electrical, etc., of the Leased Premises, and in general,
everything not considered a Structural Defect or repair under clause 9.1.1.
above, a list of maintenance requirements is attached hereto as EXHIBIT "L". All
repairs made by Lessee to any of Lessor's Construction Obligations not covered
by Section 9.1, must be equal in quality and kind to the original work. All the
expenses resulting of disregarding and the negligence in the Leased Premises, or
a violation of the obligations of the Lessee set herein, shall be borne by the
Lessee.
9.2.2 Except for Lessor's repair obligations pursuant to this
Agreement, Lessee shall maintain all parts of the Leased Premises, for which it
is obligated pursuant to the provisions of this Agreement, in a neat, clean, and
orderly condition, free of garbage, debris, and illegal materials.
ARTICLE 10
LIMITATION OF LIABILITY AND INDEMNIFICATION
10.1 Except for (i) matters covered, or required to be covered, by an
insurance policy which Lessor is obligated to maintain pursuant to this
Agreement, (ii) failure to comply with Lessor's obligations pursuant to this
Agreement or (iii) intentional or negligent acts or omissions of Lessor,
Lessor's agents, representatives, or employees, Lessor shall not be liable to
Lessee for any loss or damage of any kind or nature to the Leased Premises, the
Adjacent Premises, or the Right Of First Refusal Space (defined below) whether
such space is elected by Lessee to be occupied or not.
10.2 Lessee recognizes that additions, replacements, and repairs to the
Park may be made from time to time. Accordingly, the Lessor shall make its best
efforts not to substantially interfere with Lessee's use and enjoyment of the
Leased Premises.
10.3 If the Lessor is held responsible for any obligation undertaken by
the Lessee pursuant to this Agreement, the Lessee agrees to indemnify and hold
Lessor harmless from any and all claims for damages or losses of any kind,
arising from the
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gross negligence or willful misconduct of Lessee or its contractors, licensees,
agents, invitees, or employees, including reasonable attorney's fees, incurred
thereby.
10.4 If the Lessee is held responsible for any obligation undertaken by
the Lessor pursuant to this Agreement, the Lessor agrees to indemnify and hold
Lessee harmless from any and all claims for damages or losses of any kind,
arising from the gross negligence or willful misconduct of Lessor or its
contractors, licensees, agents, invitees, or employees, including reasonable
attorney's fees, incurred thereby.
ARTICLE 11
UTILITY SERVICES
11.1 Except for the obligations of Lessor pursuant to this Agreement,
Lessee agrees to request directly from the corresponding utility companies that
the public services the Lessee may need be rendered by such companies, and shall
promptly pay for any and all utilities, capacity charges, and related services
furnished to the Lessee in the Leased Premises.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
12.1 The Lessee may not assign its rights and obligations under this
Agreement, nor may it sublet the Leased Premises unless it obtains the prior
written authorization of the Lessor, which such authorization shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding any provision to
the contrary, Lessee shall have the right to assign its rights and obligations
under this Agreement or sublet all or a portion of the Leased Premises, without
Lessor's prior consent, to any affiliate of Lessee or any purchaser or all or
substantially all of Lessee's assets or stock.
12.2 The Lessor shall be entitled to assign, in whole or in part, its
rights and obligations under this Agreement. Consequently, the Lessee hereby
grants authorization to the Lessor so that the latter may formalize, the
assignments which it may deem appropriate.
ARTICLE 13
RENT WITHHOLDING
13.1 Except as provided in this agreement, the Lessee hereby waives any
right to withhold any rental payments. Accordingly, except as provided in this
Agreement, the Lessee shall deliver, prior to the expiration of any and all
applicable notice and cure periods any and all rent to which the Lessor may be
entitled to and agrees, except as provided in this Agreement, to assert any
claim, demand, or other right against the Lessor only by an independent
proceeding.
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ARTICLE 14
ACCESS TO THE LEASED PREMISES
14.1 Upon reasonable advance written notice to Lessee, the Lessor or its
authorized representatives shall have the right to enter the Leased Premises
during Lessee's regular business hours, and in emergencies at all times, to make
repairs, additions, or alterations to the Leased Premises which it may be
authorized or obligated to do under this Agreement, but only after proper
written notice from Lessee of such emergency or situation. In any event, the
Lessee shall have the right to escort Lessor or any employees, representatives
or agents of the Lessor.
14.2 Within the last 3 months of the Term and upon advance notice to
Lessee, Lessor shall have the right to show, during Lessee's regular business
hours and with a representative of Lessee present, the Leased Premises to any
prospective tenants. Likewise, upon advance notice, the Lessor shall have the
right to post customary rental signs in the facade of the Leased Premises in
order to promote the same.
ARTICLE 15
DAMAGE OR DESTRUCTION
15.1 Total.
In the event the whole or substantial part of the Adjacent Premises
and/or Leased Premises are damaged or destroyed so as to impede the Lessee's
operations, Lessee shall within 10 business days of such casualty notify Lessor
thereof ("Lessee's Total Casualty Notice"). Thereafter, the Lessor shall, within
10 (ten) days of delivery of Lessee's Total Casualty Notice determine whether
the Leased Premises can be restored to the condition prior to such casualty
within 6 (six) months after the release of the Leased Premises by all municipal
authorities and notify Lessee thereof within 15 business days of delivery of
Lessee's Casualty Notice. If the Lessor notifies Lessee, in good faith, that the
Leased Premises cannot be restored within 6 (six) months after the release of
the Leased Premises by all municipal authorities either the Lessor or the Lessee
shall have the right to immediately terminate this Agreement by means of a
written notice to the other party and all obligations arising on the part of
Lessee from and after the date of such casualty shall be null, void, and of no
effect. If the Lessor determines that the Leased Premises can be restored within
6 months after the release of the Leased Premises by all municipal authorities
the Lessor shall, at its own cost and expense, proceed diligently to reconstruct
the Leased Premises, but only up to the amount which it may obtain from the
insurance coverage mentioned in ARTICLE 6 above.
15.2 Partial.
In the event that the Leased Premises suffer any damage or
destruction that, in Lessee's reasonable discretion does not prevent the Lessee,
in a substantial way, from continuing the normal operation of its business on
the Leased Premises, the Lessor shall after the release of the Leased Premises
by all municipal authorities, promptly repair said damage and/or destruction to
the condition prior to such casualty.
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In said case all payments due from Lessee hereunder shall continue unabated,
during the reconstruction phase. Notwithstanding any provision of this Agreement
to the foregoing, if such repair or restoration is not completed and Final
Occupancy of the affected portion of the Leased Premises is not achieved within
6 months after the release of the Leased Premises by all municipal authorities
the Lessee shall have the right to immediately terminate this Lease Agreement in
full, or with respect to the portions of the Leased Premises suffering the
casualty (and all such obligations and amounts payable pursuant to this
Agreement shall be appropriately abated, prorated, waived, and diminished) by
means of a written notice to Lessor and all obligations arising on the part of
Lessee from and after the date of such casualty shall be null, void, and of no
effect and explicitly waived by Lessor.
ARTICLE 16
CONDEMNATION
16.1 In the event the whole of the Leased Premises is taken by
expropriation, condemnation, or eminent domain for any public or quasi-public
use or purposes, this Lease shall terminate and conclude on the date that the
possession is taken by the condemnor and all obligations arising on the part of
Lessee from and after the date of such taking shall be null, void and of no
effect and explicitly waived by Lessor.
16.2 If part of the Leased Premises is taken by expropriation,
condemnation, or by right or eminent domain, or for public or quasi-public use
or purpose, this Lease shall continue in full force and effect, and Lessor
shall, at its own expense, within 3 months of such taking, repair and restore
the Leased Premises, to a complete architectural unit, possessing the same
usefulness, design and construction as was possessed by the Leased Premises
immediately before such taking or condemnation, subject to any area diminished
thereby. Notwithstanding, if Lessee determines, in its reasonable discretion,
that the Leased Premises no longer serve its purposes or desires, Lessee shall
have the right to terminate this Agreement by notice to Lessor and all
obligations arising on the part of Lessee from and after the date of such taking
shall be null, void and of no effect and explicitly waived by Lessor. During the
period required for repair and restoration, all payments due from Lessee
hereunder shall continue unabated, during the period required for repair and
restoration. Should a dispute arise as to the actual usable space remaining, the
parties agree to resolve such dispute following the procedure set forth in the
preceding section.
16.3 Taking by expropriation, condemnation or eminent domain shall
include: the exercise of any similar government power and sale and purchase or
other disposition of the Leased Premises in Mexican Law, regulation or
governmental order which physically or constructively prevents Lessee from using
all or part of the Leased Premises.
ARTICLE 17
CERTIFICATES
17.1 Lessee and Lessor shall, within ten (10) days of receipt of a written
request made by the other party, deliver to the requesting party a statement in
writing,
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certifying that this Agreement is unmodified and in full force and effect, (or
if there have been modifications, listing the same, together with copies thereof
and stating that the Agreement is in full force and effects as modified); the
dates to which the rent and any other charges have been paid in advance and
whether Lessor's Construction Obligations have been completed in accordance with
this Agreement and that to the best of the certifying parties knowledge there is
no default or condition, subject to notice and or lapse of time, that would
result in a default by the other party to this Agreement. It is intended that
any such statement may be relied upon by any person, assignee, subtenant,
prospective purchaser, or lending institution interested, in any manner, in all
or part of the Leased Premises.
ARTICLE 18
COVENANTS AND RESTRICTIONS OF THE PARK
18.1 The Lessee agrees to be bound by the Park Regulations ("CCR'S") of
Parque Industrial El Lago ("Park").
18.2 Accordingly, the Lessee agrees, that if and when the Park Association
("Association") has been established and the Lessee has been notified in
writing, at least 60 days in advance of any obligations accruing to Lessee as a
result thereof, Lessee shall pay, prior to delinquency, to the Association on a
schedule set forth by the Association but not more than on a semiannual basis
the maintenance fee of the PARK provided for in CCR's of the Park, according to
the procedures and proportions established by the Association, of which the
Lessee shall be a member, but in no event shall any such payments to the
Association or otherwise with respect to the Park, exceed a rate of $1.00 (One
Dollar) per square meter of land of the total land area of the Leased Premises
per year. If the Association adjusts its fees downward, Lessee shall be notified
within 15 business days thereof and Lessee's payment obligations to the
ASSOCIATION shall be modified downward in accordance therewith.
ARTICLE 19
DEPOSIT AND GUARANTY
19.1 Lessor hereby acknowledges that it has received from Lessee, a
deposit, in the amount of $ 285,000.00 Dollars (Two Hundred Eighty-five Thousand
Dollars and 00/100 U.S. Cy.) ("Deposit"). Said Deposit shall be reimbursed to
the Lessee, in the following manner: A cash payment in U.S Dollars and in the
amount of $190,000.00 (One Hundred Ninety Thousand Dollars and 00/100 U.S. Cy.)
at the time made by Lessee (irrespective of currency conversion matters) by wire
transfer in immediately available funds and payable in accordance with the wire
instructions ("Lessee's Wire Instructions") set forth on EXHIBIT "M" attached
hereto upon the earlier to occur of the funding of the financing of Lessor's
construction of the Leased Premises or within 30 days after Final Occupancy of
the Leased Premises, the remaining $95,000.00 (Ninety-five Thousand Dollars
00/100 U.S. Cy.) shall remain as Security Deposit for the term of the Lease and
any of its extensions and be returned to Lessee, without interest, and minus any
possible deductions for damage or repairs, after the Lessor carries out a
thorough inspection of the condition of the Leased Premises.
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19.2 As an inducement for Lessor to enter into this Agreement, Motorcar
Parts of America, Inc. has, simultaneously executed herewith, the Lease Guaranty
Agreement for the benefit of Lessor.
ARTICLE 20
NOTICES
20.1 Notwithstanding any provision of this Agreement to the contrary, all
notices, demands, service of process or other communications hereunder shall be
in writing and shall be deemed to have been duly received upon receipt by
facsimile transmission as evidenced by receipt transmission report, or upon the
delivery by (or refusal of receipt from) a recognized and reputable overnight
courier to:
if to Lessor, to: Xxxxxxx Xxxxxxx Xxxxxxx
Privada Misiones #1123
Parque Industrial Misiones
Tijuana, BC, Mexico 22500
Attn: Xxxx Xxxxxxx III
Facsimile No.: (000)000-0000
with a copy to: XX Xxxxxx Xxxxx Bank of Texas
000 Xxxx Xxxx Xx. Drawer # 140
El Paso, Texas 79980
Attn: Xxxxx Xxxxxxxxx
Facsimile No.: 000-000-0000
if to Lessee, to: MPA de Mexico, S.A. de C.V.
c/o Motorcar Parts of America, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
with a copy to: Motorcar Parts of America, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
ARTICLE 21EVENTS OF DEFAULT
21.1 Each of the following upon the expiration of all applicable notice
and cure periods shall be a default of Lessee under this Agreement:
21.1.1 Subject in all cases to any holdover rights Lessee may have
pursuant to this Agreement, if Lessee fails to surrender the Leased Premises
upon the expiration of the Term.
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21.1.2 Lessee's failure to pay any rent due and payable hereunder.
21.1.3 Failure of Lessee to perform of any of the Lessee's
covenants, agreements or obligations hereunder.
21.1.4 The filing of a petition of bankruptcy against the Lessee,
said petition remaining undischarged for a period of 90 days.
21.1.5 In case of an attachment, execution, or other judicial
seizure of all or substantially all of Lessee's assets, such attachment,
execution or other seizure remaining undismissed or undischarged for a period of
90 days after the levy thereof.
21.1.6 In case of the appointment of a trustee or receiver to take
possession of all or substantially all of Lessee's assets, if such appointment
is not revoked within 90 days.
21.2 Upon occurrence of any one of the foregoing Lessee's defaults, beyond
any and all applicable notice and cure periods, Lessor shall have the right, at
its option and in addition to other rights or remedies granted by law, to do
either of the following;
21.2.1 Immediately terminate this Agreement, upon notice to Lessee
and proceed with the ejection of Lessee from the Leased Premises. In case Lessor
initiates any action to terminate this Agreement, the Lessee shall reimburse the
Lessor for any actual and documented costs incurred by Lessor and directly
related to the Lessee's ejection from the Leased Premises. The Lessee
acknowledges that this clause shall not be construed as an authorization to
occupy, in the event of a default beyond all applicable notice and cure periods
(subject to any holdover rights of Lessee pursuant to the terms of this
Agreement), the Leased Premises beyond the term set forth herein.
21.2.2 Claim specific performance. In the case of default beyond all
applicable notice and cure periods as specified above, Lessor shall, in addition
to all other remedies, have the right to declare and collect the entire unpaid
balance of rent to the end of the last year of the Original Term or applicable
extension thereof then in effect and also declare all other sums due to Lessor
pursuant to this Agreement, immediately due and payable.
21.2.3 In the event that the Leased Premises are leased, in whole or
in part, to another Lessee during the remainder of the Original Term or
applicable extension thereof, and the Lessee paid the rent or any other charges
due under this Agreement or to the Park or the Association, Lessor shall
promptly refund to Lessee, in full and immediately available funds pursuant to
Lessee's Wire Instructions less any amounts set forth in this article actually
directly incurred and documented by Lessor with respect to releasing all or a
portion of the Leased Premises.
21.2.4 Notwithstanding any provision to the contrary in this
Agreement, Lessor shall use its best efforts to mitigate any and all damages
suffered, or potentially suffered by a default of Lessee hereunder beyond any
and all applicable notice and cure periods.
21.3 Default by Lessor.
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21.3.1 Lessor shall be in default upon the failure of performance of
any obligation, required to be performed, by Lessor pursuant to this Agreement
or upon the breach of any covenant, representation or warranty of Lessor under
this Agreement. Upon any such default by Lessor under this Agreement, Lessee may
exercise any of its rights provided at law or in equity. Lessor shall indemnify
and hold harmless Lessee from and against any and all claims, suits, damages,
costs and expenses arising or accruing out of any of the foregoing.
21.3.2 Abatement of Rent. In the event that Lessor has been notified
in writing by Lessee of Lessor's default and all cure periods have expired and
Lessor has not repaired or cured the default condition, then Lessee shall have
the right to cure Lessor's default condition as per the following procedure:
Lessee shall request 3 contractor bids and submit them to Lessor for approval.
Lessor shall review and approve a contractor from the submitted bids within 3
business days after receipt of said bids. Lessee shall then have the right to
perform Lessor's obligations in regards to the specific default condition and
deduct all repair costs related to the cure of the Lessor's default against any
future rents or amounts owed by Lessee to Lessor.
ARTICLE 22
EXPANSION SPACE
22.1 The parties agree that during the first year of this Agreement, the
Lessor shall have the right to lease the space ("Expansion Space") on Lessor's
Real Property that does not comprise the Leased Premises, as further described
on EXHIBIT "N" attached hereto, only to short-term users. At any time, during
the first year of the Term of this Agreement with Motorcar Parts de Mexico, S.A.
de C.V.("Lessee"), Lessee shall have the right, after written notice to the
Lessor, to demand the vacancy of the Expansion Space of the aforementioned
short-term users, within 90 days of receipt of written notice by Lessor from
Lessee ("Vacate Notice") and Lessor shall use its best efforts to cause such
vacancy.
a) If any Lessee of the Expansion Space, fails to vacate the
Expansion Space within 90 days of the Vacate Notice, Lessor
shall hold harmless and indemnify Lessee for any differential
in rents actually incurred by Lessee if Lessee chooses, in its
sole discretion to take comparable space ("Replacement Space")
(without the need to be similar to the Expansion Space).
b) After the first year of this Agreement, and continuing
throughout the first 36 months of the Term, the Lessee shall
have the right of first refusal over the Expansion Space. The
right of first refusal with respect to the Expansion Space
shall be governed by the provisions of the Article entitled
`Right of First Refusal'.
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ARTICLE 23
RIGHT OF FIRST REFUSAL
23.1 The Lessor grants the Lessee a first right of refusal ("Right Of
First Refusal") over the Expansion Space ("Right Of First Refusal Space"). This
Right Of First Refusal shall be effective as of the date hereof. Lessor shall,
within 5 business days of receipt thereof, provide Lessee with a notice ("Offer
Notice") stating that Lessor has received a bona fide written offer which it is
willing to accept for the leasing of all or a portion of the Right Of First
Refusal Space and shall attach such offer, in full, to the Offer Notice. Lessor
shall have no right to lease the Right of First Refusal Space, or any portion
thereof, without first complying with each provision of this Article Lessee
shall have 5 business days after its receipt of the Offer Notice to notify
Lessor in writing whether or not Lessee will lease the Right Of First Refusal
Space upon the terms set forth in the Offer Notice whose rate shall not be less
then the prevailing rate being paid by Lessee at the time of the Offer Notice.
If Lessee elects to lease the Right Of First Refusal Space pursuant to its Right
Of First Refusal, then notwithstanding anything contained in the Offer Notice,
the term of such rental shall expire and/or be extended simultaneously with the
Term Leased Premises. If Lessee fails to notify Lessor with respect to its
election with regard to the Offer Notice in the time period set forth above,
Lessor shall have the right to lease the space set forth in the Offer Notice
upon the same terms and conditions thereof or any other negotiated terms Lessor
deems satisfactory. If at any time Lessee exercises its right pursuant to its
Right Of First Refusal, Lessor and Lessee shall work in good faith to enter into
a lease agreement for the Right Of First Refusal Space upon the terms of this
Agreement and this Article, subject to the prevailing rate being paid by Lessee
on the Leased Premises at the time Lessee exercises its right.
ARTICLE 24
NOTICE AND CURE PERIODS
24.1 Notwithstanding any provision in this Agreement to the contrary,
Lessee or Lessor shall not be deemed in breach, violation or default of this
Agreement unless (i) with respect to monetary obligations, if either the Lessee
or Lessor fails to so perform such obligation within 15 business days after
notice of failure to perform from Lessor or Lessee as the case may be and (ii)
with respect to non-monetary obligations, Lessee or Lessor as the case my be
fails to so perform such obligation within 30 business days after notice of
failure to perform from Lessor or Lessee as the case may be, provided, however,
that Lessee or Lessor as the case my be shall not be deemed to be in violation,
default or an Event of Default with respect thereto if the nature of such
failure to perform is of the sort that cannot be reasonably be performed or
cured within such aforementioned period, then Lessee or Lessor as the case my be
shall not be deemed to be in breach, violation, or default with respect thereto
provided Lessee or Lessor as the case may be diligently commences such cure
within such period and thereafter diligently proceeds to rectify and cure such
default.
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ARTICLE 25
SUBORDINATION AND ATTORNMENT
25.1 Lessor represents, and warrants to Lessee that at the time of
execution of this Lease Agreement, no ground leases, deeds of trust, or
mortgages (collectively, "Security Instruments") encumber the Leased Premises.
25.2 Subject to the provisions of this Article, (a) this Agreement shall
be subject and subordinate to all future Security Instruments hereafter in force
against the ground underlying the Leased Premises and to all renewals,
extensions, modifications, consolidations and replacements thereof and (b) in
the event any proceedings are brought for the foreclosure of any such Security
Instrument or deed in lieu thereof (or if any ground lease is terminated),
Lessee agrees to attorn to the lienholder or purchaser or any successors thereto
upon any such foreclosure sale or deed in lieu thereof (or to the ground
Lessor), if so requested to do so by such purchaser or lienholder or ground
Lessor, and to recognize such purchaser or lienholder or ground Lessor as the
Lessor under this Agreement, provided, however, as a condition precedent to each
such subordination under clause (a) above, and each such attornment and
recognition under clause (b), above, such lienholder or purchaser or ground
Lessor shall agree in writing, in a form satisfactory to Lessee in its sole
discretion, to accept this Agreement, perform Lessor's obligations hereunder and
not disturb Lessee's occupancy for the entire Term, so long as there does not
remain outstanding an uncured Lessee default beyond all applicable notice and/or
cure periods. Lessor (and/or its successors or assigns) agrees to provide Lessee
with non-disturbance agreement(s), satisfactory to Lessee in its sole discretion
(and otherwise agreeing to recognize Lessee's rights, including, but not limited
to rights, previously accrued, under any offset or abatement provision expressly
provided herein) in favor of Lessee.
ARTICLE 26
SIGNS
26.1 Lessor hereby agrees that Lessee, at Lessee's sole cost and expense
(except as otherwise set forth in this Agreement), shall have the right during
the Term to install such identification signage and/or logo signage on the walls
and/or fences of the Leased Premises and/or install such monument signs (the
"Signage") as Lessee may desire, provided that, in each instance, Lessee shall
obtain Lessor's prior written approval therefor, which approval shall not be
unreasonably withheld, conditioned, or delayed. The Signage shall be installed
and maintained by Lessee, at Lessee's sole cost and expense, in a commercially
reasonably manner. Within thirty (30) days of the expiration or earlier
termination of this Agreement, Lessee shall, at Lessee's sole cost and expense,
cause the Signage to be removed from the Leased Premises, and the portion(s) of
the Leased Premises on which the Signage was located to be restored to their
condition existing prior to the installation of the Signage. If Lessee fails to
so remove the Signage and restore the area of the portion(s) of the Leased
Premises on which the Signage was located within such period, then Lessor may
perform such work on behalf of Lessee and all actual and documented costs and
expenses incurred by Lessor in connection therewith shall be paid by Lessee to
Lessor within thirty (30) days of demand and invoice with supporting evidence
therefore. Lessee's rights under this
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Section shall be freely transferable by Lessee to any assignee of this Lease or
any sublessee of any portion of the Leased Premises but such transfer shall not
diminish Lessee's obligations hereunder.
ARTICLE 27
BROKERS
Neither Lessor nor Lessee has engaged or dealt with any broker or finder
in connection with the matters set forth in this Agreement, except Mr. J.P. De
Kervor of Maquila Properties ("Broker"). Lessor shall pay all fees and
commission to Broker or any other broker, finder or agent with which Broker has
worked. Lessor and Lessee shall indemnify and hold one another harmless from any
claims, costs, damages or liabilities (including attorney's fees) arising from
any breach of the representations set forth in this Article or if the same shall
be based on any statement, representation or agreement by Lessor or Lessee with
respect to the payment of any brokerage commissions or finders fees.
ARTICLE 28
QUIET ENJOYMENT
28.1 Lessee shall have and peaceably enjoy the Leased Premises during the
Term of this Agreement, subject to all of the terms and conditions contained in
this Agreement, from and against all persons and through Lessor.
ARTICLE 29
HOLDOVER TENANCY
Subject to the terms of this Article, if Lessee holds possession of the
Leased Premises after the expiration or termination of the Term of this
Agreement, by lapse of time or otherwise, without the express or implied consent
of Lessor, Lessee shall become a Lessee at sufferance upon all of the terms
contained herein, except as to Term and rent. During such holdover period,
Lessee shall pay to Lessor a monthly rent in an amount equal to one hundred
twenty-five percent (125%) of the rent applicable during the last rental period
of the Term. The monthly rent payable for such holdover period shall in no event
be construed as a penalty or as liquidated damages for such retention of
possession. Lessee shall have no liability or obligation whatsoever, except as
set forth in this Article, for damages to Lessor, any affiliate of Lessor or any
third party by reason of such holding over or failure to surrender possession of
the Lease Premises. Notwithstanding any provision to the contrary contained
herein, if Lessee fails to surrender the Leased Premises within sixty (60) days
after the termination or expiration of this Agreement Lessor expressly reserves
the right to require Lessee to surrender possession of the Leased Premises upon
the expiration of the Term of this Agreement or upon the earlier termination
hereof or at any time during any holdover and the right to assert any remedy at
law or in equity to evict Lessee in connection with any such holdover.
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ARTICLE 30
MORTGAGEE PROVISIONS
30.1 If Lessor finances the construction of the improvements contemplated
by this Lease, Lessor shall notify Lessee of such financing and if Lessee is
notified thereof, then while such debt remains outstanding:
30.1.1 The lender of such construction financing (the "Lender")
shall be named as loss payee on the insurance policies required to be maintained
by Lessee pursuant to the Lease.
30.1.2 This Lease may not be terminated by Lessor without the prior
written consent of Lender.
30.1.3 All notices with respect to Lessor's default under the Lease
shall be given simultaneously to Lender. Lender shall have the right, but not
the obligation, to cure any such default or perform any obligation of Lessor to
be performed under the Lease.
30.1.4 This Lease may not be amended or modified in a way that
affects Lender's ability to foreclose on Lessor's interest in the Lease without
the prior written consent of Lender, which such consent shall not be
unreasonably withheld, conditioned or delayed.
ARTICLE 31
MISCELLANEOUS
31.1 The parties agree that this Agreement shall be governed by the laws
of State of Baja California, Mexico. For everything pertaining to the
interpretation and compliance of this Agreement the parties hereby expressly
submit to the jurisdiction of the Civil Courts of the City of Tijuana, Baja
California, waiving any other jurisdiction which might be applicable by reason
of their present or future domiciles or otherwise.
31.2 In case any party fails to execute any action against the other as to
protect a certain right under this agreement, said failure shall not be
construed as a waiver of any other rights derived herefrom.
31.3 This agreement may only be modified by written agreement signed by
the authorized representatives of the parties hereto. Furthermore, the parties
agree that the Lessor shall not have the power to amend this Agreement so as to
reduce the rent, decrease the term or modify or negate any substantial
obligation without the written consent of Lessee. If the Lessor fails to obtain
the Lessee's approval to carry out the foregoing, the amendment of the terms and
conditions above mentioned shall have no effect whatsoever against the Lessee.
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31.4 In case any party hereto exercises an action against the other in
order to demand the performance of this agreement, the prevailing party shall be
entitled to reasonable attorney's fees.
31.5 Each party shall execute such further documents as shall be
reasonably requested by the other party, but only to the extent that the effect
of said documents is to give legal effect to rights and obligations stated forth
in this Agreement.
31.6 In case any competent court with jurisdiction over this Agreement
declares that any provision hereunder is null and void, the remaining clauses
continue in full effect.
31.7 This Agreement contains all of the agreements and understandings
relating to the leasing of the Leased Premises and the obligations of Lessor and
Lessee in connection with such leasing. Lessor has not made, and Lessee is not
relying upon, any warranties, or representations, promises or statements made by
Lessor or any agent of Lessor, except as expressly set forth herein. This Lease
supersedes any and all prior agreements and understandings between Lessor and
Lessee and alone expresses the agreement of the parties.
31.8 This Agreement shall not be amended, changed or modified in any way
unless in writing executed by Lessor and Lessee. Neither party shall have waived
or released any of its rights hereunder unless in writing and executed by such
party.
31.9 Except as expressly provided herein, this Agreement and the
obligations of Lessor and Lessee contained herein shall bind or inure to the
benefit Lessor and Lessee and their respective successors and assigns.
31.10 Any obligations of Lessor and Lessee, as the case may be, accruing
prior to the expiration of this Agreement shall survive the termination of this
Agreement, and Lessor and Lessee, as the case may be shall promptly perform all
such obligations whether or not this Lease has expired.
31.11 All captions, headings, titles, numerical references and computer
highlighting are for convenience only and shall have no effect on the
interpretation of this Agreement.
31.12 Lessor shall record a memorandum, or a full copy, of this Agreement
within the proper public registry and provide a recorded copy thereof to Lessee
within 30 days of the date of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement in as
of the date first set forth above.
LESSOR LESSEE
Xxxxxxx Xxxxxxx Xxxxxxx Motorcar Parts de Mexico, S.A. de C.V.
By:____________________________ By:____________________________________
Name: Xxxxxxx Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxx Xxxxx
Date:__________________________ Date:____________________________
GUARANTOR
Motorcar Parts of America, Inc.
By: _________________________
Name: _______________________
Date: ________________________
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