EXHIBIT 10.37
L E A S E A G R E E M E N T
LEASE AGREEMENT ENTERED INTO BY AND BETWEEN XXXX XXXX XX XXXX XXXXXXX XXXXXXX,
XXXXXXX XXXXXXX XX XXXXXXX, XXXXXXXXX XXXXXXX XXXXXX XXXXXXX XXXXXXX AND XXXXX
XXXXXXXXX CUQUITA XXXXXXX XXXXXXX (HEREINAFTER REFERRED TO AS THE "LESSOR") AND
ELECTRONICA LOWRANCE DE MEXICO, S.A. DE C.V., REPRESENTED HEREIN BY XX. XXXXXXX
X. XXXXXXXX (HEREINAFTER REFERRED TO AS THE "LESSEE"), PURSUANT TO THE FOLLOWING
RECITALS AND CLAUSES.
R E C I T A L S
I.- LESSOR hereby states:
A. That they are the co-owners of lots 313, 314, 315 at Colonia Xxxxxxx,
Ensenada, Baja California, Mexico (the "Lots").
B. That on August 25 and 30 of 1996, the parties of the present agreement
executed a lease agreement (hereinafter referred to as "Lease Agreement") the
subject of which is Fraction B with an area of 18,393.75 square meters.
C. That in clause sixteenth of the Lease Agreement, the parties thereto agreed
that LESSEE would have the option and right to lease the LAND (hereinafter
referred to as the "LAND") located to the east of Fraction B, which has an area
of 16,443.00m2, on the terms and conditions contained therein.
D. That the LAND is free and clear of all liens and encumbrances that could
affect the use and enjoyment of same.
E. That LESSEE executed its option to lease the LAND, and that they are willing
to lease the LAND to the LESSEE pursuant to the terms and conditions of this
agreement.
II.- LESSEE hereby states that:
A. It is a corporation duly organized and existing according to the Laws of the
Mexican Republic, as evidenced by public deed No. 126,217, dated September 8,
1993, granted before Mr. Lic. Xxxxxxx Xxxxxx Mafud, Notary Public No. 2 for
Tijuana, Baja California, Mexico.
B. That in accordance with the public deed above mentioned, he is duly
authorized to execute this agreement, and further states that such authority has
not been limited or revoked in any manner whatsoever.
C. That it wishes to lease from the LESSOR the LAND pursuant to the terms and
conditions hereunder.
IN VIEW OF THE FOREGOING, the parties hereto agree as follows:
C L A U S E S
FIRST.- LEASE AND DELIVERY
The LESSOR hereby leases the LAND to the LESSEE, which is described in recital I
(C), of the present instrument, same that for greater precision is described in
a plan, that signed by The parties is attached hereto and forms of integral part
of same as Exhibit "A".
SECOND.- OCCUPANCY BY LESSEE
The LESSEE shall use the LAND for clean and light operations as per the
authorizations and licenses which the LESSEE shall obtain from the environmental
and other competent authorities, and therefore, agrees not to use the LAND for
chemical, heavy or other industries of similar nature.
THIRD .- LEASE TERM
3.1 The term of this lease shall commence on October 1, 1997 (the Effective
Date) and shall end on September 30, 2006, subject to the stipulations contained
in clause 10.1 of this agreement.
3.2 LESSEE shall have the option to renew this lease for four (4) additional
terms of five (5) years each, on the terms and conditions set forth herein. Such
option shall be exercised by providing LESSOR with notice of its intent to do so
not less than three (3) months prior to the expiration of the then-current term.
FOURTH.- RENT
4.1 From the Effective Date, and payable in advance during the first 5 (five)
days of each month, the LESSEE shall punctually pay to the LESSOR, as monthly
rent, at its address or any other address as instructed by the LESSOR, and
without deductions (except for those provided by the applicable tax laws), the
amount of $7,077.00 DLLs. (seven thousand and seventy-seven dollars 00/100 in
Curency of the United States of America).
4.2 After the fourth full year, LESSEE's monthly Base Rent shall be increased
each year thereafter by a fixed amount of 3% per annum for each remaining year
of the term of this lease.
4.3 All rental payments made after the term set forth above shall accrue
delinquent interest at a rate of five percent (5%) per month.
FIFTH.- TAXES AND COSTS
The LESSOR shall be responsible of payment of the income and assets taxes to
which it is obligated. On its part, the LESSEE shall be responsible for the
payment of the real estate and any other taxes or costs which may affect the
LAND including VAT, which may derive from this agreement or which may derive
from the use of the LAND by the LESSEE. The LESSEE shall submit to the LESSOR
evidence satisfactory to the LESSOR that such taxes have been paid.
SIXTH.- INDEMNIFICATION
If either party (the "Indemnified Party") is held responsible for any obligation
undertaken by the other (the "Indemnifying Party"), the Indemnifying Party shall
indemnify and hold the Indemnified
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Party harmless from any and all claims for damages or losses of any kind, and to
restore or reimburse any and all such costs and expenses to the Indemnified
Party.
SEVENTH.- UTILITY SERVICES
The LESSEE agrees to request directly from the corresponding utility companies
that the public services be rendered by such companies, to pay for the
corresponding connection fees and to promptly pay for any and all utilities and
related services furnished to the LESSEE in the LAND, including but not limited
to water, gas, electricity, and telephone charges.
EIGHTH.- ASSIGNMENT AND SUBLETTING
8.1 The LESSEE may not assign its rights and obligations under this agreement
unless the assignee is an affiliate of the LESSOR, nor may it sublet the LAND
unless it obtains the prior written authorization of the LESSOR. Such
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authorization shall not be unreasonably withheld.
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8.2 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. Likewise, LESSOR shall be expressly entitled to
guarantee any of its present or future obligations with its rights under this
agreement. LESSEE shall have the right to approve in writing in advance any such
assignment by LESSOR and LESSOR agrees to provide LESSEE all names of the
prospective individual owners of the entity to which LESSOR desires to assign
the lease and the financial capability of such new entity and/or owners.
NINTH.- ACCESS TO THE LAND
9.1 The LESSOR or its authorized representatives shall have the right to enter
the LAND in emergencies at all times, and at mutually agreeable times to make
repairs, additions, or alterations on the LAND which it may be authorized or
obligated to do under this agreement.
9.2 LESSOR, within a ninety (90) days period prior to the termination of this
agreement, shall have the right to show the LAND to any prospective clients,
provided such prospective client or tenant does not compete with LESSEE in the
same business, in whole or in part. Likewise, and during the above mentioned
term, the LESSOR shall have the right to post the signs which it may deem
appropriate in the LAND in order to promote the same.
9.3 Except in case of emergency, the LESSOR shall give notice to the LESSEE
before entering the LAND, and the LESSEE shall have the right to escort any
representatives of the LESSOR and prospective clients. LESSEE shall have the
right to protect LESSEE's proprietary data and information as well as
proprietary engineering or manufacturing processes and operations from
disclosure to any third party, even though such third party may be a prospective
client or tenant of LESSOR.
TENTH.- CAUSES FOR TERMINATION OF LEASE
10.1 The parties agree that this lease agreement, the LAND OPTIONS, the LAND
LEASE and the LAND OPTION (the "AGREEMENTS"), are a unity and not susceptible of
division or apportionment.
In the event of the breach of any clause, term, covenant, condition or
stipulation of any of the AGREEMENTS by Messrs. Xxxxxxx Xxxxxxx xx Xxxxxxx,
Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx,
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Xxxxx Xxxxxxxxx Cuquita Xxxxxxx Xxxxxxx and Xxxx Xxxx xx Xxxx Xxxxxxx Xxxxxxx ,
automatically the other AGREEMENTS will be exigible and their rescission or
termination requested by the LESSEE.
10.2 The LESSEE will have the right to terminate this lease at any time in case
that for any circumstance of force majeure, fortuitous case or acts of
government (expropriation, seizure, etc.) he cannot continue industrial
operations within the LAND. In such a case the LESSEE will notify the LESSOR of
his intention to terminate the lease 30 days in advance of the effective date of
termination.
In the event LESSEE elects to terminate the lease as allowed in this clause,
then the LESSEE shall be free of any further obligations or lease payments under
this lease agreement or any obligation under the AGREEMENTS upon written
notification to LESSOR of LESSEE's termination, as provided for in this clause.
ELEVENTH.- LESSOR'S RIGHT TO PERFORM THE LESSEE'S COVENANTS
If the LESSEE shall at any time fail to perform any one or more of its covenants
made in this lease, the LESSOR, after five (5) business days written notice to
the LESSEE (or without notice in the event the act or acts to be performed in
fulfillment of the breached covenant require an immediate action) and without
waiving or releasing the LESSEE from any obligation of the LESSEE contained in
this lease, may (but shall be under no obligation to) perform any act on the
LESSEE's part to be performed as provided in this lease, and may enter upon the
LAND for that purpose and take all such actions thereon as may be necessary
therefor.
All sums paid by the LESSOR and all costs and expenses incurred by the LESSOR in
connection with the performance of any such obligation of the LESSEE, shall be
payable by the LESSEE to the LESSOR on demand, in the understanding that the
late reimbursement of costs and expenses shall accrue delinquent interest at a
rate of five percent (5%) per month.
TWELFTH.- GUARANTIES
12.1 LESSOR hereby acknowledges that LESSEE'S deposit of $28,000.00 DLLs.
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(twenty-eight thousand dollars 00/100 in Currency of the United States of
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Amercia), under the terms of the Lease Agreement is sufficient to serve as
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security deposit for the LAND, and that no further deposit by LESSEE is
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necessary.
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12.2 The deposit of $28,000.00 DLLs. (twenty-eight thousand dollars 00/100 in
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Currency of the United States of Amercia), as described above, will be
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reimbursed to the LESSEE, without interest, in accordance with the terms of the
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Lease Agreement.
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12.3 LESSEE shall obtain and deliver to LESSOR, within 5 days following
execution of this agreement, a guaranty from LOWRANCE ELECTRONICS, INC. under
the terms of the "Absolute Guarantee of Lease" which is attached hereto as
Exhibit "B". Accordingly, LOWRANCE ELECTRONICS, INC. shall guaranty any and all
obligations of the LESSEE under this agreement.
12.4 In case of early termination for any foreseeable cause attributable to the
LESSEE, the LESSOR shall be entitled to keep any amounts delivered to the LESSOR
as prepaid rent or deposit, regardless of any other rights which the LESSOR may
be entitled to. Such amount shall be applied to amounts owed by LESSEE
hereunder.
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THIRTEENTH.- NOTICES
13.1 Any notice to be given to the LESSOR under this agreement shall be sent to
_____________________________________________________________ or to such other
addresses which may from time to time be notified by the LESSOR to the LESSEE.
13.2 Any notice to be given to the LESSEE under this agreement shall be
addressed to Electronica Lowrance de Mexico, S.A. de C.V., located at the corner
of Ave. Reforma and Xxxxx Xxxxxx, xx Xxxxxxx Xxxxxxx, Xxxxxxxx, X.X., Xxxxxx,
with a copy to 00000 Xxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000.
13.3 Said notices shall be in writing, and shall be delivered personally to the
legal representative of the party in question, or sent by certified mail,
postage prepaid to the addresses mentioned above, in which case the
corresponding notice shall be deemed delivered fourteen (14) days after the date
of mailing thereof.
FOURTEENTH.- EARLY TERMINATION
The LESSOR may terminate this agreement with proper written notification or
default in any of the following circumstances:
14.1 In case the term expressed in clause third above expires.
14.2 The LESSEE's failure to pay any monthly rent due and payable hereunder
within ten (10) days of receipt of notice of such failure.
14.3 Default in the performance of any of the LESSEE's covenants, agreements or
obligations hereunder which remains uncured ten (10) days after LESSEE's receipt
of notice thereof or, if such default cannot be fully cured within ten (10)
days, if LESSEE has not commenced such cure within ten (10) days.
14.4 The filing of a petition of bankruptcy against the LESSEE.
14.5 In case any competent court declares that any provision hereunder is null
and void so that the purposes of the parties in entering this lease are rendered
futile.
14.6 Any other cause provided in the corresponding civil code.
In case LESSOR initiates any action to terminate this agreement, due to the
LESSEE'S vacancy of the LAND prior to the end of the LEASE TERM or its failure
to vacate at the end of the LEASE TERM, LESSEE shall reimburse LESSOR any costs
of such action. The LESSEE acknowledges that this clause shall not be construed
as an authorization to occupy the LAND beyond the term set forth herein.
FIFTEENTH.- MISCELLANEOUS
15.1 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.
15.2 This agreement may only be modified by written agreement signed by the
authorized representatives of the parties.
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15.3 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.
15.4 The parties agree that this lease agreement shall be governed by the laws
of the State of Baja California, Mexico. For everything pertaining to the
interpretation and compliance of this lease 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.
IN WITNESS WHEREOF, the parties have executed this agreement in the city of
Ensenada, Baja California, Mexico, on October 1st., 1997.
"LESSOR"
XXXX XXXX XX XXXX FLOURIEGEFFROY,
XXXXXXX XXXXXXX DE FLOURIE,
XXXXXXXXX XXXXXXX XXXXXX XXXXXXX XXXXXXX
XXXXX XXXXXXXXX CUQUITA XXXXXXX XXXXXXX
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Xxxx Xxxx xx Xxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx de Flourie
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Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx Cuquita Xxxxxxx Xxxxxxx
LESSEE
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Electronica Lowrance de Mexico, S.A. de C.V.
Xx. Xxxxxxx X. Xxxxxxxx
"WITNESS" "WITNESS"
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LEASE GUARANTY AGREEMENT
FOR AND IN CONSIDERATION of the agreement by Xxxx Xxxx xx Xxxx Xxxxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx xx Xxxxxxx, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx and Xxxxx
Xxxxxxxxx Cuquita Xxxxxxx Xxxxxxx, (hereinafter referred to as Lessor) and
Electronica Lowrance de Mexico, S.A. de C.V., (herein after referred to as
Lessee) and further, to induce Lessor to enter into the Lease, and for other
good and valuable consideration, Lowrance Electronics, Inc., (hereinafter
referred to as Guarantor), a corporation established in the State of
_________________, U.S.A., unconditionally and irrevocably guarantees to Lessor
the full and prompt payment of all rentals, deposits, and other sums now or
hereafter becoming due and payable pursuant to the terms and provisions of the
Lease, and any and all renewals, extensions, amendments, or modifications of the
Lease ( all of the foregoing are collectively the "Obligations").
In the event any sums owing on any of the Obligation shall become due and are
unpaid by Lessee, Guarantor shall immediately pay all of such sums due Lessor
upon written notice from Lessor. In the event any of the terms, covenants or
provisions of the Lease are not performed promptly as therein provided,
Guarantor shall immediately so perform such terms, covenants, or provisions upon
written notice from Lessor.
It shall be necessary or required in order to enforce Guarantor's obligations
under this Lease Guaranty Agreement that Lessor shall have made demand for
payment or performance upon Lessee or any other person liable on or for the
Obligations for payment to Lessee or to any other person liable thereon or have
given notice to Lessee or any other person liable thereon of non-payment or
non-performance of said Obligations, or any other notice whatsoever. It shall
not be necessary or required, and Guarantor shall not be entitled to require,
that Lessor file suit. Guarantor waives any right to the benefit of or to
require or control application of any security or the proceeds of any security
now existing or hereafter obtained by Lessor as security for the Obligations.
Guarantor shall not have any recourse or action against Lessor by reason of any
action Lessor may take or omit to take in connection with security or any other
guaranty at any time existing thereof.
This is a guaranty of payment and not merely of collection. No renewal,
extension, or rearrangement of any other indulgence with respect to the
Obligations, or any part thereof, no release of or substitution for any security
or other guaranty now or hereafter held by Lessor for Obligations, or of any
part thereof, no failure to perfect any lien or security interest, no impairment
of collateral, or any security therefor or guaranty thereof or under this Lease
Guaranty Agreement shall in any manner impair the rights of Lessor or the
obligations and liability of Guarantor hereunder.
Guarantor further waives notice of the acceptance of this guaranty and waives
grace, notice of intent to accelerate maturity, notice that Lessor will not
accept late payments, presentment for payment, protest notice of pretest and of
dishonor, and diligence en
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taking any action with respect to this Lease Guaranty Agreement or said
Obligations or any property , rights , or interests which secure this Lease
Guaranty Agreement or said Obligations. Guarantor consents to and waives notice
of any and all renewals, extensions, and rearrangements of said Obligations and
to the release of all or any part of any property, rights, or interests which
secure this Lease Guaranty Agreement or said Obligations or any person liable
for any or the Obligations.
The obligations, covenants, agreements and duties of Guarantor under this Lease
Guaranty Agreement shall in no way be affected or impaired by (i) the
involuntary or involuntary bankruptcy, assignment for the benefit of credits,
reorganization or similar proceeding affecting Lessee or any of Lessee's assets,
or (ii) the release of Lessee from the performance or observance of any of the
agreements, covenants, terms or conditions contained in the documents evidencing
the Obligations by Lessee's bankruptcy, receivership, or similar protective
filing. This Lease Guaranty Agreement shall continue to be effective or be
reinstalled , as the case may be, if at any time any payment or performance of
any of the Obligations is rescinded or must be otherwise returned by Lessor in
connection with the insolvency, bankruptcy or reorganization of Lessee or
otherwise, all as though such payment had not been made.
Guarantor hereby irrevocably waives any and all claims or other rights which it
may now have or hereafter acquire against Lessee or any other guarantor of the
Obligations that arise from the existence, payment, performance or enforcement
of Guarantor's liabilities or Obligations under this Lease Guaranty Agreement ,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification , and any right to participate in
any claim or remedy of Lessor against Lessee or any other guarantor of the
Obligations or any collateral which Lessor now has or hereafter acquires,
whether or not such right , claim or remedy arises in equity or under contract ,
statute or common law including without limitation, the right to take in receive
from Lessee, directly or indirectly, in cash or other property or by setoff or
in any other manner, payment or security on account of such right , claim or
remedy.
This Lease Guaranty Agreement is intended for and shall inure to the benefit of
Lessor and each and every other person who shall from time to time be or become
the owner , assignee or holder of the Lease or any of the Obligations hereby
guaranteed, and each and every reference herein to "Lessor" shall also include
and refer to each and every successor or assignee of Lessor, where the successor
or assignee is allowed under the lease, at any time holding or owing any part of
or interest in any part of the Lease or the Obligations hereby Guaranteed. This
Lease Guaranty Agreement shall be transferable, in whole or in part, by Lessor
and its assigns, with the same force and effect and to the same extent that the
Lease or the Obligations are transferable.
Any proceeding under this Lease Guaranty Agreement may be brought by Lessor as
to some, but less than all, Obligations, at Lessor's sole discretion, and any
such proceeding brought by Lessor with respect to some, but less than all,
Obligations shall not in any manner whatsoever affect, waive, diminish, or
impair the rights of Lessor to
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thereafter institute proceeding as to any or all Obligations not therefore the
subject of any proceeding under this Lease Guaranty Agreement, either
simultaneously or serially , until all Obligations have been fully and finally
paid and discharged. The exercise of any right or remedy granted to or conferred
upon Lessor in this Lease Guaranty Agreement or in any instrument, document, or
other writing now or hereafter evidencing, securing, or otherwise pertaining to
said Obligations or this Lease Guaranty Agreement shall be wholly discretionary
with Lessor, and such right or remedy shall not in any manner affect, impair, or
diminish the obligations and liabilities of Guarantor or any person liable on
said Obligations, or constitute or be deemed a waiver of any such right or
remedy or any other past, present, or future right or remedy of Lessor.
This Lease Guaranty Agreement and the obligations of Guarantor hereunder, and
all of the terms, provisions, covenants, warranties, waivers, and agreements
contained herein or in any writing evidencing, securing, or otherwise pertaining
to the Obligations shall be binding upon Guarantor and its successors, legal
representatives and assigns.
Any notice or demand to Guarantor or in connection herewith may be given and
shall conclusively be deemed and considered to have been given and received upon
five business days deposit thereof in writing in the U.S. Mails, duly stamped
and mailed certified mail, return receipt requested, and address to such
Guarantor at the address of Guarantor shown below, with a copy sent to, 00000
Xxxxx Xxxxxxx, Xxxxxx XX, 00000 or to such other address as provided by
Guarantor to Lessor by written notice, but actual notice, however received,
shall always be effective.
Guarantor shall pay to Lessor its reasonable attorney's fees, if the Lessor is
the prevailing party and if this Lease Guaranty Agreement is enforced through
any judicial proceedings whatsoever.
THIS LEASE GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, AND
INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, USA.
EXECUTED effective as of the ______ day of ____________, ______.
By: _______________________________
Printed Name:
Title: ____________________________
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