EXHIBIT 10.31
RETAIL SUBLEASE
THIS RETAIL SUBLEASE (the "Lease") is made this 1st day of
July, 1998 by and between GIANT INDUSTRIES ARIZONA, INC., an Arizona
corporation ("Lessor"), and PINNACLE INN AT THE CITADEL LLC, an
Arizona corporation ("Tenant").
Lessor is the lessee of 8,176 square feet of space in The
Citadel located at 0000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Arizona,
pursuant to a Lease of even date between Lessor, as tenant, and
Pinnacle Citadel LLC, as landlord (the "Senior Lease"). Lessor
desires to sublease to Tenant, and Tenant desires to rent and
sublease from Lessor, the 8,176 square feet of space, subject to the
terms and conditions of this Lease.
Notwithstanding the foregoing, Lessor may, with 120 days
written notification to Tenant, terminate Lease and Tenant will
vacate Premises at which time Lessor would occupy Premises as office
suites.
Lessor hereby leases to Tenant and Tenant leases from Lessor
for the term and upon the conditions and agreements set forth in this
Lease a portion of the real property described on Exhibit A attached
hereto known as the Inn at the Citadel, consisting of approximately
8,176 square feet of space consisting of eleven suites on the second
floor and an office/lobby suite on the first floor together with any
or all additional space used in connection with Tenant's business
(the "Premises") in The Citadel (the "Center") along with two (2)
covered parking spaces numbered 9 and 10 each located in the area
cross-hatched on Exhibit B. The address of the premises is 0000 Xxxx
Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000.
1. Term and Possession
(a) The term (the Term ) of this Lease shall commence on
the earlier of (i) the date possession is tendered by written notice
to Tenant or (ii) the date on which the Tenant shall first use or
occupy any part of the premises or (iii) the date a temporary
certificate of occupancy for the Premises is issued by the City of
Scottsdale (the "Commencement Date") and shall expire on June 30,
2003. The Tenant's obligation to pay Rent (defined in Articles 2(d)
below) shall begin on the Commencement Date (the Rent Start Date").
The anticipated Commencement Date is July 1, 1998. Upon request of
either party after the term has commenced, Lessor and Tenant shall
jointly execute a memorandum confirming the Commencement Date.
(b) Upon the expiration or earlier termination of this
Lease or upon the termination of Tenant's right of possession,
whether by lapse of time or otherwise, Tenant shall at once surrender
possession of the Premises to Lessor and remove all of Tenant's
property as provided in Article 10.
(c) Tenant shall have no right to hold over after the
expiration of this Lease without Lessor's prior written consent.
If, with Lessor's prior written consent, Tenant holds over after the
expiration of this Lease, Tenant shall become a tenant from month to
month only, upon all of the terms of this Lease except that Article
1(a) shall not apply and the amount of the Minimum Annual Rent
(defined at Article 2(a) below) shall be increased to an amount equal
to 125% of the Minimum Annual Rent in effect immediately prior to the
expiration.
(d) Provided Tenant has not been and/or Lessor has not
deemed Tenant in default under this Lease, Tenant shall have the
option, exercisable by written notice given to the Lessor at least
180 days prior to the expiration of the then current Term, to extend
this Lease by one (1) successive period of five (5) years. All the
terms and conditions of this Lease, including, without limitation,
Article 2(b), shall remain in full force and effect during the
extended Term. As used herein, the word Term shall hereafter mean
the Term as it may have been extended pursuant to this Article 1(d).
2. Rent
(a) Minimum Rent. Tenant shall pay to Lessor during the
Term at the office of Lessor, 00000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, or at such other place as Lessor may designate,
without notice, demand, deduction or set-off, Minimum Annual Rent
in the amount of $163,520.00 per annum, subject to adjustment as
provided in Article 2(b), in equal monthly installments in advance
on the first day of each calendar month with applicable transaction
privilege or other similar sales tax. In addition, Tenant shall pay
the amount of $40.00 per month for each of the two (2) reserved
covered parking spaces. In the event the Rent Start Date does not
occur on the first day of a calendar month, Tenant shall pay Rent on
the Rent Start Date for the fractional month on a pro rata 30-day
month basis.
(b) Adjustments. The Minimum Annual Rent shall be
adjusted upwards as of each one (1) year anniversary of the
Commencement Date (the Adjustment Date ) as follows:
(i) Lessor shall ascertain the Consumer Price
Index for All Urban Consumers - U.S. Cities Average - All Items (the
"CPI") published by the United States Department of Labor, Bureau of
Labor Statistics (1982-84 = 100) for the third full calendar month
prior to the Commencement Date for the first year adjustment and the
third full calendar month prior to the previous Adjustment Date for
all following adjustments (the "Base Index") and for the third full
calendar month prior to the Adjustment Date (the "Comparison Index").
(ii) The Minimum Annual Rent commencing as of each
Adjustment Date shall be equal to the Minimum Annual Rent in effect
immediately preceding each Adjustment Date (the "Effective Minimum
Annual Rent") times a fraction, the numerator of which is the
Comparison Index associated with that Adjustment Date and the
denominator of which is the Base Index, as illustrated in the
following formula for the first (1st) Adjustment Date:
Adjusted Minimum = Effective Minimum x Comparison Index
Annual Rent Annual Rent Base Index
(iii) Notwithstanding the foregoing, in no event
shall the Minimum Annual Rent be adjusted downwards. When the Minimum
Annual Rent payable as of each Adjustment Date is determined, Lessor
shall promptly give Tenant written notice of such adjusted Minimum
Annual Rent and the manner in which it was computed. The Minimum
Annual Rent as so adjusted from time to time shall be the "Minimum
Annual Rent" for all purposes under this Lease.
(iv) If at any time the CPI is no longer published
or its manner of calculation is materially changed, Lessor may
substitute a substitute index, reconciled to the month three (3)
months prior to the Commencement Date, as reasonably reflects changes
in the purchasing power of the dollar.
(c) Nature of Payments. All sums required to be paid by
Tenant under this Lease, whether or not so designated, including,
without limitation, Minimum Annual Rent and Tenant s Pro Rata Share
of Operating Costs are Rent and shall be paid without notice,
demand, deduction, or set-off.
(d) Late Charges and Interest. Any amount due from Tenant
to Lessor which is not paid when due shall bear interest at three
percent in excess of the prime rate as established from time to time
by the Bank of America Arizona (or, if such bank ceases to exist,
such other comparable financial institution as reasonably determined
by Lessor) from the due date until paid, but the payment of such
interest shall not excuse or cure any default by Tenant under this
Lease. In addition, if any Rent or other payment is not paid within
five days of its due date, then Tenant shall also pay to Lessor a
late charge equal to ten percent of the amount of such payment.
3. Use
(a) Tenant shall continuously and uninterruptedly
operate, use and occupy the Premises as an inn along with a 1st floor
office/lobby for the inn and for no other purpose whatsoever and
shall be open for business those hours that conform with the hours
of opening which are customary for businesses of like character in
the City of Scottsdale.
(b) Tenant, its agents, employees and/or contractors
shall, at Tenant s sole cost and expense, comply with the following:
(i) Tenant shall not use or permit upon the
Premises anything that would invalidate any policies of insurance now
or hereafter carried on the Premises or that will increase the rate
of insurance on the Premises or the Center;
(ii) Tenant shall pay all additional insurance
premiums which may be caused by the use which Tenant shall make of
the Premises;
(iii) Tenant shall not in any manner deface or
injure the Premises or overload any floor of the Premises;
(iv) Tenant shall not conduct or permit any auction
sale to be held on or about the Premises, whether such auction be
voluntary or involuntary, or any sidewalk sale without the prior
written consent of Lessor;
(v) Tenant shall not do anything or permit
anything to be done upon the Premises in any way tending to create
a nuisance, or tending to disturb any other lessee in the Center or
tending to injure the reputation of the Center, including, without
limitation, the playing of music audible outside the Premises and the
affixing or maintaining upon the glass panes or supports of the show
windows or on or within 24" of any window, doors or exterior walls
of the Premises, any signs, advertising placards, names, insignia,
trademarks, descriptive material or any other like item(s) without
having first received the written approval of Lessor as to the size,
type, color, location, copy, nature and display qualities of any such
item. All signs shall comply with City of Scottsdale sign ordinances
and The Citadel sign criteria.
(vi) Tenant shall not display merchandise,
advertise or solicit business on the sidewalks and other Common Areas
(defined at Article 6(a) below) or place any handbills, bumper
stickers or other advertising devices on any vehicle parked in the
Common Areas of any other parking area of the Center;
(vii) Tenant shall not use the Premises
designated as the office/lobby for lodging or sleeping purposes;
(viii) Tenant shall not commit or suffer to be
committed any waste upon the Premises;
(ix) Tenant shall not violate any recorded
restriction or covenant affecting the Center, nor use the Premises
for any purpose which would be in violation of any exclusive rights
or use granted to other tenants in the Center. Lessor shall not
grant exclusive rights which would prohibit Tenant from exclusively
using the Premises for the purposes stated in Article 4(a) above
except for incidental uses ancillary to the main use of the other
user.
(x) Tenant shall, at its sole cost and expense,
maintain the elevator located in the Center that services the Inn at
the Citadel in first class condition.
(c) Tenant shall provide and maintain sanitary receptacles
within the Premises in which to place any refuse or trash. Tenant
shall cause such refuse or trash to be removed from the Premises to
receptacles designated by Lessor as often as required to maintain a
sanitary condition, but in no event less often than daily. No grease
or rubbish or hazardous waste shall be disposed of through any
plumbing system. Tenant shall sweep as needed and keep free of
refuse all sidewalks immediately adjacent to the Premises if so
directed by Lessor. Tenant shall not allow the Premises to be
infested with insects or vermin.
(d) Tenant shall use its best efforts to complete all
deliveries, loading, unloading and services to the Premises before
10:00 a.m. each day. Tenant shall attempt to prevent any delivery
trucks or other vehicles servicing the Premises from parking or
standing in front of, or at the rear of, the Premises from 10:00 a.m.
to 9:00 p.m. of each day. Lessor reserves the right to further
regulate the activities of Tenant in regard to deliveries to and
servicing of the Premises, and Tenant agrees to abide by such further
non-discriminatory regulations of Lessor.
(e) Tenant shall, at Tenant's sole cost and expense,
comply with all present and future federal, state and local laws,
ordinances, orders, rules and regulations (collectively, "Laws"), and
shall procure all permits, certificates, licenses and other
authorizations required by applicable Law relating to Tenant's
business or Tenant's use or occupancy of the Premises or Tenant's
activities on the Premises. Tenant shall make all reports and
filings required by applicable Laws.
(f) Tenant's Warranty as to Hazardous or Toxic Materials.
Tenant shall not cause or permit any Hazardous Substances to be
brought upon, kept or used in or about the Premises by Tenant, its
agents, employees, contractors or invitees, except such incidental
quantities of commonly used office supplies (such as copier fluid and
typewriter correction fluids) and ordinary cleaning solvents,
provided that all of the foregoing are only in such quantities as are
normal for the permitted use of the Premises, are used in the manner
for which they are designed and are at all times used, kept, and
stored and disposed of in a manner that strictly complies with all
laws regulating any such Hazardous Substances. Any Hazardous
Substances placed in or on the Premises by Tenant, its agents,
employees, contractors or invitee shall remain the property of
Tenant, notwithstanding anything in the Lease to the contrary.
Tenant shall not install any underground storage tank on the
Premises, as such term is defined in 42 U.S.C. Section 66991 and the
regulations promulgated thereto, as amended from time to time and
including all pipes and conduiting relating thereto. If Tenant
breaches the covenants and obligations set forth herein, or if the
presence of Hazardous Substances on, in or about the Premises caused
by Tenant, its agents, employees, contractors or invitees, results
in contamination of the Premises, then Tenant shall indemnify, defend
and hold Lessor, its officers, employees, partners, agents and
representatives, free and harmless from and against any and all
claims, judgments, penalties, fines, costs, liabilities and damages,
(including, without limitation, sums paid in settlement of claims,
attorneys' fees and expenses (through all levels of proceedings),
consultants or experts fees) and all costs incurred in enforcing this
indemnity which arise during or after the Term as a result of the
presence of such Hazardous Substances or any contamination, damage
or injury therefrom. This indemnification by Tenant includes, without
limitation, any and all costs incurred in connection with any
investigation of site conditions or any clean up, remedial, removal
or restoration work required by any federal, state or local
governmental agency or political subdivision because of the presence
of such Hazardous Substances caused by Tenant, its agents, employees,
or contractors in, on or about the Premises. Tenant shall promptly
take all actions, at its sole cost and expense, as are necessary to
return the Premises to the condition existing prior to the
introduction of any such Hazardous Substances, provided that Lessor's
approval of such actions is first obtained. Furthermore, Tenant
shall immediately notify Lessor of any inquiry, test, investigation
or enforcement proceeding by or against Tenant or the Premises
concerning the presence of any Hazardous Substances. Tenant
acknowledges that Lessor, at Lessor's election, shall have the right
to negotiate, defend, approve and appeal any action taken or order
issued by any governmental authority with regard to any Hazardous
Substances condition which Tenant is obligated hereunder to
remediate. The provisions of this Article 4(f) shall survive the
expiration or sooner termination of the Term or of Tenant's right to
possession, whether by lapse of time or otherwise. The term
"Hazardous Substance" includes, without limitation, any material or
substance which is (i) defined or listed as a "hazardous waste",
"extremely hazardous waste", "restrictive hazardous waste" or
"hazardous substance" or considered a waste, condition of pollution
or nuisance under any Environmental Law (as defined below); (ii)
petroleum or a petroleum product or fraction thereof; (iii) asbestos;
and/or (iv) substances known to cause cancer and/or reproductive
toxicity. The term "Environmental Law" shall mean any federal, state
or local law, statute, ordinance, rule, regulation, order, consent,
decree, judgment or common-law doctrine, interpretation thereof, and
provisions and conditions of permits, licenses, plans, approvals and
other operating authorizations whether currently in force or
hereafter enacted relating to health, industrial hygiene or the
environmental conditions on, under or about the Premises or the
Center, including, without limitation, (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq.; (iii) the
Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.,
as such laws are amended and the regulations and administrative codes
applicable thereto. It is the intent of the parties hereto to
construe the terms "Hazardous Substance" and "Environmental Law" in
their broadest sense.
(g) Tenant shall keep its sign, exterior lighting and
display windows lit during those hours that Lessor in its sole
discretion may reasonably require.
(h) Tenant shall not use the Premises for any purpose
other than as set forth in Article 4(a) and shall notify Lessor in
writing of, and obtain Lessor s prior written consent to, any
intended change in the nature of its activities or business conducted
on the Premises and permitted by Article 4(a).
4. Taxes
(a) Tenant shall pay, prior to delinquency, all taxes
assessed against or levied upon Tenant's fixtures, furnishings,
equipment and other personal property (the Personalty ) located in
or upon the Premises. Tenant shall cause the Personalty to be
assessed and billed separately from the real property of which the
Premises form a part. In the event any or all of Tenant's Personalty
shall be assessed and taxed with the real property of which the
Premises or the Center are a part, Tenant shall pay to Lessor
Tenant's share of such taxes within ten days after delivery to Tenant
by Lessor of a statement in writing setting forth the amount of such
taxes applicable to Tenant's Personalty.
(b) Tenant shall, simultaneously with the payment of any
sums required to be paid under this Lease as Rent, additional rent
or otherwise, pay or reimburse Lessor for any sales, use, rental,
transaction privilege or other excise tax imposed or levied on, or
measured by, the amount paid.
(c) Concurrently with each payment of Minimum Annual Rent
hereunder, Tenant shall deliver to Lessor a copy of the Preliminary
Sales Tax Report filed (or required to be filed) by Tenant with the
Arizona Department of Revenue for the immediately preceding calendar
month, with respect to the business conducted in the Premises.
5. Common Areas
(a) All parking areas, access roads, driveways, pedestrian
sidewalks and ramps, landscaped areas, drainage facilities, exterior
lighting, signs, courtyards and other areas and improvements provided
by Lessor for the general use in common of tenants, their officers,
agents, employees, customers and other invites (collectively, the
"Common Areas") shall at all times be subject to the exclusive
control and management of Lessor, and Lessor shall have the right
from time to time to modify, enlarge or eliminate the same and to
establish, modify and enforce reasonable rules and regulations with
respect thereto. Tenant's right to use the Premises includes the
non-exclusive right to use the areas designated from time to time by
Lessor as the Common Areas.
(b) Lessor shall at all times have the right to designate a
particular parking area to be used by employees of Tenant and other
occupants of the Center and any such designation may be changed by
Lessor from time to time. Tenant and its employees shall park their
cars only in those portions of the Common Areas, if any, designated
for that purpose by Lessor. Tenant shall furnish Lessor from time
to time with an accurate current list of its and all its employees'
automobile license plate numbers within 15 days after taking
possession of the Premises and thereafter within 15 days after any
change in the accuracy of the list. If Tenant or its employees fail
to park their cars in designated parking areas, Lessor may charge
Tenant $25.00 per day per car for each such violation and shall have
the right to have any such car towed away.
6. Operating Costs, Real Property Taxes and Utilities
(a) Tenant shall pay as of the Rent Start Date to Lessor
Tenant's pro rata share of all of the Center's operating costs
consisting of the total cost and expense incurred in managing,
operating, maintaining replacing and repairing the Center and its
Common Areas including, without limitation, real property taxes and
general and special assessments, wages, salaries and employee
benefits of persons performing services in connection with the
Center, utilities, parking lot sweeping, sealing, patching, re-
striping and resurfacing; repairs, maintenance, and renewal of
equipment and improvements, including roofs, public liability and
property damage insurance, fire and extended coverage insurance,
plate glass insurance and rent interruption insurance, supplies,
materials, tools, parts, and equipment, equipment rental charges;
bookkeeping, accounting, legal and other professional charges and
expenses, fees for permits and licenses, administrative expenses,
taxes, service and maintenance contracts, signage, advertising,
marketing and landscaping, cleaning, window washing, lighting,
painting, fire protection and fire hydrant charges, steam, water and
sewer charges, gas electricity and telephone utility charges,
supplying music to the Common Areas, depreciation of the cost of
equipment used in operating and maintaining the Common Areas, or rent
paid for leasing such equipment, Lessor s office rent or the fair
market rental value of office space in the Center used by Lessor to
manage, operate and maintain the Common Areas, security, etc.,
(collectively, the Operating Costs ). Tenant's Pro Rata Share of
the Operating Costs shall be the proportion that the area of the
Premises bears to the total rentable area of all rentable space in
the Center owned by the Lessor.
(b) On the first day of each month (or such other regular
cycle as Lessor may determine) Tenant shall pay a monthly advance
charge on account of Tenant's Pro Rata Share of the Operating Costs.
The amount of the monthly charge shall be established by Lessor and
may be adjusted from time to time by Lessor to reflect the actual
cost. Within 120 days after the end of each fiscal year as
established for the Center by Lessor, Lessor shall provide to Tenant
a reasonably detailed summary of the actual Operating Costs showing
Tenant's actual share and the amount by which Tenant has overpaid or
underpaid. Any overpayment shall be credited to Tenant's account. Any
deficiency shall be payable within ten days after receipt of the
statement. In the alternative, Lessor may, at its option during all
or part of the Term, xxxx Tenant for its pro rata share of Operating
Costs in arrears based on actual costs as they are incurred, in which
case Tenant shall pay the invoice within ten days after receipt.
However, Lessor s failure to provide such reasonably detailed summary
of the actual Operating Costs showing Tenant's actual share and the
amount by which Tenant has overpaid or underpaid by the date provided
above shall in no way excuse Tenant from its obligation to pay its
pro rata share of Operating Costs or constitute a waiver of Lessor
s right to xxxx and collect such pro rata share of Operating Costs
from Tenant in accordance with this Article 7(b).
(c) The operating costs for the fiscal year in which this
Lease commences or terminates shall be apportioned so that Tenant
shall not be responsible for costs that relate to periods prior to
or subsequent to the term of this Lease except any period of holding
over.
(d) Tenant shall be solely responsible for payment for and
pay before delinquency all utilities provided to the Premises as of
the Commencement Date, which shall be separately metered at Tenant's
expense. Tenant s failure to timely pay its utility bills shall be
deemed a material breach of this Lease and an event of default.
Notwithstanding any other provision of this Lease, upon delivery of
a written notice by Lessor to Tenant of such even of default for
failure to pay such utility charges and Tenant s failure to cure said
default within 3 days of the delivery of such notice, Lessor may
terminate this Lease.
7. Construction, Delivery, and Condition
(a) If delivery of possession of the Premises to Tenant
is delayed beyond the anticipated Commencement Date because of a
delay in the completion of construction of the Premises by Lessor or
because of a failure of an existing tenant to surrender possession
of the Premises to Lessor, then this Lease shall remain in full force
and effect, Lessor shall not be liable to Tenant for any damage
occasioned by delay, and the Commencement Date shall be changed to
the date actual delivery of possession to Tenant is tendered.
Notwithstanding the foregoing, if tender of possession is delayed
more than 120 days after the anticipated Commencement Date as set
forth in Article 1(a), Tenant, by written notice to Lessor, may
terminate this Lease prior to taking possession, and upon such
termination any Security Deposit shall be refunded and both Lessor
and Tenant shall be released of all further obligation hereunder.
(b) Tenant accepts the Premises AS IS, acknowledges that
Lessor has made no representations or warranties with respect thereto
and is relying solely upon Tenant s own independent factual, physical
and legal investigation, tests and studies. No Improvements shall be
constructed until approved plans and specifications have been
attached to this Lease or otherwise accepted by both Lessor and
Tenant. Lessor will have final approval of all Improvements.
(c) All Work shall be performed by licensed, bondable
Contractors (defined below) approved in writing by Lessor, whose
approval shall not be unreasonably withheld. The term Contractor as
used herein includes subcontractors or other persons hired or
retained by Tenant to construct improvements in the Premises. No Work
shall be commenced until Lessor shall first have received from Tenant
or its contractor a labor and materials payment bond issued by a
responsible surety in form reasonably satisfactory to Lessor insuring
that no mechanic's lien may be asserted against the Premises or the
Center in connection with the Work. Lessor may post signs of non-
responsibility around the Premises.
(d) Tenant shall have no right to enter the Premises
and/or to perform the Work prior to the Commencement Date, without
Lessor's written consent. If Lessor does so consent, Tenant shall
comply with directions of the Lessor and shall not interfere with any
of Lessor's construction activities. Any work performed by Tenant,
or any fixtures, furnishings, equipment and other personal property
moved onto the Premises, shall be at Tenant's own risk. Neither
Lessor nor Lessor's agents or contractors shall be responsible to
Tenant for damage or destruction of Tenant's work or property
excepting damage or destruction occasioned by Lessor's own gross
negligence. Tenant agrees to indemnify Lessor and hold Lessor
harmless from and against claims made with respect to injuries to
persons or damage or destruction of property of other persons moved
onto the Premises prior to the Commencement Date.
(e) Lessor has no obligation to design or construct
improvements or to make alterations in the Premises.
(f) Upon the expiration or earlier termination of this Lease
or upon the termination of Tenant's right of possession, whether by
lapse of time or otherwise, Tenant shall, upon demand by the Lessor,
at Lessor's option, at the Tenant's sole expense, forthwith remove
any alterations, additions or improvements made by Tenant, designated
by Lessor to be removed, and Tenant shall, forthwith at its sole cost
and expense, repair any damage to the Premises caused by such removal
and restore the Premises to a condition reasonably comparable to
their condition at the commencement of the Lease. If not so demanded
by the Lessor, then any alterations, additions or improvements to the
Premises, including signs, but not including movable furniture and
trade fixtures, shall at the expiration or earlier termination of
this Lease or upon the termination of Tenant's right of possession,
whether by lapse of time or otherwise, become a part of the realty
and belong to Lessor.
8. Repair and Maintenance
(a) Tenant shall, at Tenant s sole cost and expense, as
of the Commencement Date maintain the Premises and the improvements
thereon (including without limitation all heating, air conditioning,
ventilation, electrical and plumbing systems serving the Premises,
all signs, locks, doors and door frames), in good condition and
repair. All exterior and interior glass in the Premises shall be
maintained by Tenant and any glass broken shall be promptly replaced
by Tenant at its expense with glass of the same kind, size and
quality. If Tenant does not do so, Lessor may, but need not, make
any such repairs and replacements, and Tenant shall pay Lessor the
cost upon demand. Tenant hereby waives all right, if any, to make
repairs at the expense of Lessor.
(b) Subject to the provisions of Article 7, Lessor shall
repair and maintain the Common Areas, the roof and exterior of the
Premises and all utility lines below grade or in the Common Areas.
Lessor shall not be responsible to make any repairs or perform any
maintenance unless written notice of the need for such repairs or
maintenance is given by Tenant and Lessor determines, in good faith,
that such need does exist. Except in the case of a fire or casualty
as provided in Article 13 or in the event of a business interruption
caused solely by Lessor s gross negligence which exceeds 14 days,
there shall be no abatement of Rent and no liability of Lessor by
reason of any entry to the Premises, interruption of services or
facilities, temporary closure of Common Areas, or interference with
Tenant's business arising from the making of any repairs or
maintenance.
9. Alterations and Personal Property
Tenant shall not make or suffer to be made any alterations,
additions or improvements to the Premises, including signs, without
the prior written consent of Lessor of which consent shall not be
unreasonably withheld, but which shall not be required to be given
until Lessor has actually received a copy of Tenant s building permit
and plans (interior and exterior). Lessor may condition its consent
upon provision of a payment bond, in amount and form reasonably
satisfactory to Lessor, covering the work to be done by Tenant's
contractor. Tenant shall not install any antenna, satellite dish or
other fixture or equipment on the roof or in the Common Areas. In the
event Lessor consents to the making of any alterations, additions or
improvements to the Premises by Tenant, they shall be made by Tenant
at Tenant's sole cost and expense and any contractor or person
selected by Tenant to perform the work must first be approved in
writing by Lessor. Tenant shall not permit any mechanic's or
materialmen's lien to stand against the Premises for any labor or
materials provided to the Premises by any contractor or other person
hired or retained by Tenant. Tenant shall cause any such lien to be
discharged (by bonding or otherwise) within ten days after demand by
Lessor, and if it is not discharged within ten days, Lessor may, in
addition to all other remedies for an event of default, pay or
otherwise discharge the lien and immediately recover all amounts so
expended from Tenant as Rent. Upon the expiration or earlier
termination of this Lease or upon the termination of Tenant's right
of possession, whether by lapse of time or otherwise, Tenant shall,
upon demand by Lessor, at Lessor's option, at Tenant's sole cost and
expense, forthwith remove any alterations, additions or improvements
made by Tenant, designated by Lessor to be removed, and Tenant shall,
forthwith at its sole cost and expense, repair any damage to the
Premises caused by such removal and restore the Premises to a
condition reasonably comparable to their condition at the
commencement of the Lease. If not so demanded by Lessor, then any
alterations, additions or improvements to the Premises, including
signs, but not including movable furniture and trade fixtures, shall,
upon the expiration or earlier termination of this Lease or upon the
termination of Tenant's right of possession, whether by lapse of time
or otherwise, become a part of the realty and belong to Lessor.
10. Certain Rights Reserved by Lessor
Lessor shall have the right to enter the Premises either
personally or by designated representative at all reasonable times
during normal business hours or other hours with prior notification
for the purpose of examining or inspecting the same, showing the same
to prospective purchasers or lessees, or performing any repairs,
construction or alteration in relation to the Center or which is
Lessor's responsibility under this Lease. Lessor shall be permitted
to do any of the above without any rebate of Rent and without any
liability to Tenant for any loss of occupation or quiet enjoyment of
the Premises thereby occasioned. Tenant shall provide Lessor with a
key to the Premises for purposes of emergency entry by Lessor or its
agents. Use of this key is to be restricted to emergency situations
or as permitted by Tenant hereunder.
None of the rights specified above shall be construed or
otherwise considered as a waiver of any rights Lessor may have under
this Lease, at law or in equity or otherwise.
11. Damage to Property; Injury to Persons; Insurance; Indemnity
(a) Tenant shall defend, indemnify and hold Lessor
harmless, regardless of fault or negligence which is imputed to
Lessor from any and all claims costs, liability, damage or expense,
including reasonable attorneys' fees, for any death, damage or injury
to persons or property occurring on the Premises and resulting in
whole or in part from (i) any misrepresentation, breach of warranty
or nonfulfillment of any agreement on the part of Tenant contained
in this Lease, (ii) any act, omission or condition for which Tenant
is solely responsible under the Lease, (iii) any work of
construction, improvement or demolition controlled by or subject to
the control of Tenant, (iv) the negligence of Tenant, its agents,
employees or contractors, (v) Tenant's use or occupancy of the
Premises, (vi) the conduct of its business, (vii) from any activity,
work, or thing done, permitted or suffered by Tenant in or about the
Premises, or (viii) from the condition of the Premises. Tenant shall
further defend, indemnify and hold Lessor harmless from any and all
claims arising in whole or in part from any breach or default in the
performance of this Lease by Tenant, and/or arising in whole or in
part from any act of Tenant, or of its agents or employees, and from
all costs, attorneys' fees, expenses and liabilities incurred
directly or indirectly as a result of any such act and/or claim.
Tenant, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons, in,
upon, or about the Premises from any cause, and Tenant hereby waives
all claims in respect thereto against Lessor. Lessor shall in no
event be liable for loss of or damage to any property by vandalism,
theft or otherwise, or for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of any
building or from the pipes, appliances or plumbing works therein, or
from the roof, street or subsurface, or from any other place
resulting from dampness, or from the elements or any other cause
whatsoever. Lessor shall not be liable for interference with the
natural light. Tenant shall give immediate notice to Lessor of any
fire, accident or defect discovered with the Premises or the building
of which the Premises are a part. Tenant acknowledges that it can
protect itself against some or all of the foregoing risks by
procuring appropriate insurance. Tenant's indemnification obligations
shall survive the expiration or earlier termination of this Lease or
upon the termination of Tenant's right of possession, whether by
lapse of time or otherwise.
(b) Tenant shall, at Tenant s sole cost and expense, as
of the Commencement Date maintain fire and extended coverage
insurance throughout the term of this Lease in an amount equal to one
hundred percent of the replacement value of Tenant's fixtures,
furnishings, equipment and other personal property located on the
Premises, together with such other insurance as may be required by
Lessor's lender or by any government agency. All proceeds of Tenant's
policy of fire and extended coverage insurance shall be payable to
Tenant, and all proceeds of policies of insurance procured by Lessor
shall be payable to Lessor. Tenant hereby waives any right of
recovery from Lessor and Lessor hereby waives any right of recovery
from Tenant for any loss or damage (including consequential loss)
resulting from any of the perils insured against in the insurance
policies required to be maintained hereunder. During the Term,
Tenant shall, at Tenant's sole cost and expense, maintain general
public liability insurance against claims for personal injury, death
or property damage occurring in, upon or about the Premises. The
limitation of liability of such insurance shall be not less than Two
Million Dollars in respect to injury or death of one person and to
the limit of not less than Two Million Dollars in respect to any one
accident and to the limit of not less than Five Hundred Thousand
Dollars in respect to property damage. All of Tenant's policies of
liability insurance shall be obtained by Tenant in an "occurrence"
form and shall name Lessor as an additional insured or loss payee,
as appropriate. All policies of insurance or copies thereof required
to be carried by Tenant under this Article 12 shall be delivered to
Lessor prior to the Commencement Date and thereafter at least thirty
days prior to the expiration of the then current policies. Each
policy shall contain an endorsement prohibiting cancellation or non-
renewal without at least 30 days prior notice to Lessor.
12. Fire and Casualty
If the Premises are wholly or partially destroyed or damaged
by fire or other casualty, Lessor shall restore the Premises with
reasonable diligence; provided, however, that Lessor shall have no
obligation to restore improvements not originally provided by Lessor
or to replace any of Tenant's fixtures, furnishings, equipment or
personal property; and provided further that Lessor need not commence
repairs until insurance proceeds are available and are released in
a sufficient amount for such purpose by any lender holding a lien on
all or part of the Center. Proceeds of insurance payable with respect
to a fire or other casualty shall be received and held by Lessor.
Notwithstanding the foregoing, in the event the Premises are
destroyed or damaged by any fire or casualty to the extent of not
less than twenty-five percent of the replacement cost thereof, or if
the fire or casualty occurs within the last three years of the Term,
then Lessor shall have the option to terminate this Lease by giving
notice to Tenant within sixty days after the occurrence of such
damage or destruction, in which case Lessor shall retain all
insurance proceeds with respect to the Premises as its own property
and shall not be required to spend any more on the restoration than
the amount of proceeds actually received by Lessor. If Lessor does
not terminate this Lease as provided above, this Lease shall continue
in full force and effect, but Minimum Annual Rent shall equitably
xxxxx until the restoration is substantially complete. However, in
the event it is determined that Tenant's ability to continuously
operate and conduct business on the Premises is not hindered, then
Minimum Annual Rent shall xxxxx in proportion to the Premises under
restoration. The provisions of this Lease shall govern when this
Lease shall be terminable as a result of a fire or casualty, and no
other rule or statute on the subject shall apply.
13. Condemnation
In the event the entire Premises shall be appropriated or
taken under the power of eminent domain, this Lease shall terminate
and expire as of the date of such taking. In the event more than
twenty-five percent of the Premises is taken under the power of
eminent domain, or if by reason of any appropriation or taking,
regardless of the amount so taken, the remainder of the Premises is
not one undivided parcel of property, either Lessor or Tenant shall
have the right to terminate this Lease as of the date Tenant is
required to vacate a portion of the Premises upon giving notice in
writing of such election within thirty days after receipt by Tenant
from Lessor of written notice that the Premises have been so
appropriated or taken. If neither Lessor nor Tenant elects to so
terminate this Lease, or in the event less than twenty-five percent
of the Premises shall be appropriated under the power of eminent
domain by any public or quasi-public authority, and the remainder
thereof is an undivided parcel of property, then Lessor shall restore
the Premises to the extent practicable to their condition prior to
the taking, provided that no such restoration need commence until the
condemnation proceeds are available and released in a sufficient
amount for such purpose by any lender holding a lien on all or part
of the Center and further provided that Lessor shall not be required
to spend more than the condemnation proceeds actually received by
Lessor, and thereafter the Minimum Annual Rent shall be reduced on
an equitable basis, taking into account the relative value of the
portion taken as compared to the portion remaining. All awards or
compensation for any taking of any part of the Premises, whether
payable to Lessor or Tenant, shall be the sole property of Lessor.
Notwithstanding anything to the contrary contained herein, Tenant
shall be entitled to receive any portion of an award of compensation
relating to damage to or loss of trade fixtures or other personal
property belonging to Tenant, and Lessor shall be under no obligation
to restore or replace Tenant's furnishings, fixtures, equipment and
personal property. For the purposes of this Article 14, a voluntary
sale or conveyance in lieu of condemnation shall be deemed an
appropriation or a taking under the power of eminent domain.
14. Assignment and Subletting
(a) Tenant shall not, either voluntarily or by operation
of law, assign, hypothecate or transfer this Lease, or sublet the
Premises or any part thereof, or permit the Premises or any part
thereof to be occupied by anyone other than Tenant or Tenant's
employees (individually, a Transfer ), without the Lessor's prior
written consent ("Transfer Notice"). Lessor shall be under no
obligation to give or withhold consent until after all information
reasonably required by Lessor with respect to the identity,
background, experience and financial worth of the proposed assignee,
transferee, or subtenant (the Transferee ) has been provided. No
hypothecation, assignment, sublease or other transfer to which Lessor
has consented shall be effective for any purpose until such time as
fully executed documents of such transaction have been provided to
Lessor, and, in the case of an assignment, the assignee has attorned
directly to Lessor, and in the case of a sublease, the sublessee has
acknowledged that the sublease is subject to all of the terms and
conditions of this Lease. Any assignment, mortgage, transfer or
subletting of this Lease which is not in compliance with the
provisions of this Article 15 shall be voidable by Lessor and shall,
at the option of Lessor, terminate this Lease. Any differing of use
or extension of use by Tenant or any Transferee will, at the option
of Lessor terminate this Lease. The consent by Lessor to an
assignment or subletting shall not relieve Tenant from obtaining the
express written consent of Lessor to any further assignment or
subletting or release Tenant from any liability or obligation
hereunder, whether or not then accrued. Except as provided in this
Article, this Lease shall be binding upon and inure to the benefit
of the successors and assigns of the parties.
(c) If any rent of other monetary payment due under the
terms of this Lease is made by check wherein the payor is other than
the Tenant herein, acceptance thereof shall in no way constitute
acceptance by Lessor of any assignment or subletting. Any assignment
or subletting must comply with the conditions of this Article 14.
15. Estoppel Certificate
(a) Tenant shall at any time and from time to time upon
not less than ten days' prior written notice from Lessor execute,
acknowledge and deliver to Lessor a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect
(or if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and
effect) and the dates to which the rental and other charges are paid
in advance, if any; (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Lessor
hereunder, or specifying such defaults if they are claimed; and (iii)
certifying such other matters relating to this Lease as Lessor may
reasonably request. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
(b) Tenant's failure to deliver a statement within the
time prescribed by Lessor in its request for same shall be conclusive
upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there
are no uncured defaults in Lessor's performance, and (iii) that not
more than one month's rental has been paid in advance.
16. Lessor's Remedies
(a) The following shall constitute events of default:
(i) Tenant's failure to pay any amount due under
Article 2, Article 5(b) or Article 7 of this Lease within 5 days of
when due, or Tenants failure to pay any other amount due under this
Lease within 5 days after notice from Lessor.
(ii) Tenant's failure to execute, acknowledge and
return an estoppel certificate under Article 16 or a subordination
agreement under Article 19, within ten days after request.
(iii) Tenant's failure to perform any other obligation
under this Lease within fifteen days after notice of nonperformance;
provided, however, that if the breach is of such a nature that it can
be cured but it cannot be cured within fifteen days, Tenant shall be
deemed to have cured if cure is commenced promptly and diligently
pursued to completion with completion accomplished within 30 days of
the original notice of nonperformance; and provided further, that in
the event of a breach involving an imminent threat to health or
safety, Lessor may in its notice of breach reduce the period for cure
to such shorter period as may be reasonable under the circumstances.
(iv) Tenant vacates, abandons, or otherwise ceases to
operate the Premises on a continuing basis except temporary absence,
excused by Lessor in its sole discretion, by reason of fire,
casualty, or other cause wholly beyond Tenant's control.
(v) Any goods, chattels or equipment of Tenant are
taken in execution or in attachment or if a writ of execution is
issued against Tenant or if Tenant or any guarantor becomes insolvent
or files a petition under the Bankruptcy Act or becomes bankrupt or
takes the benefit of any statute that may be in force for bankrupt
or insolvent debtors or becomes involved in voluntary or involuntary
winding-up proceedings or if a receiver shall be appointed for the
business, property, affairs or revenues of Tenant or any guarantor
(provided, however, that in the case of involuntary proceedings,
Tenant shall have 60 days to cause them to be dismissed), or if
Tenant makes a bulk sale of its goods or moves or commences, attempts
or threatens to move its goods, chattels and equipment out of the
Premises other than in the normal course of its business.
(b) Upon the occurrence of an event of default, Lessor,
at any time thereafter without further notice or demand, may, in
addition to all of its rights and remedies at law and/or at equity,
exercise any one or more of the following remedies concurrently or
in succession, all of which shall be cumulative:
(i) Terminate Tenant's right to possession of the
Premises by legal process or otherwise, with or without terminating
this Lease, and retake exclusive possession of the Premises.
(ii) From time to time relet all or portions of the
Premises, using reasonable efforts to mitigate Lessor's damages. In
connection with any reletting, Lessor may relet for a period
extending beyond the term of this Lease and may make alterations or
improvements to the Premises without releasing Tenant of any
liability. Upon a reletting of all or substantially all of the
Premises, Lessor shall be entitled to recover all of its then
prospective damages for the balance of the Lease term measured by the
difference between amounts payable under this Lease and the
anticipated net proceeds of reletting during the remaining Term. In
no event shall Tenant be entitled to receive any amount representing
the excess of avails of reletting over amounts payable hereunder.
(iii) From time to time recover accrued and unpaid
rent and damages arising from Tenant's breach of the Lease,
regardless of whether the Lease has been terminated, together with
applicable late charges and interest.
(iv) Enforce the statutory Lessor's lien on Tenant's
property.
(v) Recover all reasonable attorneys' fees incurred
by Lessor in connection with enforcing this Lease, recovering
possession and collecting amounts owned.
(vi) Perform the obligation on Tenant's behalf and
recover from Tenant, upon demand, the entire amount expended by
Lessor plus 20% for special handling, supervision, and overhead.
(vii) Terminate this Lease by giving written notice
of such intention to terminate. In the event that Lessor elects to
terminate this Lease, then Lessor may recover from Tenant:
(a) All unpaid Rent owed by Tenant as of the
date of termination; plus
(b) All Rent which would have been payable by
Tenant under this Lease but for its termination until
the time of award; plus
(c) All Rent under the Lease for the balance
of the Term after the time of award; plus
(d) All other damages incurred by Lessor as a
result of Tenant's default.
Although defined elsewhere, the parties acknowledge that the
term Rent shall be deemed to be and mean the Annual Minimum Rent
and all other sums required to be paid by Tenant pursuant to the
terms of this Lease.
(viii) Pursue other remedies available at law or in equity.
(c) Upon a termination of Tenant's right to possession,
whether or not this Lease is terminated, subtenancies and other
rights of persons claiming under or through Tenant: (i) shall be
terminated or (ii) Tenant's interest shall be assigned to Lessor.
Lessor may separately elect termination or assignment with respect
to each such subtenancy or other matter.
17. Notices
All notices to be given by one party to the other under this
Lease shall be in writing, mailed or hand-delivered to each at the
address to the individual, set forth at the end of this Lease or at
a changed address if notice of the change is given to the other party
in writing. In the case of notice to Tenant after Tenant takes
possession of the Premises, notice shall be sufficient if mailed or
delivered to the address of the Premises. Mailed notices shall be
sent by United States certified or registered mail, postage prepaid.
Such notices shall be deemed to have been given upon posting in the
United States mail. Actual notice shall be no substitute for written
notice under any provision of this Lease.
18. Subordination
Lessor expressly reserves the right at any time to place
ground leases, liens and encumbrances on and against the Premises and
the Center (collectively, the Title Matters ), superior in lien and
effect to this Lease and the estate created hereby. Tenant
acknowledges that there may currently exist any such Title Matters
which are superior in lien and effect to this Lease and the estate
created hereby. This provision shall be self-operative, but Tenant
shall nevertheless execute upon request subordination agreements
presented by Lessor to confirm the superiority of the Title Matters.
19. Authority to Execute
Any individual executing this Lease on behalf of or as a
representative for a corporation or other person, firm, partnership
or entity represents and warrants that such individual is duly
authorized to execute and deliver this Lease on behalf of said
corporation, person, firm, partnership or other entity and that this
Lease is binding upon said entity in accordance with its terms. If
Tenant is a corporation, Tenant shall deliver to Lessor within
fifteen days after the execution hereof a certified copy of a
resolution of the Board of Directors of said corporation authorizing
or ratifying the execution and delivery of this Lease by the
individuals executing and delivering same on behalf of Tenant.
20. Brokers
Lessor and Tenant each covenant that they have not dealt with
any real estate broker or finder with respect to this Lease and each
party shall hold the other party harmless from all damages, claims,
liabilities or expenses, including reasonable and actual attorneys'
fees (through all levels of proceedings), resulting from any claims
that may be asserted against the other party by any real estate
broker or finder with whom the indemnifying party either has or is
purported to have dealt.
21. Arbitration
All controversies, disputes or claims arising between
Lessor and Tenant in connection with, arising from, or with respect
to this Lease or any agreement related to this Lease between the
parties shall be submitted for binding arbitration in accordance with
rules of the American Arbitration Association or any successor
thereof. Arbitration shall be conducted solely on an individual, not
a class-wise basis, unless all parties so agree. Venue of such
arbitration shall be set in Maricopa County, Arizona. Each party
shall select one arbitrator (who shall not be counsel for the party)
and the two so designated shall select a third arbitrator. If either
party shall fail to designate an arbitrator within ten (10) days
after arbitration is requested, or if the two arbitrators shall fail
to select a third arbitrator within twenty (20) days after
arbitration is requested, then such arbitrator shall be selected by
the American Arbitration Association or any successor thereto upon
application of either party. Judgment upon any award of the majority
of arbitrators shall be binding, final and non-appealable and shall
be entered in a court of competent jurisdiction. The award of the
arbitrators may grant any relief which might be granted by a court
of general jurisdiction including, without limitation, an award of
damages and/or injunctive relief, and the costs of the arbitration,
including the reasonable fees of the arbitrators and reasonable
attorney s fees. All issues relating to the arbitrability or the
enforcement of the agreement to arbitrate contained herein shall be
governed by the Federal Arbitration Act (9 U.S.C. 1 et. seq.) and
the Federal Common Law of Arbitration.
22. Americans with Disabilities Act
Lessor and Tenant hereby acknowledge that the Americans with
Disabilities Act (the ADA ) may affect Tenant s use and occupancy of
the Premises and requires Tenant to modify or alter the design,
layout or other physical elements of the interior of the Premises or
provide auxiliary services in connection with its business
operations. Tenant shall comply in all respects with the requirement
of the ADA as it affects Tenant s use and occupancy of the Premises
throughout the Term, and Tenant acknowledges that, notwithstanding
any modifications to the Common Areas which may be made by Lessor in
order to conform such areas with the requirements of the ADA, Lessor
makes no representation or warranties regarding the compliance of the
Premises of the Center with the ADA, nor shall Lessor have any
obligations or liabilities to Tenant to construct any modifications
or alterations to the interior of the Premises in order to comply
with the ADA.
23. General Provisions
(a) This Lease and the obligations of Tenant hereunder
shall not be affected or impaired because Lessor is unable to fulfill
any of its obligations hereunder or is delayed in doing so if such
inability or delay is caused by reason of any strike, lockout, civil
commotion, war-like operations, invasion, rebellion, hostilities,
military or usurped power, sabotage, governmental regulations or
controls, inability to obtain any material, service or financing, Act
of God or other cause beyond the control of the Lessor.
(b) Any violation of the rules and regulations shall
constitute a material breach of this Lease.
(c) The article captions contained in this Lease are for
convenience only and shall not be considered in the construction or
interpretation of any provision. The masculine, feminine or neuter
gender and the singular or plural number shall be deemed to include
the others whenever the context so requires or indicates.
(d) This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in
this Lease, and no prior agreement or understanding pertaining to any
matter shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in interest.
(e) Submission of this instrument for examination shall
not bind Lessor in any manner, and no lease or obligations of Lessor
shall arise until this instrument is signed and delivered by
authorized officers of Lessor and Tenant.
(f) No rights to light or air over any property, whether
belonging to Lessor or any other persons, are granted to Tenant by
this Lease.
(g) No waiver by Lessor of any provisions of this Lease
or any breach by Tenant hereunder shall be deemed to be a waiver of
any other provision hereof, or of any subsequent breach by Tenant of
the same or any other provision. Lessor's consent to or approval of
any act by Tenant requiring Lessor's consent or approval shall not
be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act of Tenant, whether or not similar
to the act so consented to or approved. No act or thing done by
Lessor or Lessor's agent during the term of this Lease shall be
deemed an acceptance of a surrender of the Premises, and no agreement
to accept a surrender shall be valid unless in writing and signed by
Lessor. No employee of Lessor or of Lessor's agents shall have any
power to accept the keys to the Premises prior to the termination of
this Lease, and the delivery of the keys to any employee shall not
operate as a termination of the Lease or a surrender of the Premises.
(h) Time is of the essence of this Lease.
(i) All exhibits attached hereto are incorporated herein
by this reference.
(j) The parties hereto agree that all the provisions
hereof are to be construed as covenants and agreements as though the
words importing such covenants and agreements were used in each
separate paragraph hereof. This Lease is the result of negotiations
between Lessor and Tenant, who each had the opportunity to obtain
legal advice regarding the same. This Lease shall not be construed
for or against Lessor or Tenant on the basis of which party
physically served as scrivener of this Lease.
(k) Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third person to create the
relationship of principal and agent, partnership, joint venture, or
any other association between Lessor and Tenant other than the
Lessor-Tenant relationship described herein.
(l) In the event either party shall commence or be
required to defend any action or proceeding against any other party
by reason of any breach or claimed breach of any provision of this
Lease, to commence or defend any action or proceeding in any way
connected with this Lease or to seek a judicial declaration of rights
under this Lease, the party prevailing in such action or proceeding
shall be entitled to recover from or to be reimbursed by the other
party for the prevailing party's reasonable attorneys' fees and costs
through all levels of proceedings.
(m) If any provision of this Lease or the application
thereof to any person or circumstance shall be deemed invalid or
unenforceable, the remainder of this Lease and its application to
other persons or circumstances shall not be affected by such partial
invalidity but shall be enforced to the fullest extent permitted by
law as though such invalid or unenforceable provision was never a
part hereof.
(n) This Lease shall be construed in accordance with the
laws of the State of Arizona without regard to its principles of
choice of law, and the parties agree that jurisdiction for all
actions hereunder shall lie therein.
(o) The parties expressly agree that all of the provisions
hereof, including all rights and privileges of Tenant hereunder, are
subject to the provisions of the Senior Lease as the rights and
privileges of the landlord thereunder.
(p) This Lease shall be governed by the laws of the State
of Arizona.
LESSOR: ADDRESS:
Giant Industries Arizona, Inc. 00000 X. Xxxxxxxxxx Xxxx
an Arizona corporation Xxxxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Its: CEO
--------------------------------
TENANT: ADDRESS:
Pinnacle Inn at the Citadel, LLC 00000 X. Xxxxxxxxxx Xxxx
an Arizona limited liability company Xxxxxxxxxx, Xxxxxxx 00000
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx, General Manager
