EXHIBIT 10.112
GROUND LEASE
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THIS LEASE ("Lease") is made and entered into this 12th day of May, 2006,
(the "Effective Date") by and between SUCIA SCOTTSDALE, LLC, a Delaware limited
liability company ("Landlord"), and KIERLAND CROSSING, LLC, a Delaware limited
liability company ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of certain land in the City of Scottsdale,
Maricopa County, Arizona upon which land Landlord intends to develop a mixed use
development to be known as "Kierland Crossing" and
WHEREAS, Landlord has agreed to lease a portion of the aforesaid land to
Tenant herein for the period(s), at the rental and upon the terms hereinafter
provided.
NOW, THEREFORE, Landlord and Tenant covenant and agree as follows:
ARTICLE 1
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BASIC LEASE INFORMATION
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1.1 In addition to the other provisions which are elsewhere defined in this
Lease, the following, whenever used in this Lease, shall have the meanings set
forth in this Paragraph:
(a) "Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a member, partner, shareholder, director or
officer of such Person or of an Affiliate of such Person. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities or other
beneficial interest, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
(b) "CCRs" means a mutually acceptable agreement covering the
covenants, conditions, restrictions and easements which will provide for the
integrated development and operation of the Development, as the same may be
amended, restated, modified or supplemented from time to time.
(c) "Claims" means all liabilities, claims, damages, losses,
penalties, litigation, demands, causes of action (whether in tort or contract,
in law or at equity or otherwise), suits, proceedings, judgments, disbursements,
charges, assessments and expenses (including attorneys' and experts' fees and
expenses incurred in investigating, defending or prosecuting any litigation,
claim or proceeding).
(d) "Common Areas" means, with respect to all or any portion of
Complete Site, all areas, facilities and improvements designated as common areas
in the CCRs.
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(e) "Complete Site" means the real property described in Exhibit A-2.
(f) "Constant Dollars" means the present value of the dollars to which
such phrase refers. An adjustment shall occur on January 1 of the tenth calendar
year following the Date of this Lease, and thereafter at five (5) year
intervals. Constant Dollars shall be determined by multiplying the dollar amount
to be adjusted by a fraction, the numerator of which is the Current Index Number
and the denominator of which is the Base Index Number. The "Base Index Number"
shall be the level of the Index for the month during which the Effective Date of
this Lease occurs; the "Current Index Number" shall be the level of the Index
for the month of September of the year preceding the adjustment year; the
"Index" shall be the Consumer Price Index for All Urban Consumers ("CPI-U") for
the West Region published by the Bureau of Labor Statistics of United States
Department of Labor (base year 1982-84=100), or any successor index thereto as
hereinafter provided. If publication of the Index is discontinued, or if the
basis of calculating the Index is materially changed, then the Approving Parties
shall substitute for the Index comparable statistics as computed by an agency of
the United States Government or, if none, by a substantial and responsible
periodical or publication of recognized authority most closely approximating the
result which would have been achieved by the Index.
(g) "Default Interest" means that interest rate set forth in Section
28.3.
(h) "Development" means the Complete Site and buildings and other
improvements from time to time constituting an integrated retail, office,
residential and hotel mixed use development which Landlord and Tenant intend to
construct or cause to be constructed, to be commonly known as "Kierland
Crossing," shown substantially as the same shall exist after construction of the
improvements contemplated under this Lease on the Site Plan, as the same shall
be changed from time to time.
(i) "Dial" means The Dial Corporation, a Delaware corporation.
(j) "Dial Lease" means the following documents, collectively:
(i) The Dial Corporation Lease Agreement for the Existing DTAC
Building Interim Lease, dated June 30, 2002;
(ii) Memorandum of Lease and Rights of First Refusal, dated June
30, 2000;
(iii) Right of First Refusal Agreement, dated June 30, 2000;
(iv) Declaration of Covenants, Conditions and Restrictions, dated
June 30, 2000;
(v) Estoppel Certificate dated April 17, 2001;
(vi) First Amendment to Lease Agreement (Existing) DTAC Building,
dated December 28, 2000;
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(vii) Second Amendment to Lease Agreement (Existing) DTAC
Building, dated February 12, 2001;
(viii) Third Amendment to Lease Agreement (Existing) DTAC
Building, dated May 15, 2001; and
(ix) Fourth Amendment to the Dial Corporation Lease Agreement for
the Existing DTAC Building, dated April 1, 2003.
(k) "Environmental Laws" means all federal, state and local laws,
ordinances, rules, regulations, guidelines, decisions and orders now in effect
or hereafter enacted that deal with the regulation or protection of the public
health or environment (including the ambient air, groundwater, surface water and
land, including sub-strata land), including, without limitation, all of the
following: the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. ss. 9601 et seq.; the Hazardous Materials Transportation Act, 49
U.S.C. ss. 1801 et seq.; the Resource Conservation and Recovery Act, 42 ss. 6941
et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the Safe
Drinking Water Act, 42 U.S.C. ss. 300h et seq.; the Clean Water Act, 33 U.S.C.
ss. 1251 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the
Occupational Health and Safety Act, 29 U.S.C. ss. 651 et seq.; the Arizona
Hazardous Waste Management Act, A.R.S. ss. 49-921 et seq.; the Arizona
Environmental Quality Act, Laws 0000, Xx. 368; Laws 0000, Xx. 317, as amended;
the Arizona Underground Storage Tank Regulation Act, A.R.S. ss. 49-1001 et seq.;
all regulations or guidelines adopted pursuant to any of the foregoing; and
common law doctrines relating to the subject matter of the foregoing-listed
laws.
(l) "Floor Area" means, with respect to any space within the
Development, the actual number of square feet of floor space of such space,
measured to the center line of all party or adjacent tenant walls, to the
exterior faces of all other walls and to the building line where there is no
wall, without deduction or exclusion for any space occupied or used by columns,
stairs or other interior construction or equipment within such space.
(m) "Joint Development Agreement" means a mutually acceptable
development agreement pursuant to which Landlord and Tenant will develop the
infrastructure and common elements of the Development.
(n) "Hazardous Substance" means any substance, matter, material, waste
or pollutant, the generation, storage, disposal, handling, release (or
threatened release), treatment, discharge or emission of which is regulated
under any Environmental Law.
(o) "Indemnify" means indemnify, defend (with counsel reasonably
acceptable to Landlord) and hold free and harmless for, from and against.
(p) "Landlord Parties" means Landlord, Landlord's Mortgagee, their
respective agents, contractors and employees and all Persons claiming through
any of those Persons.
(q) "Landlord's Retained Land" means that portion of Complete Site
described in Exhibit A-3.
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(r) "Lease Year" means each twelve (12) month period beginning with
January 1, 2007 and each anniversary thereof.
(s) "Losses and Liabilities" means all liabilities, claims, losses,
causes of action, charges, penalties, damages, costs or expenses (including
reasonable attorneys' fees and costs), of whatsoever character, nature and kind,
whether to property or Person, whether by direct or derivative action, and
whether known or unknown, suspected or unsuspected, or latent or patent.
(t) "Mortgage" means a mortgage, deed of trust, security instrument or
other instrument intended to secure indebtedness.
(u) "Mortgagee" means the mortgagee, beneficiary or secured party
under a Mortgage.
(v) "Notice Address" means:
(i) for Landlord: Sucia Scottsdale, LLC
0000 X. Xxxxxxxx Xx., Xxx. 000
Xxxxxxxxxx, XX 00000
with a copy to: Xxxxxx & Xxxxx, X.X.
717 X. Xxxxxxx Ave., Se. 1600
Xxxxxxx, XX 00000
Attn: Xxxxx X. Black
(ii) for Tenant: Kierland Crossing, LLC
000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx,
Executive Vice President
(w) "Partial Lease Year" means any portion of the Preliminary Term or
Primary Term comprising less than a full Lease Year.
(x) "Person" means any individual, corporation, partnership, joint
venture, limited liability company, estate, trust, unincorporated association,
any federal, state, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
(y) "Pre-leasing Condition" means the execution of a sublease by
Tenant as sublandlord and Landlord or an Affiliate of Landlord as subtenant for
no less than seventy-five thousand (75,000) square feet of Floor Area for office
use on a "triple net" basis at a base rent of no less than Twenty-four Dollars
($24.00) per square foot of Floor Area, no more than Eight Dollars ($8.00) per
square foot of Floor Area in Common Area maintenance costs and otherwise upon
terms and conditions satisfactory to Tenant in its sole and absolute discretion.
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(z) "Preliminary Term" means that period of time from the Effective
Date to the Rent Commencement Date.
(aa) "Premises" means the portion of the Complete Site described in
Exhibit A-1, together with all easement, hereditaments, rights, privileges and
appurtenances to the same belonging.
(bb) "Prime Rate" means the highest prime rate published in the Money
Rates column of The Wall Street Journal.
(cc) "Primary Term" means ninety-nine (99) Lease Years following the
Rent Commencement Date.
(dd) "Project" means the Premises and buildings and other improvements
from time to time constituting an integrated retail and office mixed use
development which Tenant intends to construct or cause to be constructed, as the
same may be changed from time to time.
(ee) "Rent Commencement Date" means July 15, 2006.
(ff) Intentionally omitted.
(gg) "Tenant Parties" means Tenant, Tenant's agents, contractors and
employees, and all Persons claiming by, through or under any of these Persons.
(hh) "Term" means the Preliminary Term and the Primary Term,
collectively.
(ii) "Waives" means that the applicable party waives and knowingly and
voluntarily assumes the risk of.
1.2 Reference to Articles and Exhibits appearing in this Article are
intended to designate some of the other places in this Lease where additional
provisions applicable to the particular Lease provision appear. These references
are for convenience only and shall not be deemed all inclusive. Each reference
in this Lease to any of the Lease provisions contained in Section 1.1 of this
Article shall be construed to incorporate all of the terms provided for under
such provisions and such provisions shall be read in conjunction with all other
provisions of this Lease applicable thereto. If there is any conflict between
any of the Lease provisions set forth in Section 1.1 of this Article and any
other provisions of this Lease, the latter shall control.
ARTICLE 2
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DEMISE AND TERM
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2.1 Landlord, in consideration of the rents herein reserved and of the
agreements, terms, covenants and conditions herein contained and expressed on
the part of Tenant to be kept, performed and fulfilled, demises and lets unto
Tenant, and Tenant hereby leases, hires and takes of and from Landlord the
Premises during the Term, TO HAVE AND TO HOLD said Premises for the Term.
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2.2 Landlord acknowledges that Tenant's agreement to the terms of this
Lease is subject to the satisfaction of the Pre-leasing Condition on or before
June 1, 2006. If the Pre-leasing Condition is not satisfied or waived on or
before June 1, 2006, then Tenant may terminate this Lease by written notice to
Landlord, whereupon neither party shall have any further rights or obligations
under this Lease. If Tenant terminates this Lease pursuant to this Section 2.2,
Tenant shall deliver to Landlord all leases, letters of intent, marketing
materials, prospect lists, site plans, leasing plans, models, elevations, plans
and specifications, environmental reports, engineering studies, and other
materials developed by or on behalf of Tenant for the purpose of developing and
leasing the Project.
2.3 Effective as of the Rent Commencement Date, Landlord hereby assigns all
of Landlord's right, title and interest in and to the Dial Lease to Tenant and
Tenant hereby assumes all of Landlord's rights and obligations under the Dial
Lease. On or prior to the Rent Commencement Date, Landlord shall provide to
Tenant evidence reasonably satisfactory to Tenant that Dial has consented to
such assignment and has agreed that all rental payments and other obligations of
Dial to the landlord under the Dial Lease are to thereafter be rendered by Dial
to Tenant. If at any time prior to the Rent Commencement Date this Lease is
terminated, the assignment and assumption of the Dial Lease under this Section
2.3 shall be void ab initio.
ARTICLE 3
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RENT
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3.1 Tenant shall pay to Landlord without notice or demand and without
deduction or offset of any amount for any reason whatsoever, annual rent for the
Premises ("Base Rent"), payable in advance in twelve (12) equal monthly
installments on the first day of each month during the Primary Term (each such
date, a "Rent Payment Date"). Should the Rent Commencement Date not be the first
day of a calendar month, the first payment of Base Rent will be in a prorated
amount that is based upon the applicable Base Rent amount and the actual number
of days in the first partial calendar month of the Primary Term. No Base Rent or
other charges shall be due or payable with respect to the Preliminary Term.
3.2 Base Rent for the first Lease Year and any Partial Lease Year preceding
the first Lease Year shall be an amount equal to the sum of Five Million Two
Hundred Thousand Dollars ($5,200,000), which amount shall be non-refundable if
this Lease has not been terminated on or before June 1, 2006 pursuant to Section
2.2 hereof.
3.3 Commencing on the first day of the second (2nd) Lease Year and
continuing on each anniversary thereof until the tenth (10th) Lease Year, the
Base Rent shall increase to an amount equal to one hundred and one and one half
percent (101.5%) of the Base Rent effective for the preceding Lease Year.
3.4 Commencing on the first day of the eleventh (11th) Lease Year and
continuing on each anniversary thereof until the fifteenth (15th) Lease Year,
the Base Rent shall increase to an amount equal to one hundred and one and three
quarters percent (101.75%) of the Base Rent effective for the preceding Lease
Year.
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3.5 Commencing on the first day of the sixteenth (16th) Lease Year and
continuing on each anniversary thereof until the twentieth (20th) Lease Year,
the Base Rent shall increase to an amount equal to one hundred and one and eight
hundred seventy five thousandths percent (101.875%) of the Base Rent effective
for the preceding Lease Year.
3.6 Commencing on the first day of the twenty-first (21st) Lease Year and
continuing on each anniversary thereof until the fortieth (40th) Lease Year, the
Base Rent shall increase to an amount equal to one hundred and two percent
(102%) of the Base Rent effective for the preceding Lease Year.
3.7 Base Rent for the fortieth (40th) Lease Year (the "Base Year") shall be
the Fair Market Rent (as defined below) and determined in the following manner.
(a) The term "Fair Market Rent" means an amount that represents the
fair market rent for the Premises, as if vacant and unimproved and unencumbered
by this Lease or any subleases of space in the Project and otherwise under the
terms and conditions of this Lease, but considering then current market
conditions.
(b) Landlord and Tenant will negotiate in good faith to determine Fair
Market Rent. If Landlord and Tenant are unable to do so at least one hundred
eighty (180) days before commencement of the Base Year, the Fair Market Rent
will be determined by appraisal. Landlord will obtain from a real estate
appraiser an MAI appraisal of the fair market value for the Premises, as if
vacant, unimproved, and unencumbered by this Lease or any subleases (the
"Premises Value") as well as a fair market value capitalization rate (the "Cap
Rate") for the Premises considering the then current market conditions and the
then current use of the Premises. The Fair Market Rent shall be calculated by
multiplying the Premises Value by the Cap Rate. If Tenant disagrees with the
Landlord's appraiser's calculation of the Fair Market Rent, then Tenant will
obtain its own MAI appraisal of the Premises Value, Cap Rate, and determination
of Fair Market Rent. If the two appraised Fair Market Rent amounts are within
ten percent (10%) of each other, the average of the appraised Fair Market Rent
amounts will be the new Base Rent. If the two appraised Fair Market Rents differ
by more than ten percent (10%) then a third appraisal will be obtained by an
appraiser to be agreed upon by both the Landlord's and Tenant's appraisers and
the average of the two closest appraised Fair Market Rent amounts will become
the Base Rent. In no event shall the Base Rent be reduced below the previous
year's Base Rent. Each appraiser shall be a certified Member of the Appraisal
Institute (or any successor of such institute, or if such institute or successor
shall no longer be in existence, a recognized national association or institute
of appraisers) and have at least fifteen (15) years continuous experience in the
business of appraising commercial and retail properties in the Scottsdale,
Arizona area.
3.8 Commencing on the first day of the forty-first (41st) Lease Year and
continuing on each anniversary thereof until the end of the Primary Term, the
Base Rent shall increase to an amount equal to one hundred and two percent
(102%) of the Base Rent effective for the preceding Lease Year.
3.9 If Tenant, at any time during the Primary Term, changes the primary use
of the Premises (e.g. from "retail" to "residential", etc.), Base Rent for the
Lease Year following the Lease Year in which such change of use is made shall be
modified to be the then current Fair Market Rent, determined in accordance with
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Section 3.7 hereof, with the exception that the changed use shall be valued and
not the current use. In no event shall the Base Rent be reduced below the
previous year's Base Rent. Commencing on the first day of each succeeding year
after a change in Base Rent in accordance with this Section 3.9, Base Rent shall
increase to an amount equal to one hundred and two percent (102%) of the Base
Rent effective for the preceding Lease Year.
3.10 All amounts payable under this Article, as well as all other amounts
payable by Tenant to Landlord under the terms and provisions of this Lease,
shall be payable to Landlord's Notice Address, or at such other place as
Landlord shall, from time to time, designate by notice to Tenant.
3.11 In addition to Annual Base Rent, Tenant shall pay all Taxes, insurance
premiums, and other sums, charges, liabilities, obligations and other amounts of
whatsoever nature that are required to be paid by Tenant to Landlord pursuant to
this Lease without deduction or offset of any amount for any reason whatsoever.
Those additional amounts are collectively referred to as "Additional Rent." It
is intended that the rent provided for in this Lease shall be absolutely net to
Landlord throughout the Primary Term hereof, free of any taxes (except as
provided in Section 4.6), costs, expenses, liabilities, charges or other
deductions whatsoever, with respect to the Premises or Project and/or the
construction, ownership, leasing, operation, maintenance, repair, rebuilding,
use or occupation thereof, or with respect to any interest of Landlord therein.
So long as Tenant is not then in default under this Lease and except as
otherwise expressly provided in this Lease, Tenant may pay applicable items of
Additional Rent directly to the person entitled thereto.
3.12 Tenant acknowledges that late payment by Tenant to Landlord of any
sums due under this Lease will cause Landlord to incur costs not contemplated by
this Lease--including processing and accounting charges, and late charges that
may be imposed on Landlord. As a fair and reasonable estimate of the costs that
Landlord will incur by reason of late payment by Tenant, and in addition to any
other charges provided for herein, Tenant agrees to pay Landlord a late fee of
five percent (5%) of the overdue amount on all amounts not paid by Tenant to
Landlord on or before the fifth (5th) day of each month. Any sums that remain
unpaid to Landlord by Tenant after ten (10) days shall bear Default Interest
until paid in addition to the late charge.
3.13 On or before the Rent Commencement Date, Tenant, in Tenant's sole
discretion, shall provide Landlord with either (i) United States
government-backed securities, or (ii) a clean, irrevocable, and unconditional
letter of credit, in an amount equal to the present value of the Base Rent for
any Partial Lease Year after the Rent Commencement Date and the first four (4)
full Lease Years of the Primary Term (the "Security Deposit"). The Security
Deposit shall be held by Landlord as security for the faithful performance by
Tenant of all of the terms, covenants, and conditions of this Lease to be kept
and performed by Tenant during the Term hereof. If Tenant is in Default
hereunder, Landlord may (but shall not be required to) draw on the Security
Deposit for the payment of any Base Rent, Additional Rent, or any other sum in
default, or for the payment of any amount that Landlord may spend or become
obligated to spend by reason of Tenant's Default. Provided Tenant is not in
Default and is faithfully performing its obligations hereunder, Tenant may use
the securities or funds securing the Security Deposit to make required payments
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of Base Rent during the Partial Lease Year after the Rent Commencement Date and
the first four (4) full Lease Years and upon such payment the amount of the
Security Deposit shall be reduced by the amount of such Base Rent paid. On the
first day of the fifth (5th) full Lease Year, the Security Deposit, as
diminished, shall be released by Landlord in full and returned to Tenant. If
Landlord's interest in this Lease terminates prior to such date, Landlord shall
transfer the remainder of the Security Deposit to Landlord's
successor-in-interest.
3.14 On or before the Rent Commencement Date, Tenant shall provide to
Landlord a letter of credit to be security for Tenant's construction of
improvements on the Property from an issuer with at least a "BBB+" rating from
Standard & Poor's in the amount of Twenty Million Dollars ($20,000,000) and
otherwise on terms reasonably satisfactory to Tenant and Landlord. Tenant shall
maintain such letter of credit (or replacement thereto) until the earlier to
occur of (i) completion of construction of and the Leasing of Four Hundred
Twenty-four Thousand Thirty-four (424,034) square feet of the Floor Area to be
constructed by Tenant (determined in accordance with Article 6 hereof)
("Substantial Completion"), or (ii) four (4) years from the date such initial
letter of credit was provided. "Leasing" for purposes of (i) above shall mean
that Tenant has (x) entered into a lease with a subtenant, (y) received a
certificate of occupancy for the space to be occupied by the applicable
subtenant, and (z) the subtenant has commenced paying rent to Tenant. Such
letter of credit shall provide that Landlord may draw upon the letter of credit
only if Commencement of Construction has not occurred within forty eight (48)
months from the date of the initial letter of credit or Tenant fails to provide
Landlord a replacement letter of credit (to the extent required under this
subsection) within thirty (30) days prior to the expiration of such letter of
credit or replacement letter of credit. Should the letter of credit be drawn
upon by Landlord, such payment shall be deemed a penalty payment made as
Additional Rent hereunder and shall not be applicable to Base Rent, nor shall
such payment relieve Tenant from its obligation to pay Base Rent due hereunder.
ARTICLE 4
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TAXES AND ASSESSMENTS
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4.1 Promptly after the Rent Commencement Date, Landlord shall cause the
Premises to be established as a separate tax parcel. Subject to Section 4.6
below, Tenant shall pay all real estate taxes, personal property taxes, business
taxes, general or special assessments, water and sewer rents and charges,
license fees, public charges, any occupancy tax or similar tax incurred from and
after the Rent Commencement Date until the termination of this Lease, whether or
not imposed on or measured by the rents payable by Tenant, and other
governmental levies and charges, of any kind and nature whatsoever, which are
assessed, levied, confirmed, imposed or become a lien upon the Premises or the
improvements thereon, or both, or any part of either thereof, during the Primary
Term of this Lease and any transfer, excise, transaction, sales, privilege, or
tax measured by the rent payable by Tenant under this Lease or any tax solely on
the rent payable by Tenant under this Lease, whether or not such tax is imposed
on Landlord or Tenant (all of which are hereinafter referred to as "Taxes")
levied or assessed against the Premises during the Primary Term.
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4.2 Tenant agrees to pay or cause to be paid (except as hereinafter
provided in this Article), at least twenty (20) days before any fine, penalty,
interest or cost may be added thereto for the non payment thereof, all Taxes.
If, by law, any Tax is payable or may at the option of the taxpayer be paid in
installments (whether or not interest shall accrue on the unpaid balance of such
Tax), Tenant may pay the same (and any accrued interest on the unpaid balance of
such Tax) in installments as the same respectively become due and before any
fine, penalty, interest or cost may be added thereto for the non payment of any
such installment and interest. Any Tax relating to a fiscal period of the taxing
authority in which the Primary Term of this Lease shall commence or end (whether
or not such Tax shall be assessed, levied, confirmed, imposed or become a lien
upon the Premises or the improvements constructed thereon, or become payable in
respect thereto during the Primary Term), shall be apportioned so that Tenant
shall pay only that proportion of such Tax which corresponds with the portion of
said period as is within the Primary Term hereby leased.
4.3 Tenant covenants to furnish to Landlord, promptly upon request,
official receipts (or true copies thereof) of the appropriate taxing authorities
evidencing the payment of Taxes on the Premises and improvements thereon.
4.4 Notwithstanding anything to the contrary herein contained, if Tenant
deems any Tax relating to the Premises or the improvements thereon excessive or
illegal, Tenant may defer payment thereof so long as the validity or the amount
thereof is contested by Tenant in good faith and Tenant shall have deposited
with Landlord a bond in form, and issued by a surety company, reasonably
satisfactory to Landlord, or a sum of money or United States government bonds,
notes, certificates or other government securities and other marketable
securities satisfactory to Landlord, in an amount or of a value equal at all
times during the period that such bond shall be in force, or of such deposit at
least to the amount so contested and unpaid, together with all interest and
penalties in connection therewith and all charges that may or might be assessed
against or become a charge on the Premises or any part thereof in said
proceedings. If at any time during the continuance of such proceedings Landlord
shall reasonably deem the deposit made with it or the amount of the surety bond
insufficient, Tenant shall, upon demand, deposit with Landlord such additional
deposit or such additional surety bond as Landlord and/or Landlord's Mortgagee
may reasonably request, and upon failure of Tenant so to do, the amount
theretofore deposited may be applied, or the securities may be sold by Landlord
for the account of Tenant and the net proceeds of sale may be applied or the
Tenant or surety shall pay the amount of said bond (and any such bond shall
contain provision to that effect), and the same shall be applied, to the
payment, removal and discharge of such Tax and interest and penalties in
connection therewith and any costs, fees or other liabilities accruing in such
proceedings, and the balance, if any, shall be returned to Tenant, provided
Tenant is not in default hereunder. If the amount so deposited or the net
proceeds from the sale of the securities or the amount paid by Tenant or its
surety shall be insufficient for this purpose, Tenant shall forthwith pay to
Landlord such additional sum as may be necessary to pay the same.
4.5 Any contest as to the validity or amount of any Tax, whether before or
after payment, may be made by Tenant, in the name of Landlord or of Tenant, or
both, as Tenant shall determine, and Landlord agrees that it will, at Tenant's
expense, cooperate with Tenant in any such contest to such extent as Tenant may
reasonably request. It is understood, however, that Landlord shall not be
subject to any liability for the payment of any costs or expenses in connection
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with any such proceeding brought by Tenant and Tenant covenants to pay, and to
indemnify and save Landlord harmless from, any such costs or expenses. Tenant
shall be entitled to any refund of any such Tax and penalties or interest
thereon which have been paid by Tenant or which have been paid by Landlord and
reimbursed to Landlord by Tenant.
4.6 It is expressly understood and agreed that Tenant shall not be required
to pay, or reimburse Landlord for (i) any federal, capital levy, franchise tax,
gross receipts tax, revenue tax, premium tax, income tax or profits tax of
Landlord or any such tax imposed after the Effective Date by any state or local
governmental authority or jurisdiction if such tax is determined on the basis of
the general assets, or the general net income or net revenue of Landlord, or
(ii) any estate, inheritance, devolution, succession, transfer, stamp, legacy or
gift tax which may be imposed upon or with respect to any transfer of Landlord's
interest in the Premises.
4.7 If Tenant fails to pay any Taxes when required to be paid pursuant to
this Article 4 and that failure continues for more than five (5) days, then, in
addition to any other remedies available to Landlord under this Lease, Landlord
may pay such Taxes, in which event Tenant shall immediately reimburse Landlord
for the amount thus advanced by Landlord, and pay Landlord an administrative fee
in the amount of 15% of the amount thus advanced (to cover Landlord's processing
and other administrative costs in connection therewith), and pay Landlord
Default Interest on the amount advanced and the foregoing-described
administrative fee from the date of the advance until paid by Tenant.
4.8 Tenant shall pay all assessments chargeable against the Premises
pursuant to the CCRs and incurred from and after the Rent Commencement Date
until the termination of this Lease. If Tenant fails to pay such assessments
when due and such failure continues for more than thirty (30) days, then, in
addition to any other remedies available to Landlord under this Lease, Landlord
may pay such assessments, in which event Tenant shall promptly reimburse
Landlord for the amount thus advanced by Landlord, pay Landlord an
administrative fee in the amount of 15% of the amount thus advanced (to cover
Landlord's processing and other administrative costs in connection therewith),
and pay Landlord Default Interest on the amount advanced and the
foregoing-described administrative fee from the date of the advance until paid
by Tenant.
ARTICLE 5
---------
UTILITIES
---------
Tenant shall during the Primary Term pay, at its sole cost and expense, or
cause to be paid any and all charges for the connection and use of telephone,
sanitary or storm sewer, communications, cable television, garbage collection or
removal, fuel, heat, water, gas, electric light, and power (collectively
"Utilities") services for the Premises or the improvements thereon. Landlord
will not be responsible for the connection of any Utilities to the Premises.
Tenant shall maintain, repair, and, as required, replace all Utility facilities
serving the Premises, regardless whether located upon the Premises, in good
order, condition and repair. Notwithstanding any contrary provision of this
Lease, Landlord will not be liable for any interruption, failure or
unavailability of any Utility services to the Premises, unless caused by the
gross negligence or intentional misconduct of Landlord.
11
ARTICLE 6
---------
CONSTRUCTION OF DEVELOPMENT
---------------------------
6.1 Within thirty (30) days after the date that the Dial Lease terminates
or expires and Dial and all Persons claiming by, through or under Dial have
vacated the Premises: (i) Landlord shall terminate of record that certain
Declaration of Covenants, Conditions and Restrictions dated June 30, 2000 and
recorded in the official records of the Maricopa County, Arizona recorder's
office as document #20000503638 and provide evidence thereof to Tenant and (ii)
Tenant will commence demolition of the buildings and all other existing
improvements on the Premises, including without limitation, foundations,
(collectively, the "Dial Buildings"). Landlord shall pay all costs of such
demolition (including all costs incurred to clear, grade and grub the Premises)
as well as all necessary environmental remediation to the Premises not otherwise
payable by Dial under the Dial Lease. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all claims or loss asserted against
Landlord by reason of such demolition. Prior to commencing such demolition,
Tenant shall first obtain bids from two (2) reputable and financially
responsible contractors for the demolition of the improvements and submit the
same to Landlord for approval. Landlord shall have fifteen (15) days from the
receipt of said bids to either approve or reject the bids by written notice to
Tenant. If Landlord disapproves of either bid, Landlord will solicit a bid from
a third qualified contractor for substantially the same work specifications.
After all bids are received, Landlord and Tenant agree that the construction
contract shall be awarded to the contractor that has provided the lowest bid.
Tenant will enter into the demolition contract with the lowest qualified bidder
and Landlord will make payment directly to such contractor in accordance with
the obligations of the owner under such contract. Notwithstanding any provision
hereof to the contrary, Tenant shall not be responsible for any liens arising as
a result of nonpayment of such contractor. Landlord hereby grants to Tenant a
license to enter Landlord's Retained Land to carry out the activities described
in this Section 6.1.
6.2 The Floor Area of any improvements constructed by Tenant shall be
determined and certified by Xxxxxx Architects, Inc. of Scottsdale, Arizona or
another architect licensed to practice in the State of Arizona and acceptable to
Landlord and Tenant (the "Architect"). Notice of such Floor Area shall be given
by the Architect in writing promptly upon completion and shall be accompanied by
a Certificate of Completion signed by the Architect. If a dispute arises
regarding the Floor Area of any improvements, it will be mutually settled within
thirty (30) days by the measurement and/or analysis of a non-interested third
party architect or engineer selected by the Landlord's and Tenant's respective
architects. The cost of such third party professional shall be shared equally by
Landlord and Tenant.
ARTICLE 7
---------
REPAIRS AND MAINTENANCE
-----------------------
7.1 Landlord will have no obligation whatsoever with respect to the
maintenance, repair or replacement of the Premises or any improvements or
personal property located thereupon.
12
7.2 Tenant shall at all times, from and after the Rent Commencement Date,
maintain, repair, and, as necessary, replace the Premises, improvements and
personal property located thereupon so as to keep them in good order, condition
and repair, ordinary wear and tear excepted.
7.3 Tenant shall at all times, from and after the Rent Commencement Date,
maintain the Premises consistently and in accordance with the CCRs.
ARTICLE 8
---------
BROKERAGE
---------
Landlord and Tenant hereby agree to Indemnify each other from and against
any and all Claims for brokerage commissions arising out of any communication or
negotiations had by Landlord or Tenant with any broker regarding the Premises or
any other premises in the Complete Site and/or the consummation of this Lease.
Landlord and Tenant acknowledge that the Corritorre Company, an Arizona
corporation ("Xxxxxxxxx"), is entitled to a finder's fee in connection with the
execution of this Lease and will be compensated by Tenant pursuant to a separate
agreement captioned "Commission Agreement" entered into between Tenant and
Xxxxxxxxx.
ARTICLE 9
---------
USE OF PREMISES
---------------
9.1 The Premises may be used and occupied by Tenant (and those assignees
and subtenants permitted hereunder) for any lawful purpose except for any
purpose or use prohibited under the CCRs or any other documents of record as of
the Effective Date (the "Permitted Use").
9.2 Tenant shall comply in all material respects with all present and
future federal, state and local laws, ordinances, orders, rules and regulations,
including, without limiting the generality of the foregoing, the Americans with
Disabilities Act, the Occupational Health and Safety Act and Environmental Laws
and shall timely procure, or cause its subtenants to procure, as applicable, all
permits, certificates, licenses and other authorizations required by applicable
laws relating to the use and occupancy of the Premises.
9.3 Hazardous Substances.
(a) Except for such quantities as are normally used in the operation
of the Premises, Tenant may not cause or permit any Hazardous Substance to
be brought upon, kept or used in or about the Premises, without Landlord's
prior written consent, which may be granted or denied in Landlord's sole,
absolute and subjective discretion. Tenant will use commercially reasonable
efforts to cause all Hazardous Substances that are brought onto the
Premises to be used and handled in compliance in all material respects with
all Environmental Laws and with Landlord's requirements in connection
therewith.
13
(b) If Tenant breaches its obligations under Section 9.3(a), then
Tenant will Indemnify Landlord and the Landlord Parties from and against
any and all Claims that arise during or after the Primary Term of this
Lease as a result of such breach.
9.4 Tenant shall, at Tenant's sole cost and expense, procure or cause to be
procured any and all necessary permits, licenses or other authorizations
required for the lawful and proper construction, use, occupation, operation and
management of the Premises and the improvements thereon.
ARTICLE 10
----------
INDEMNIFICATION AND NON LIABILITY OF LANDLORD/INSURANCE
-------------------------------------------------------
10.1 Indemnification and Waivers.
(a) To the fullest extent permitted by law, Tenant will Indemnify
Landlord Parties against all Losses and Liabilities arising from (a) any
Personal Injury, Bodily Injury or Property Damage (each term as defined in
the form of commercial general insurance policy issued by Insurance
Services Office, Inc. most recently prior to the date of the injury or loss
in question) whatsoever occurring in or at the Premises; (b) any Bodily
Injury to an employee of a Tenant Party arising out of and in the course of
employment of the employee and occurring anywhere in the Premises; (c) the
use or occupancy, or manner of use or occupancy, or conduct or management
of the Premises or of any business thereon; (d) any act, error, omission or
negligence of any of the Tenant Parties in, on or about the Premises; (e)
the conduct of Tenant's business; (f) any alterations, activities, work or
things done, omitted, permitted or allowed by Tenant Parties in, at or
about the Premises, including the violation of or failure to comply with,
or the alleged violation of or alleged failure to comply with any laws, now
existing or hereafter enacted, promulgated or issued after the Effective
Date of this Lease, including Environmental Laws; (g) all damages sustained
by Landlord as a result of any holdover by Tenant or any Tenant Party upon
any part of the Premises including, but not limited to, any claims by
another tenant resulting from a delay by Landlord in delivering possession
of the Premises to such tenant; (h) any liens or encumbrances arising out
of any work performed or materials furnished to the Premises after the
Effective Date; (i) commissions or other compensation or charges claimed by
any real estate broker or agent, with respect to this Lease by, through or,
under Tenant; or (j) transfer taxes, brokerage commissions, leasing
commissions or increases in Real Estate Taxes against the Development
resulting from any transfer of the Premises, this Lease, any interest of
Tenant in either the Premises or this Lease, or any combination of the
foregoing by Tenant, except to the extent such Loss or Liability is a
result of Landlord's gross negligence or willful misconduct.
(b) To the fullest extent permitted by law, Tenant, on behalf of all
Tenant Parties, Waives all Claims against Landlord Parties arising from the
following: (a) any Personal Injury, Bodily Injury or Property Damage
occurring in or at the Premises; (b) any loss of or damage to property of a
Tenant Party located in the Premises by theft or otherwise; (c) any
Personal Injury, Bodily Injury or Property Damage to any Tenant Party
14
caused by other tenants of the Premises, parties not occupying space in the
Premises, occupants of property adjacent to the Premises, or the public or
by the construction of any private, public or quasi-public work occurring
in the Premises; (d) any interruption or stoppage of any utility service or
for any damage to persons or property resulting from such stoppage; (e)
business interruption or loss of use of the Premises suffered by Tenant;
(f) any latent defect in or upon the Premises; (g) damages or injuries or
interference with Tenant's business, loss of occupancy or quiet enjoyment
and any other loss resulting from the exercise by Landlord of any right or
the performance by Landlord of any obligations under this Lease; (h) any
Bodily Injury to an employee of a Tenant Party arising out of and in the
course of employment of the employee and occurring anywhere in the
Premises; or (i) any consequential, special or indirect damages suffered by
Tenant or any Tenant Party, except to the extent any of the foregoing is a
result of Landlord's gross negligence or willful misconduct.
(c) The indemnification provided in this Article 10 may not be
construed or interpreted as in any way restricting, limiting or modifying
Tenant's insurance or other obligations under this Lease. The provisions of
this Article 10 are independent of Tenant's insurance and other
obligations. Tenant's compliance with the insurance requirements and other
obligations under this Lease does not in any way restrict, limit or modify
Tenant's indemnification obligations under this Lease. The indemnification
and waiver provisions of this Article 10 shall apply solely with respect to
Landlord Parties acting in their capacity as Landlord and shall not act to
waive any indemnification or other provisions specifically agreed to by any
Landlord Parties in any other agreement.
(d) The provisions of this Article 10 will survive the expiration or
earlier termination of this Lease until all Claims against Landlord Parties
involving any of the indemnified or waived matters are fully and finally
barred by the applicable statutes of limitations.
10.2 Landlord and Tenant each hereby Waive any Losses and Liabilities one
may have against the other, and their respective representatives, on account of
any Losses and Liabilities occasioned to Landlord (or any Landlord Party) or
Tenant, as the case may be, or their respective property, the Premises, or their
contents, arising from any risk generally covered by a "causes of loss - special
form" property insurance policy and from any risk covered by any policy of
property insurance then in effect (whether or not the party suffering the Losses
and Liabilities actually carries any insurance, recovers under any insurance or
self-insures) or which right of recovery arises from loss of earnings or rents
resulting from loss or damage to any such property. In addition, Landlord and
Tenant, for themselves and on behalf of their respective insurance companies,
waive any right of subrogation that any such insurance company may have against
Landlord, any Landlord Party or Tenant. It is the intent of the parties that the
parties will look solely to their respective insurance companies for recovery in
the foregoing cases. The foregoing waivers of subrogation will be operative only
so long as generally available in the State of Arizona.
10.3 From and after the date that the Dial Lease terminates or expires and
Dial and all Persons claiming by, through or under Dial have vacated the
Premises (or any earlier entry by Tenant upon the Premises), Tenant shall carry
or cause its subtenants to carry, as applicable, at Tenant's or the applicable
15
subtenant's sole cost and expense, the following types of insurance, in the
amounts specified below or such higher amounts as are customary in the locale
where the Development is located (any dispute as to whether a higher insurance
limits are customary will be subject to arbitration pursuant to Section 24.1
hereof).
(a) Commercial general liability insurance covering personal injury,
bodily injury (including wrongful death) and damage to property with a
combined single limit of not less than Ten Million and No/100 Dollars
($10,000,000.00), per occurrence, Ten Million and No/100 Dollars
($10,000,000.00) annual aggregate insuring against any and all liability of
the insured with respect to the Premises, or arising out of the
maintenance, use or occupancy thereof, including premises operations,
products and completed operations providing coverage at least as broad as
ISO policy form CG 00 01. The commercial general liability insurance policy
shall include contractual liability (by endorsement or otherwise) covering
Tenant's indemnification obligations under this Lease. At least One Million
and No/100 Dollars ($1,000,000.00) of such insurance coverage shall be
primary coverage and the remaining Nine Million and No/100 Dollars
($9,000,000.00) of such coverage may be pursuant to an umbrella or excess
liability policy. In addition, the policy required pursuant to the
provisions of this Section 10.3(a) may not have a deductible in excess of
Ten Thousand and No/100 Dollars ($10,000.00).
(b) If applicable, Business Auto Coverage for owned, hired and
non-owned vehicles with a combined single limit of not less than Five
Million and No/100 Dollars ($5,000,000.00), per occurrence, Five Million
and No/100 Dollars ($5,000,000.00) annual aggregate. At least One Million
and No/100 Dollars ($1,000,000.00) of such coverage shall be primary
coverage and the remaining Four Million and No/100 Dollars ($4,000,000.00)
of such coverage may be pursuant to an umbrella or excess liability policy.
In addition, the policy required pursuant to the provisions of this Section
10.3(b) may not have a deductible in excess of Ten Thousand and No/100
Dollars ($10,000.00).
(c) Insurance covering the full replacement cost of all plate glass on
the Premises. Tenant will have the right to self-insure for this risk;
provided, however, that Tenant shall not be required to carry such
insurance on the Dial Building.
(d) Boiler and machinery insurance on all boilers, pressure vessels,
gas-fired equipment, air conditioning equipment and systems serving or
located upon the Premises. If not covered by the insurance described in
Section 10.3(e), then the insurance specified in this Section 10.3(d) shall
be in an amount not less than one hundred percent (100%) of the full
replacement cost of the improvements and all personal property of Tenant or
a subtenant from time to time in or upon the Premises; provided, however,
that Tenant shall not be required to carry such insurance on the Dial
Building.
(e) "Causes of Loss-Special Form" property insurance, including
coverage for sprinkler leakage, vandalism and malicious mischief and
so-called ordinance or law coverage covering all of the improvements and
any personal property from time to time in, on or upon the Premises, in an
amount not less than one hundred percent (100%) of their full replacement
cost, providing coverage at least as broad as ISO policy forms CP 10 30 and
CP 00 10; provided, however, that Tenant shall not be required to carry
16
property insurance on the Dial Building. The policy required pursuant to
the provisions of this Section 10.3(e) may not have a deductible in excess
of Twenty Five Thousand and No/100 Dollars ($25,000.00). Any policy
proceeds for the improvements and for the personal property of Landlord
shall be used for the repair or replacement of the property damaged or
destroyed.
(f) With respect to any subtenants that serve alcohol from their
premises, the policy of commercial general liability insurance required
pursuant to Section 10.3(a) shall include coverage for employer's
liability, host liquor liability and liquor liability coverage with a
combined single limit of not less than Ten Million and No/100 Dollars
($10,000,000.00), per occurrence. At least One Million and No/100 Dollars
($1,000,000.00) of such insurance coverage shall be primary coverage and
the remaining Nine Million and No/100 Dollars ($9,000,000.00) of such
coverage may be pursuant to an umbrella or excess liability policy.
(g) A policy or policies of workers' compensation insurance with an
insurance carrier and in amounts required by applicable law and a policy of
employer's liability insurance with limits of liability not less than Five
Million and No/100 Dollars ($5,000,000.00), each accident; Five Million and
No/100 Dollars ($5,000,000.00), disease policy limit; and Five Million and
No/100 Dollars ($5,000,000.00) disease each employee. Both such policies
shall contain waivers of subrogation in favor of Landlord. If, in
accordance with the provisions of Section 10.3(a) or (f), Tenant maintains
a policy of umbrella or excess liability insurance, such policy shall also
provide umbrella or excess liability coverage for Tenant's policy of
employer's liability insurance.
(h) A policy or policies of business income/business interruption
insurance and extra expense coverage, including "extended business income"
coverage (collectively, "Business Income Insurance") with coverage that
will reimburse Tenant for all direct and indirect loss of rent, income and
charges and costs incurred arising out of all named perils insured against
by Tenant's policies of property insurance, including prevention of, or
denial of use of or access to, all or part of the Premises or Development
as a result of those named perils; provided Tenant shall not be required to
carry such insurance until completion of the Project. The Business Income
Insurance coverage shall provide coverage for no less than eighteen (18)
months of such loss of rent, income, charges and costs.
(i) All policies of insurance to be procured by Tenant shall be issued
by insurance companies having a general policy holders rating of not less
than A/IX (to the extent available) in the most current available "Best's
Key Rating Guide" and be qualified to do business in the State of Arizona.
If, during the term of a policy the insurer's general policy holder's
rating shall become less than A/IX, Tenant may satisfy such requirement by
obtaining a so-called "cut-through" endorsement from a re-insurer with such
rating. If no insurer with such a rating is available and qualified to do
business in the state of Arizona, Tenant shall procure insurance from an
insurer having no less than the next highest rating. All property policies
shall be issued in the name of Tenant (and/or the applicable Subtenant),
and shall name Landlord and the Landlord Parties as "loss payees as their
interests may appear". All liability policies obtained by Tenant (and/or
17
any Subtenant) shall name Landlord, Landlord's Mortgagee, Landlord's
management agent and the Landlord Parties as additional insureds. In
addition, Tenant's liability policies shall be endorsed as needed to
provide cross-liability coverage for Tenant, Landlord and Landlord's
Mortgagee and shall provide for severability of interests. Evidence of
insurance meeting the requirements of XXXXX Form Nos. 27 or 28 or their
equivalents and such other evidence as may be reasonably required by
Landlord and Landlord's Mortgagee and evidence of required additional
insured endorsements on ISO Form CG 20-26 or its equivalent (collectively
referred to in this Section 10.3 as "Certificates") shall be delivered to
Landlord prior to any entry by Tenant upon the Premises and thereafter,
executed copies of renewal policies or Certificates thereof shall be
delivered to Landlord at least ten (10) days prior to the expiration of the
term of each such policy. As often as any such policy expires or
terminates, renewal or additional policies shall be procured and maintained
by Tenant in like manner and to like extent. All policies of insurance
delivered to Landlord shall contain a provision that the company writing
the policy will give Landlord thirty (30) days notice in writing in advance
of any cancellation or lapse or the effective date of any material change
in the policy, including any reduction in the amounts of insurance. All
policies of Tenant and any Subtenant shall be written as primary policies
and shall provide that any insurance that Landlord or Landlord's Mortgagee
may carry is strictly excess, secondary and non-contributing with any
insurance carried by Tenant (or any Subtenant). The insurance requirements
contained in this Article 10 are independent of Tenant's waiver,
indemnification and other obligations under this Lease and will not be
construed or interpreted in any way to restrict, limit or modify Tenant's
waiver, indemnification or other obligations or to in any way limit
Tenant's obligations under this Lease.
10.4 Tenant's obligation to carry the insurance required by this Article 10
may be brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by Tenant and/or may be satisfied by one or
more subtenants; provided, however, that the coverage afforded Landlord will not
be reduced or diminished by reason thereof, and provided further that the
requirements set forth in this Article 10 are otherwise satisfied. If Tenant
uses such a blanket policy, Tenant shall deliver to Landlord satisfactory
evidence that the Premises has been properly added to the blanket policy and
evidence that the insurance company that issued the blanket policy has allocated
to the Premises the type of insurance coverage in the amounts required by this
Article 10, with the limitations of liability required by this Lease. Tenant
will permit Landlord at any reasonable time to inspect any policies of insurance
of Tenant and of any Subtenant.
10.5 Landlord makes no representation or warranty to Tenant that the amount
of insurance to be carried by Tenant under the terms of this Lease is adequate
to fully protect Tenant's interest. If Tenant believes the amount of any such
insurance is insufficient, Tenant is encouraged to obtain, at its sole cost and
expense, such additional insurance as Tenant may deem desirable or adequate.
Tenant acknowledges that Landlord will not, by the fact of approving,
disapproving, waiving, accepting or obtaining any insurance, incur any liability
for or with respect to the amount of insurance carried, the form or legal
sufficiency of such insurance, the solvency of any insurance companies or the
payment or defense of any lawsuit in connection with such insurance coverage,
and Tenant hereby expressly assumes full responsibility therefore and all
liability, if any, with respect thereto.
18
10.6 Tenant agrees at its own expense to comply with all recommendations
and requirements with respect to the Premises and improvements, or its use or
occupancy thereof, of all applicable insurance underwriters and the Arizona
Department of Insurance or any similar public or private body, and any
governmental authority having jurisdiction over insurance rates with respect to
the use or occupancy thereof.
10.7 Tenant may not do or suffer to be done, or keep or suffer to be kept,
anything in, upon or about the Premises that will contravene any of Landlord's
policies insuring against loss or damage by fire or other hazards, or that will
prevent Landlord from procuring such policies from companies acceptable to
Landlord or which will in any way cause an increase in the insurance rates upon
any portion of the Premises. Tenant shall pay to Landlord as Additional Rent
upon demand the amount of any increase in premiums for insurance resulting from
any violation of the first sentence of this Section, even if Landlord has
consented to the doing of the act or the keeping of the item upon the Premises
that constituted such a violation (but payment of such Additional Rent will not
entitle Tenant to violate the provisions of the first sentence of this Section).
10.8 If Tenant fails to maintain any insurance required to be maintained
under this Lease and that failure continues for more than thirty (30) days after
receipt of written notice from Landlord, then, in addition to any other remedies
available to Landlord under this Lease, Landlord may procure such insurance on
Tenant's behalf, in which event Tenant shall immediately reimburse Landlord for
the amount advanced by Landlord, and pay Landlord an administrative fee in the
amount of 15% of the amount thus advanced (to cover Landlord's processing and
other administrative costs in connection therewith), and pay Landlord Default
Interest on the amount advanced and the foregoing-described administrative fee
from the date of the advance until paid by Tenant.
ARTICLE 11
----------
LIENS
-----
11.1 Tenant shall not suffer or permit any mechanic's, laborer's or
materialman's liens to stand against the Premises or the improvements thereon,
or any part thereof, or against the interest of Tenant in the Premises by reason
of any work, labor, services or materials done for, or supplied to, or claim to
have been done for, or supplied to, Tenant or anyone holding the Premises or any
part thereof through or under Tenant. If any such lien shall at any time be
filed against the Premises or the improvements thereon, or any part thereof, or
against the interest of Tenant in the Premises, Tenant shall cause the same to
be discharged of record within thirty (30) days after the date of filing the
same, by either payment, deposit or bond. If Tenant shall fail to discharge any
such lien within such period, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, procure the discharge of
the same either by paying the amount claimed to be due by deposit in court or
bonding, and/or Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of any action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment, if any, in favor of the lienor, with interest,
costs and allowances. Any amount paid or deposited by Landlord for any of the
aforesaid purposes, and all costs and other expenses of Landlord, including
reasonable counsel fees, in defending any such action or procuring the discharge
of such lien, with all necessary disbursements in connection therewith, shall be
payable by Tenant to Landlord on the next succeeding Rent Payment Date.
19
11.2 The provisions of Section 11.1 shall not apply to any mechanic's,
laborer's or materialman's liens to stand against the Premises or the
improvements thereon, or any part thereof, or against the interest of Tenant in
the Premises by reason of any work, labor, services or materials done for, or
supplied to, or claim to have been done for, or supplied to, Dial or anyone
holding the Premises or any part thereof through or under Dial, with respect to
which Tenant shall have no responsibility or liability.
11.3 Nothing in this Lease shall be deemed to be, or construed in any way
as constituting, the consent of Landlord to the filing of any lien against
Landlord's interest in the Premises by any person, firm or corporation for the
performance of any labor or the furnishing of any materials for any
construction, rebuilding, alteration or repair of or to the Premises or the
improvements thereon, or any part thereof.
ARTICLE 12
----------
RIGHT OF INSPECTION BY LANDLORD
-------------------------------
Landlord and its agents shall have the right to enter upon the Premises on
reasonable notice at reasonable times for the purpose of examining or inspecting
the same, provided such examination and inspection shall be done without
disturbing the business to be conducted therein by Tenant or in violation of any
Subtenant's sublease.
ARTICLE 13
----------
DAMAGE, DESTRUCTION, OR CASUALTY
--------------------------------
13.1 In the event of damage to or destruction of any of the improvements on
the Premises by fire or other casualty, Tenant shall give Landlord and any
Mortgagee prompt notice thereof. Tenant covenants and agrees that in case of
damage to or destruction of the improvements thereon by fire or otherwise, and
provided Tenant does not elect to terminate this Lease as provided in this
Article 13, Tenant will promptly, at Tenant's sole cost and expense, restore,
repair, replace, rebuild or alter the same as nearly as possible to the
condition the same was in immediately prior to such damage or destruction so
that the value and rental value of the buildings and improvements shall be
substantially equal to the value and rental value thereof immediately prior to
the occurrence of such fire, destruction, or other casualty. Such restoration,
repairs, replacements, rebuilding or alterations shall be commenced promptly and
prosecuted with reasonable diligence, subject to unavoidable delays. Unless this
Lease is terminated pursuant to Section 13.3 hereof, Base Rent and Additional
Rent shall continue unabated, without offset or other deductions during the
period of reconstruction.
13.2 All insurance proceeds received by Landlord, or any Leasehold
Mortgagee, as the case may be, on account of such damage or destruction, less
the cost, if any, of such recovery, shall be applied to the payment of the cost
of the restoration, repairs, replacements, rebuilding or alterations, including
expenditures made for temporary repairs or for the protection of property
20
pending the completion of permanent restoration, repairs, replacements,
rebuilding or alterations to the Premises and the improvements thereon
(hereinafter referred to as the "Work") and, provided Tenant is not in default
hereunder, may be withdrawn, as hereinafter provided, from time to time as the
Work progresses, upon receipt by Landlord, or any Leasehold Mortgagee, as the
case may be, of the following:
(a) A certificate ("Architect's Certificate") of an independent
architect or engineer selected by Tenant, who shall be reasonably satisfactory
to Landlord, and so long as any Leasehold Mortgage remains outstanding, the
holder or holders thereof, dated not more than thirty (30) days prior to the
application for such withdrawal, setting forth or stating that the contract
price for the Work, the amounts, if any previously paid thereon, the balance
due, the amount necessary to complete the Work, and that the sum then requested
to be withdrawn either has been paid by Tenant and/or is justly due to the
contractors, subcontractors, materialmen, engineers, architects or other persons
(whose names and addresses shall be stated), who have rendered or furnished
certain services or materials for the Work and giving a brief description of
such services and materials and the principal subdivisions or categories thereof
and the several amounts so paid or due to each of said persons in respect
thereof, and stating the progress of the Work up to the date of said Architect's
Certificate.
(b) A certificate signed by Tenant stating in substance that it has
sufficient funds, including the insurance moneys, to complete the Work; the
contract price for the Work; the amounts, if any, previously paid thereon; the
balance due; the amount necessary to complete the Work; and that all materials
and all property described in the certificate furnished pursuant to the
foregoing Subsection (a) and every part thereof, are free and clear of all
mortgages, liens, charges or encumbrances, subcontractors, materialmen,
engineers, architects or other persons (whose names and addresses and the
several amounts due them shall be stated), specified in said certificate
pursuant to the foregoing Subsection (a), which encumbrances will be discharged
upon payment of such indebtedness, and except pre-existing Leasehold Mortgages;
which certificate shall be accompanied with contractors' and subcontractors'
sworn statements and waivers of lien in actual dollar amounts to cover both
labor and material, all in compliance with the law of the State of Arizona,
unless such statements and waivers are held by the title insurance company
referred to in (c) below.
(c) A certificate of a title insurance company satisfactory to
Landlord; and, so long as any Leasehold Mortgage remains outstanding, the holder
or holders thereof, or a report on title from said title insurance company, or
continuation thereof, showing that there has not been filed against the Premises
or the improvements thereon, or any interest of Landlord or Tenant therein, any
vendor's, mechanics', laborers' or materialmen's statutory or other similar lien
which has not been discharged of record, except such as will be discharged upon
payment of the amount then requested to be withdrawn and, if such guarantees are
obtainable at reasonable cost, guaranteeing the aforesaid parties in interest
against undisclosed liens which may thereafter be filed for work done.
(d) Tenant shall procure and deliver to said title insurance company
such other documents and make such deposits with it as it may require as a
condition to issuing any title insurance.
21
Upon compliance with the foregoing provisions of this Section 13.2,
Landlord, or any Leasehold Mortgagee, as the case may be, shall, out of such
insurance money, on request of Tenant, pay monthly or cause to be paid monthly
to Tenant pursuant to the foregoing Subsection (a) of this Section, the
respective amounts stated in said Architect's Certificate to be due and/or shall
pay monthly or cause to be paid monthly to Tenant the amount stated in said
Architect's Certificate to have been paid by Tenant.
At any time after the completion in full of the Work, the whole balance of
the insurance money not theretofore withdrawn pursuant to the foregoing
provisions of this Section shall be paid to Tenant, provided Tenant is not in
default hereunder, upon receipt by Landlord, or any Leasehold Mortgagee, as the
case may be, of a certificate signed by Tenant, stating in substance as follows:
(i) that the Work has been satisfactorily completed in full; (ii) that all
amounts which Tenant is or may be entitled to withdraw under the foregoing
provisions of this Section 13.2 on account of services rendered or materials
furnished in connection with the Work have been withdrawn under said provisions;
and (iii) that all amounts for whose payment Tenant is or may become liable in
respect of the Work have been paid in full, accompanied by adequate title
insurance from a title insurance company as aforesaid.
Notwithstanding the foregoing, if the estimated cost of the Work does not
exceed $250,000 in Constant Dollars, all insurance proceeds received by
Landlord, or any Leasehold Mortgagee, as the case may be, on account of such
damage or destruction, less the cost, if any, of such recovery, shall be paid to
Tenant upon request to be applied to the payment of the cost of the Work and the
foregoing provisions of this Section 13.2 shall be of no force or effect.
13.3 Notwithstanding anything to the contrary contained herein, if the
improvements on the Premises should be rendered untenantable by fire or other
casualty during the last ten (10) years of the Primary Term to the extent of
fifty percent (50%) or more of the replacement cost of said improvements, Tenant
shall have the option to terminate this Lease by notice to Landlord within sixty
(60) days after the occurrence of such damage or destruction. Upon termination
as aforesaid, this Lease and the Primary Term hereof shall cease and come to an
end as of the effective date of such notice (which shall be not less than thirty
(30) nor more than ninety (90) days after the notice and shall be specified in
the notice), any unearned rent or other charges shall be apportioned as of the
effective date and Tenant and Leasehold Mortgagee, if any, shall assign to
Landlord all of their rights to the insurance proceeds payable as a result of
damage or destruction to the improvements on the Premises.
ARTICLE 14
----------
CONDEMNATION
------------
14.1 If, during the Primary Term of this Lease, the whole of the Premises
shall be taken or condemned in eminent domain proceedings for any public or
quasi public use, or less than the whole is so taken or condemned with the
result that the remainder of the Premises is insufficient to permit the
economical reconstruction of the improvements thereon ("Total Condemnation" or
"Constructive Total Condemnation", respectively), and the Tenant so certifies to
the Landlord, then the total award made with respect to the Premises shall be
apportioned between Landlord and Tenant, in accordance with the value of their
respective interests in the Premises and the improvements thereon at the time of
22
the vesting of title in such proceedings, determined pursuant to Section 14.3
hereof, and shall be paid at the time of the termination of this Lease pursuant
to this Section, and in the case of a Total Condemnation, this Lease shall cease
and terminate on the date on which Tenant loses possession of the Premises due
to such condemnation; and, except as hereinafter provided, in the case of a
Constructive Total Condemnation, this Lease shall cease and terminate thirty
(30) days after the date of the delivery of Tenant's certificate hereinabove
referred to. Upon the termination of this Lease due to a Constructive Total
Condemnation, the rent payment, if any, shall be apportioned as of the date of
termination.
14.2 If, during the Primary Term a portion of any of the property
comprising the Premises or improvements thereon shall be taken or condemned
under the right of eminent domain, and if Tenant does not certify to Landlord
that the property remaining is insufficient to permit the economical
reconstruction of the improvements thereon in accordance with Section 14.1 (a
"Partial Condemnation"), then Tenant shall, at Tenant's expense, restore the
improvements thereon on the property remaining so that they will constitute an
architectural unit of the same general character and condition (as nearly as may
be possible in the circumstances) as the previous improvements thereon, and this
Lease will remain in full force and effect with regard to the remaining portion
of such property. In such event the award shall be apportioned between Landlord
and Tenant in accordance with the value of their respective interests in the
Premises and the improvements thereon at the time of the vesting of title in
such proceedings.
14.3 (a) For the purpose of this Article 14, the value of Landlord's
interest in Total or Constructive Total Condemnation shall be the Condemnation
Price as defined in Section 14.6 hereof.
(b) In Partial Condemnation, the value of Landlord's interest shall
equal the Condemnation Price multiplied by a fraction, the numerator of which
shall be the amount of the Premises taken and the denominator of which shall be
the amount of the Premises originally subject to this Lease.
(c) In each case there shall be added to the value of Landlord's
interest all expenses, including reasonable attorneys' fees paid or incurred by
Landlord in or as a result of such condemnation.
(d) The balance of the award shall equal Tenant's interest.
14.4 Except as provided in Section 14.5, in the case of any Partial
Condemnation, the rent thereafter payable under this Lease shall be reduced in
the ratio which the net amount of the award received and retained by Landlord in
such condemnation proceeding (i.e., after deducting all expenses, including
attorneys' fees, incurred by the Landlord in or as a result of such proceeding)
shall bear to the Condemnation Price.
14.5 (a) If, at any time after the Effective Date, the whole or any part of
the Premises or improvements thereon or of Tenant's interest under this Lease
shall be taken or condemned by any governmental body or office or other
competent authority for its or their temporary use or occupancy, the foregoing
provisions of this Article shall not apply and Tenant shall continue to pay, in
23
the manner and at the times herein specified, the full amounts of the Base Rent
and Additional Rent and all other charges payable by Tenant hereunder and,
except only to the extent that Tenant may be prevented from so doing pursuant to
the terms of the order of the condemning authority, to perform and observe all
of the other terms, covenants, conditions and obligations hereof upon the part
of Tenant to be performed and observed, as though such taking had not occurred.
In the event of any such taking referred to in this Section 14.5, Tenant shall
be entitled to receive the entire amount of any award made for such taking,
whether paid by way of damages, rent or otherwise, unless such period of
temporary use or occupancy shall extend beyond the expiration date of the
Primary Term, in which case such award shall be apportioned between Landlord and
Tenant as of such date of expiration of the stated or extended term hereof, as
the case may be.
(b) Tenant covenants that, at the termination of any such period of
temporary use or occupancy, Tenant will, at its sole cost and expense, restore
the improvements thereon as nearly as may be reasonably possible to the
conditions in which the same was prior to such taking, but the Tenant shall not
be required to do such restoration work if the date of such termination shall
occur less than five (5) years prior to the expiration of the Primary Term, in
which event Tenant shall be entitled to the proceeds of the award, except for
any part thereof representing the cost of restoration.
(c) To the extent that Landlord receives, by way of apportionment or
otherwise, any award or payment to pay or compensate for the restoration of the
Premises, Landlord will pay such sum to Tenant, unless Tenant exercises its
rights to terminate this Lease as aforesaid.
14.6 "Condemnation Price" means the appraised value of the Premises, as if
unimproved and unencumbered by this Lease and unencumbered by any subleases,
determined as of the date on which title vests in the condemnor, without regard
to such condemnation. Notwithstanding the foregoing, if the condemnation occurs
during the last ten (10) years of the Primary Term, the Condemnation Price to
which Landlord shall be entitled shall be based upon the fair market value of
Landlord's remainder interest in the Premises and improvements thereon
immediately prior to such condemnation, appraised in accordance with the
provisions of Section 24.2 of this Lease, in which appraisal the value of the
Tenant's leasehold for the balance of the Primary Term and the value of
Landlord's remainder interest shall be determined. The percentages thus derived
shall be applied to the condemnation proceeds in order to determine the
proportionate shares of Landlord and Tenant.
ARTICLE 15
----------
LANDLORD'S AND MORTGAGEE'S RIGHTS TO PERFORM TENANT'S COVENANTS
---------------------------------------------------------------
15.1 Except to the extent otherwise provided in Article 4, if Tenant shall
at any time fail to pay, or cause to be paid, any Taxes pursuant to the
provisions of Article 4, or to take out, pay for, maintain or deliver or cause
to be taken out, paid for, maintained or delivered any of the insurance policies
provided for in Article 10 hereof, or shall fail to make any other payment or
perform any other act which Tenant is obligated to make or perform under this
Lease, or cause such to be done, then Landlord may, but shall not be obligated
so to do, after thirty (30) days' written notice to Tenant and to any Mortgagee
24
(but without notice in the event of an emergency) and without waiving, or
releasing Tenant from, any obligation of Tenant in this Lease contained, pay any
such imposition or effect such insurance coverage and pay premiums therefore,
and may make any other payment or perform any other act which Tenant is
obligated to perform under this Lease, in such manner and to such extent as
shall be necessary, and, in exercising any such rights, pay necessary and
incidental costs and expenses, employ counsel and incur and pay reasonable
attorneys' fees. All sums so paid by Landlord and all necessary and incidental
costs and expenses in connection with the performance of any such act by
Landlord, shall be deemed Additional Rent hereunder and, except as otherwise in
this Lease expressly provided, shall be payable to Landlord as Additional Rent
on the next Rent Payment Date, and Tenant covenants to pay any such sum or sums
with interest as aforesaid and Landlord shall have the same rights and remedies
in the event of the nonpayment thereof by Tenant as in the case of default by
Tenant in the payment of the Base Rent.
15.2 At any time when any Mortgage shall be in effect, any Mortgagee may
make any payment or perform any act required hereunder to be made or performed
by Tenant with the same effect as if made or performed by Tenant (after written
notice to Landlord); provided, however, that no entry by Mortgagee upon the
Premises or improvements thereon for such purpose shall constitute or be deemed
to be an eviction of Tenant or release Tenant from any obligation or default
hereunder (except any obligation or default which shall have been fully
performed or corrected by such payment or performance by a Mortgagee).
ARTICLE 16
----------
DEFAULT PROVISIONS
------------------
16.1 (a) This Lease and the Primary Term hereof are subject to the
limitation that if, at any time during the Primary Term, any one or more of the
following events (each, an "Event of Default") shall occur:
(i) if Tenant shall fail to pay any installment of the Base Rent
or any part thereof, when the same shall become due and payable, and such
failure shall continue for ten (10) days after receipt of written notice thereof
from Landlord to Tenant; or
(ii) if Tenant shall fail to pay any other charge or sum required
to be paid by Tenant hereunder, and such failure shall continue for thirty (30)
days after receipt of written notice thereof from Landlord to Tenant; or
(iii) if Tenant shall fail to perform or observe any other
requirement of this Lease (not hereinbefore in this Section 16.1 specified) on
the part of the Tenant to be performed or observed, and such failure shall
continue for thirty (30) days after receipt of written notice thereof from
Landlord to Tenant, provided, however, if the default is of such a nature that
it cannot be cured within such thirty (30) day period, then Tenant will have
such additional time as may be reasonably necessary to cure that default
provided Tenant (i) commences to cure that default within ten (10) days after
receipt of written notice thereof from Landlord and (ii) thereafter diligently
pursues such cure to completion.
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(b) Upon the happening of any one or more Events of Default, Landlord
shall have the right, then or at any time thereafter, to pursue and enforce any
and all rights and remedies available to Landlord hereunder or at law or in
equity, including but not limited to the right to give Tenant written notice of
Landlord's intention to terminate this Lease on a date specified in such notice,
which date shall not be less than thirty (30) days after the date of giving of
such notice, and on the date specified in such notice Tenant's right to
possession of the Premises shall cease and Tenant shall peaceably and quietly
yield to and surrender to Landlord the Premises and improvements thereon located
thereon, and this Lease shall thereupon be terminated and all of the right,
title and interest of the Tenant hereunder and in the improvements thereon shall
wholly cease and expire in the same manner and with the same force and effect as
if the date of expiration of such thirty (30) day period were the date
originally specified herein for the expiration of this Lease and the Primary
Term hereof, and the Tenant shall then quit and surrender the Premises and
improvements thereon to the Landlord, but the Tenant shall remain liable as
hereinafter provided.
(c) So long as any Leasehold Mortgage shall remain a lien on Tenant's
leasehold estate, Landlord agrees that simultaneously with the giving of any
such notice of default or of termination of this Lease to Tenant, it will give
the Leasehold Mortgagee a duplicate of such notice, provided the provisions of
Section 19.5 shall have been complied with. Notwithstanding the foregoing
provisions of this Section, so long as any Leasehold Mortgage shall remain a
lien on Tenant's leasehold estate, Landlord shall not have the right to exercise
any remedy provided above if the Base Rent and all other charges payable by
Tenant hereunder continue to be paid in accordance with the terms of this Lease.
If a Leasehold Mortgagee shall take possession of the Premises in a foreclosure
proceeding or by a Receiver, and the Base Rent and all other charges payable by
Tenant hereunder continue to be paid in accordance with the terms of this Lease,
the default under this Section shall be deemed cured.
16.2 In the event of any termination of this Lease as in Section 16.1 above
provided or as otherwise permitted by law, or if an Event of Default shall
continue beyond the expiration of any grace period above provided for, Landlord
may enter upon the Premises and improvements thereon, and have, repossess and
enjoy the same by summary proceedings, ejectment or otherwise, and in any such
event neither Tenant nor any person claiming through or under Tenant by virtue
of any statute or of an order of any court shall be entitled to possession or to
remain in possession of said Premises but shall forthwith quit and surrender the
Premises and improvements thereon. Landlord shall be under no liability for or
by reason of any such entry, repossession or removal of Tenant or any person
claiming through or under Tenant.
16.3 (a) In case of any such termination, re-entry, or dispossession by
summary proceedings, ejectment or otherwise, the Base Rent and all other charges
required to be paid by Tenant hereunder shall thereupon become due and payable
up to the time of such termination, re entry or dispossession, and Tenant shall
also pay to Landlord all expenses which Landlord may then or thereafter incur
for legal expenses, reasonable attorney's fees, brokerage commissions, and all
other costs paid or incurred by Landlord for restoring the Premises and
improvements thereon to good order and condition.
(b) In such case, Landlord may, at its option, re-let the Premises, or
any part thereof, as the agent of Tenant and Tenant shall pay Landlord the
difference between the Base Rent and Additional Rent hereby reserved and agreed
26
to be paid by Tenant for the portion of the Primary Term remaining at the time
of renting, termination, dispossession or ejection and the amount, if any,
received or to be received under such re-letting for such portion of the Primary
Term.
16.4 The right of Landlord to recover from Tenant the amounts hereinabove
provided for shall survive the issuance of any order for possession or other
cancellation or termination hereof, and Tenant hereby expressly waives any
defense that might be based upon the issuance of such order for possession or
other cancellation or termination hereof. Tenant hereby expressly waives service
of any notice of intention to re enter that may be required by law. Landlord and
Tenant hereby waive all right to trial by jury in any summary or other judicial
proceedings hereafter instituted by Landlord against Tenant in respect to the
Premises and the improvements thereon.
16.5 Anything in this Article 16 to the contrary notwithstanding, it is
expressly understood that, with respect to any Event of Default within the
purview of subdivision (iii) of Section 16.1 hereof, if such Event of Default is
of such a nature that it cannot, with due diligence, be cured within a period of
thirty (30) days, Landlord shall not be entitled to re enter the Premises and
the improvements thereon or serve a notice of termination upon Tenant, as
provided in said Section 16.1, nor shall the same be regarded as an Event of
Default for any of the purposes of this Lease, if Tenant shall have commenced
the curing of such default within the period of thirty (30) days referred to in
said subdivision (iii), and so long as Tenant shall thereafter proceed with
reasonable diligence to complete the curing of such default not susceptible of
being cured with due diligence within thirty (30) days, and the time of Tenant
within which to cure the same shall be extended for such period as may be
necessary to complete the same with due diligence.
16.6 At any time when any Leasehold Mortgage is in effect, Landlord will
not exercise any right, power or remedy with respect to any Event of Default
hereunder until the expiration of any grace period provided with respect
thereto, plus an additional period of thirty (30) days beyond such period or
beyond the date on which Landlord has given to any such Leasehold Mortgagee
written notice of such default or a copy of its notice to Tenant of such
default, whichever is later. Landlord will not exercise any right, power or
remedy with respect to any Event of Default described in Section 16.5 if any
Leasehold Mortgagee within such thirty (30) day period shall give to Landlord
written notice that it intends to undertake the correction of such default or to
cause the same to be corrected and so long thereafter as such Leasehold
Mortgagee shall prosecute diligently the correction of such default, whether by
exercise on behalf of Tenant of its obligations hereunder, entry on the Premises
or improvements thereon, foreclosure, sale or otherwise. Should any Leasehold
Mortgagee acquire the estate of Tenant, whether by foreclosure, sale or
otherwise, and so long as such Leasehold Mortgagee complies with Section 16.8
hereof, such Leasehold Mortgagee shall succeed to the estate of Tenant created
hereby.
16.7 (a) In case of the termination of this Lease by reason of the
happening of any Event of Default (except for Events of Default pursuant to
which Leasehold Mortgagee has already received notice pursuant to Section 16.6
hereof), Landlord shall give written notice thereof to any Leasehold Mortgagee
who shall have notified Landlord of its name and address pursuant to Section
19.5. If within thirty (30) days after the mailing of such notice, such
27
Leasehold Mortgagee shall pay or arrange to the satisfaction of Landlord for the
payment of a sum of money equal to any and all Base Rent and other charges due
and payable by Tenant hereunder, as of the date of such termination, in addition
to any and all expenses, costs and fees, including reasonable counsel fees,
incurred by Landlord in terminating this Lease and in acquiring possession of
the Premises, together with a sum of money equal to the amount which, but for
such termination, would have become due and payable under this Lease, from such
termination date up to and including a period of sixty (60) days beyond the date
of the mailing of such notice, Landlord shall, upon the written request of such
Leasehold Mortgagee, made any time within the first thirty (30) days of such
sixty (60) day period mutually execute and deliver within the last thirty (30)
days of such sixty (60) day period a new lease of the Demised premises to such
Leasehold Mortgagee, or to the nominee of such Leasehold Mortgagee, for the
remainder of the Primary Term of this Lease, and, to the extent permitted by
law, with priority over any Mortgage on the Premises created by Landlord and
over any other encumbrances created by Landlord; provided, however, that such
Leasehold Mortgagee shall have paid to Landlord a sum of money equal to all
expenses, including reasonable attorneys' fees, incident to the preparation,
printing, execution, delivery and recording of such new lease. Such new lease
shall contain the same clauses subject to which this demise is made, and shall
be at the same rent and on the same terms as herein contained, and subject
thereto the Landlord shall convey and transfer to such Leasehold Mortgagee title
to the improvements thereon and furnishings and personal property on the
Premises used in the operation and maintenance thereof.
(b) Nothing herein contained shall be deemed to impose any obligation
on the part of Landlord to deliver physical possession of the Premises to such
Leasehold Mortgagee, or to its nominee. Landlord agrees, however, that Landlord
will, at the sole cost and expense of such Leasehold Mortgagee or nominee,
cooperate in the prosecution of summary proceedings to evict the then defaulting
Tenant. If such Leasehold Mortgagee or nominee shall acquire a new lease
pursuant to this Section 16.7 (the Tenant under such new lease being in this
Section 16.7 called the "New Tenant"), and if, upon such termination of this
Lease, Landlord shall be holding any insurance recovery or shall be entitled to
receive all or any part thereof or to have all or any part thereof applied to
any restoration or alteration, then, Landlord agrees that Landlord shall receive
and continue to hold such amounts and apply the same or pay out the same to the
New Tenant, in the same manner and to the same extent as Landlord would have
been obliged to pay or apply the same to or for the benefit of Tenant if this
Lease had not terminated.
16.8 No party shall be entitled to become the owner of, or acquire any
interest in, the Tenant's interest in this Lease pursuant to a judgment of
foreclosure and sale, unless such party shall first have delivered to Landlord,
within twenty (20) days after the date of transfer of title upon any such
foreclosure of sale, an assumption agreement, dated as of the date of transfer
of title and executed in recordable form containing covenants and agreements
provided for in Section 18.1.
ARTICLE 17
----------
CUMULATIVE REMEDIES; WAIVER; CHANGE IN LAW
------------------------------------------
17.1 The specified remedies to which Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord may be lawfully entitled in case
of any breach or threatened breach by Tenant of any provision of this Lease.
28
17.2 The failure of Landlord to insist in any one or more cases upon the
strict performance of any of the terms, covenants, conditions, provisions or
agreements of this Lease or to exercise any option herein contained shall not be
construed as a waiver or a relinquishment for the future of any such term,
covenant, condition, provision, agreement or option. A receipt and acceptance by
Landlord of rent or any other payment, or the acceptance of performance of
anything required by this Lease to be performed, with knowledge of the breach of
any term, covenant, condition, provision or agreement of this Lease, shall not
be deemed a waiver of such breach, nor shall any acceptance of rent in a lesser
amount than is herein provided for (regardless of any endorsement on any check,
or any statement in any letter accompanying any payment of rent) operate or be
construed either as an accord and satisfaction or in any manner other than as
payment on account of the earliest rent then unpaid by Tenant, and no waiver by
Landlord of any term, covenant, condition, provision or agreement of this Lease
shall be deemed to have been made unless specifically acknowledged as such in
writing and signed by Landlord.
17.3 In addition to the other remedies provided in this Lease, Landlord
shall be entitled to the restraint by injunction of any violation or attempted
or threatened violation, of any of the terms, covenants, condition, provisions
or agreements of this Lease.
17.4 This Lease shall not be affected by any laws, ordinances or
regulations, whether Federal, state, county, city, municipal or otherwise, which
may be enacted or become effective from and after the Effective Date affecting
or regulating or attempting to affect or regulate the rent herein reserved or
continuing in occupancy Tenant, any Subtenants, or assignees of Tenant's
interest in the Premises and improvements thereon beyond the dates of
termination of their respective leases, or otherwise.
ARTICLE 18
----------
QUIET ENJOYMENT AND SURRENDER OF PREMISES
-----------------------------------------
18.1 So long as Tenant shall pay the rent provided for herein and shall
keep, observe and perform all of the other covenants of this Lease, Tenant shall
and may peaceably and quietly have, hold and enjoy the Premises and improvements
thereon for the Primary Term hereof free of interference from Landlord or those
claiming through or under Landlord. This covenant shall be construed as running
with the land to and against subsequent owners and successors in interest, and
is not, nor shall it operate or be construed as, a personal covenant of
Landlord, except to the extent of Landlord's interest in said Premises and only
so long as such interest shall continue, and thereafter this covenant shall be
binding only upon such subsequent owners and successors in interest, to the
extent of their respective interests, as and when they shall acquire the same,
and only so long as they shall retain such interest.
18.2 Except as otherwise provided in this Lease, Tenant shall, upon the
expiration or termination of this Lease for any reason whatsoever, surrender to
Landlord the improvements then upon the Premises, together with all alterations
and replacements thereof then on the Premises. Title to all trade fixtures,
furniture and equipment (other than building equipment) of Tenant and its
29
subtenants, installed in the improvements thereon then upon the Premises, shall
remain in Tenant and in such subtenants, and, upon the expiration or other
termination of this Lease, the same may, and upon demand of Landlord shall, be
removed and any resultant damage to the Premises or the improvements thereon
shall be repaired, by and at the expense of Tenant.
18.3 On or before the Rent Commencement Date Landlord shall provide Tenant
with a non-disturbance agreement from Landlord's Mortgagee. Such non-disturbance
agreement shall contain the following provisions and shall be in form reasonably
acceptable to counsel for Tenant:
(a) So long as Tenant shall not be in default of its obligations under
this Lease, such Mortgagee shall recognize this Lease and shall not disaffirm
the Lease even if Mortgagee shall foreclose the Mortgage or the Premises shall
be sold pursuant to a foreclosure sale to take a deed in lieu of such a
foreclosure sale;
(b) Tenant shall be entitled to use and occupy the Premises in
accordance with the provisions of the Lease;
(c) Tenant's possession of the Premises shall not be disturbed by
Mortgagee, its successors or assigns.
This provision shall be binding upon all Landlord's Mortgagees and
receivers thereunder and purchasers at any sale pursuant thereto. Landlord's
failure to comply with this Section prior to the Rent Commencement Date (or
within thirty (30) days after any such Mortgage or lien becomes superior to this
Lease) shall give Tenant, in addition to whatever other rights Tenant may have,
the right to be relieved of any obligations hereunder to commence or complete
Tenant's Work, if any, while said failure on the part of Landlord continues.
Tenant's obligation to complete Tenant's Work will be reinstated upon
deliverance by Landlord of a non-disturbance agreement meeting the preceding
conditions from Landlord's Mortgagee.
18.4 Upon written request by Landlord, Tenant agrees to subordinate this
Lease to the lien of any Mortgage held by Landlord's Mortgagee, provided
Landlord's Mortgagee shall agree to deliver a non-disturbance agreement meeting
the requirements described in Section 18.3. Tenant also agrees that any
Mortgagee may elect to have this Lease prior to any Mortgage whether this Lease
is dated prior to or subsequent to the date of said Mortgage.
ARTICLE 19
----------
ASSIGNMENTS, SUBLETTING, LEASEHOLD MORTGAGES
--------------------------------------------
19.1 Until Substantial Completion (as defined in Section 3.14), Tenant may
not directly, indirectly, voluntarily, involuntarily or by operation of law
convey, transfer, sell, assign, license, grant concessions, franchise, gift,
hypothecate, mortgage, pledge, encumber or hypothecate any interest in this
Lease or the Premises (each, a "Transfer") without the prior written consent of
Landlord in its sole discretion. If Tenant is a corporation, unincorporated
association, limited liability company or a partnership, the transfer of forty
nine percent (49%) or more of any stock or other ownership interest in such
corporation, association, limited liability company or partnership will be
30
deemed a Transfer within the meaning of and subject to the provisions of this
Article 19. A sublease of all or substantially all of the Premises to a single
Person or to Persons that are Affiliates shall be deemed a Transfer within the
meaning of and subject to the provisions of this Article 19. Notwithstanding the
foregoing, (i) the issuance of additional interests in the Tenant pursuant to
Section 8.2 of the limited liability company agreement of Tenant shall be
permitted without Landlord's consent and shall not constitute an Event of
Default under this Lease; (ii) the conveyance, transfer, sale, assignment, gift,
hypothecation, mortgage, pledge, encumbance or hypothecation of any interest in
Glimcher Properties Limited Partnership or Glimcher Realty Trust or their
respective successors or assigns, whether directly, indirectly, voluntarily,
involuntarily or by operation of law; and (iii) the assignment of Tenant's
interest in and to this Lease to a wholly-owned, directly or indirectly,
subsidiary of Tenant shall be permitted without Landlord's consent and shall not
constitute an Event of Default under this Lease. Following Substantial
Completion of the Project, this Lease shall be freely assignable by Tenant to
any Person.
19.2 In connection with an assignment by Tenant of this Lease, each
assignee of Tenant's interest in this Lease shall agree in writing for the
benefit of Landlord to assume, to be bound by, and to perform the terms,
covenants and conditions of this Lease to be done, kept and performed by Tenant,
including the payment of all amounts due or to become due under this Lease. One
executed copy of such written instrument shall be delivered to Landlord.
19.3 Subleases.
(a) At any time during the Term, Tenant may sublease all or portion of
the Premises or any improvements thereon to subtenants ("Subtenants"),
provided that until Substantial Completion of the Project, Tenant may not
sublease all or substantially all of the Premises to a single Person or to
Persons that are Affiliates.
(b) Landlord shall enter into a non-disturbance agreement with any
Subtenant upon request by such Subtenant or Tenant. The non-disturbance
agreement will provide that, notwithstanding the termination of this Lease,
the Subtenant sublease ("Sublease") will continue for the duration of its
term and any extensions thereof as a direct lease between Landlord and the
Subtenant; provided, however, the non-disturbance agreement will be
conditioned on the following: (i) Landlord will not be liable to any
Subtenant for any security deposits (unless the security deposit has been
delivered to Landlord) under its Sublease, nor will Landlord be bound by
any rental which is paid more than thirty (30) days in advance of the due
date under the terms of the Sublease; (ii) the Subtenant shall not be in
default under its Sublease on the date of the Lease termination; (iii) the
Subtenant shall attorn to Landlord; and (iv) Landlord will not be liable
for any act or omission of Tenant or be subject to any offsets or defenses
that any Subtenant may have against Tenant (but may not limit rights of
offset available to such Subtenant under the sublease in the event Landlord
fails to perform any obligation of Tenant that remains unperformed as of
the date Landlord takes possession of the Premises). In no event may Tenant
enter into any Sublease that has a term (including available extensions)
that extends beyond the Primary Term. Landlord will not be required to
enter into or negotiate a non-disturbance agreement with Tenant or any
Subtenant that is affiliated with Tenant or any Tenant Party. A copy of the
signed or proposed Sublease shall be delivered to Landlord concurrently
with any request for a non-disturbance agreement.
31
19.4 Each Transfer shall be by an instrument in writing, in a form
satisfactory to Landlord, and shall be signed by the Tenant and the Transferee
or Subtenant, in each instance, as the case may be. No Transfer will relieve
Tenant of any obligations under this Lease, nor will Landlord's consent to one
Transfer constitute a waiver of Landlord's approval rights with respect to
subsequent Transfers.
19.5 Tenant, without Landlord's consent, may subject the leasehold estate
under this Lease and the improvements thereon or any part thereof or interest
therein without restriction under a Mortgage or Mortgages, at any time and from
time to time, without limitation as to amount and on any terms Tenant may deem
desirable, and in connection therewith may assign the leasehold estate to the
Mortgagee. If more than one such Mortgage shall at the time be in effect, each
such Mortgage, at the time in effect, is herein called "Leasehold Mortgage";
provided, however, that the Mortgagee thereof shall have notified Landlord in
writing that it is a holder of such Leasehold Mortgage and of the name and
address to which all notices, requests, demands, consents, certificates and
other communications hereunder to it may be addressed; and such a Mortgagee of a
Leasehold Mortgage, having given such notice, is herein called "Leasehold
Mortgagee." Landlord and Tenant shall not agree between themselves to any
cancellation, surrender or modification of this Lease without the prior written
consent of any Leasehold Mortgagee, except as may otherwise be provided in the
Leasehold Mortgage or any related agreement. Landlord will give to any Leasehold
Mortgagee a copy of any notice or other communication from Landlord to Tenant
hereunder at the time of giving such notice or communication to Tenant and
notice of any rejection of this Lease by any Trustee in bankruptcy of Tenant.
Landlord shall not be entitled to share in the proceeds of any loan obtained as
a result of any financing or refinancing undertaken by Tenant from time to time
during the Primary Term of this Lease which is secured by a Leasehold Mortgage.
ARTICLE 20
----------
GRANTS OF EASEMENTS IN CERTAIN CIRCUMSTANCES; ZONING CHANGE
-----------------------------------------------------------
20.1 Tenant is hereby authorized and empowered, for and on behalf of
Landlord, and as attorney in fact of Landlord, to make, execute, acknowledge and
deliver instruments in the form usually used for the purpose in the State of
Arizona, granting a license or easement, with respect to the Premises, to any
person, and the successors and assigns of such person for the purpose of laying
mains, pipes, sewers, gas, electrical conduits, telephone, cable television and
other utilities in or upon the Premises, and to locate telephone or electrical
supply poles, wires, and supports in or upon the Premises, provided that such
license or easement expires by its terms on or before the termination of the
Lease. For all other licenses or easements with respect to the Premises,
Landlord's consent shall be required, which consent shall not be unreasonably
withheld, conditioned or delayed. Landlord shall also provide all reasonable
cooperation and assistance to Tenant in vacating or terminating any currently
existing easements or licenses with respect to the Premises that Tenant
reasonably desires to have vacated or terminated.
32
20.2 Tenant is hereby authorized and empowered for and on behalf of
Landlord and as the attorney in fact of Landlord, to execute on Landlord's
behalf a consent or petition for any zoning change variance or special exception
relating to the Premises where the same is required for the purpose of
authorizing the operation of the Premises or the improvements thereon for any
purpose not inconsistent with the terms of this Lease, or to join in any
petition for a release from restrictive covenants which interfere with the
operation or improvement of the Premises for such purpose.
ARTICLE 21
----------
ESTOPPEL CERTIFICATES
---------------------
21.1 Landlord and Tenant agree at any time and from time to time, upon not
less than ten (10) days' prior written request by either, to execute,
acknowledge and deliver to the party requesting the same a statement in writing
certifying that this Lease is unmodified and is in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), the Base Rent currently payable, and
the dates to which the Base Rent and other charges have been paid in advance, if
any, it being intended that any such statement delivered pursuant to this
Article may be relied upon by any prospective purchaser or Mortgagee of the
Premises or Tenant's interest in this Lease.
21.2 Such certificate by Tenant shall contain a statement that there are no
defaults by Landlord under this Lease, or, if there be any, a reasonably
detailed specification of all such defaults, and, such a certificate by Landlord
shall contain a statement that it has knowledge of no defaults by Tenant under
this Lease, or, if there be any of which it has knowledge, a reasonably detailed
specification of all such defaults.
ARTICLE 22
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
22.1 Landlord represents and warrants to Tenant, its successors and
assigns, as follows:
(a) The execution and delivery of this Lease by Landlord, the
execution and delivery of every other document and instrument delivered pursuant
hereto by or on behalf of Landlord, and the consummation of the transactions
contemplated hereby have been duly authorized and validly executed and delivered
by Landlord, and will not (i) constitute or result in the breach of or default
under any oral or written agreement to which Landlord is a party or which
affects the Premises; (ii) constitute or result in a violation of any order,
decree or injunction with respect to which the Landlord and/or the Premises is
bound; (iii) cause or entitle any party to have a right to accelerate or declare
a default under any oral or written agreement to which Landlord is a party or
which affects the Premises; and/or (iv) to Landlord's knowledge, violate any
provision of any municipal, state or federal law, statutory or otherwise, to
which Landlord is or may be subject.
33
(b) This Lease and each document to be delivered hereunder, when duly
executed and delivered, will be valid, legal and binding obligations of Landlord
enforceable in accordance with their respective terms.
(c) To Landlord's knowledge, Landlord is in full compliance with all
requirements of all governmental authorities with respect to the Premises.
(d) Landlord has full power, right, and authority, and is duly
authorized to enter into this Lease, to perform each of the acts herein provided
and to execute and deliver all documents required hereunder.
(e) There is no tenant or any other occupant of the Premises or any
other Person having any right or claim to possession or use of the Premises
other than Dial. Except as set forth in the Dial Lease, possession of the
Premises is being delivered to Tenant by Landlord free of rights or claims of
any tenants, occupants or parties in possession.
(f) There is no litigation, arbitration, investigation, proceeding or
administrative action or examination, claim or demand, pending or, to Landlord's
knowledge, threatened, or any other condition which relates to or affects the
Premises or which would impair or otherwise adversely affect this Lease,
Landlord's performance hereunder and/or Tenant's intended use of the Premises or
which could result in a lien, charge, encumbrance or judgment against all or any
part of or any interest in the Premises. No attachments, execution proceedings,
liens, assignments or insolvency proceedings are pending or, to Landlord's
knowledge, threatened against Landlord or the Premises or contemplated by
Landlord.
(g) Other than the Dial Lease, there are no other contracts,
agreements or understandings, verbal or written, for the lease, sale or transfer
of any portion of the Premises. Between the Effective Date and the Rent
Commencement Date hereunder, no part of the Premises will be alienated,
encumbered or transferred except for the granting of a Mortgage to Landlord's
Mortgagee.
(h) Landlord has not made and has no knowledge of any commitments to
any governmental unit or agency, utility company, authority, school board,
church or other religious body, or to any other Person relating to the Premises
which would impose any obligations upon Tenant to make any contributions of
money or land or to install or maintain any improvements.
(i) Between the Effective Date and the Rental Commencement Date,
Landlord shall:
(i) not create, incur, or suffer to exist any Mortgage, lien,
pledge, or other encumbrance in any way affecting the Premises which is not
affecting the Premises as of the Effective Date, excepting therefrom the
Mortgage of Landlord's Mortgagee, if any;
(ii) not commit any waste or nuisance upon the Premises; and
(iii) not, without first obtaining the written consent of Tenant,
enter into, amend or otherwise modify any contracts or agreements pertaining to
the Premises.
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(j) Except as may be disclosed in the environmental assessment
provided by Landlord to Tenant, Landlord has no knowledge and has received no
notice that the Premises or other real estate in close proximity thereto (a) are
not in compliance with all federal, state and local laws, ordinances,
regulations, orders and directives pertaining to Hazardous or Toxic Materials on
or about the Premises or any portions thereof, including, without limitation,
those relating to soil and ground water conditions; (b) have not been used as a
land fill or waste dump (whether for Hazardous or Toxic Materials or otherwise);
and (c) have any underground storage tanks or bins buried within or underground
in any portion of the Premises or other premises adjacent thereto. For purposes
hereof, the term "Hazardous or Toxic Materials" shall mean oil or petrochemical
products, PCBs, asbestos, urea formaldehyde, flammable explosives, radioactive
materials, hazardous wastes, toxic substances or related materials, including,
without limitation, any substances defined from time to time as or included in
the definition of "hazardous substances," "hazardous materials," or "toxic
substances" under any applicable federal, state or local laws or regulations.
22.2 Tenant represents and warrants to Landlord, its successors and
assigns, as follows:
(a) The execution and delivery of this Lease by Tenant, the execution
and delivery of every other document and instrument delivered pursuant hereto by
or on behalf of Tenant, and the consummation of the transactions contemplated
hereby have been duly authorized and validly executed and delivered by Tenant,
and will not (i) constitute or result in the breach of or default under any oral
or written agreement to which Tenant is a party; (ii) constitute or result in a
violation of any order, decree or injunction with respect to which the Tenant is
bound; (iii) cause or entitle any party to have a right to accelerate or declare
a default under any oral or written agreement to which Tenant is a party; and/or
(iv) to Tenant's knowledge, violate any provision of any municipal, state or
federal law, statutory or otherwise, to which Tenant is or may be subject.
(b) This Lease and each document to be delivered hereunder, when duly
executed and delivered, will be valid, legal and binding obligations of Tenant,
enforceable in accordance with their respective terms.
(c) TENANT ACKNOWLEDGES, REPRESENTS AND WARRANTS TO LANDLORD THAT
EXCEPT AS OTHERWISE STATED OR PROVIDED IN THIS LEASE (1) TENANT HAS INSPECTED
THE PREMISES AND ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS, WITH ALL FAULTS"
CONDITION BASED UPON TENANT'S OWN INVESTIGATION AND INSPECTION THEREOF; (2) THE
BUILDINGS AND IMPROVEMENTS COMPRISING THE PREMISES WILL BE DEMOLISHED AS
PROVIDED IN SECTION 6.1 AND NEITHER LANDLORD NOR ANYONE ACTING ON LANDLORD'S
BEHALF HAS MADE ANY WARRANTY, REPRESENTATION, COVENANT OR AGREEMENT WITH RESPECT
TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PREMISES;
(3) NO REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER,
REMODEL OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD OR ANYONE ACTING ON
LANDLORD'S BEHALF, EXCEPT AS TO DEMOLITION OF THE EXISTING IMPROVEMENTS AS NOTED
WITHIN SECTION 6.1; (4) THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED,
35
IMPLIED OR STATUTORY, THAT APPLY TO ANY PROPERTY BEYOND THE DESCRIPTION OF THE
PREMISES, AND; (5) NEITHER LANDLORD NOR ANYONE ACTING ON BEHALF OF LANDLORD HAS
MADE ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WRITTEN OR ORAL,
STATUTORY OR OTHERWISE CONCERNING THE PREMISES, INCLUDING, BUT NOT LIMITED TO,
THE FOLLOWING: (i) THE CONDITION OF TITLE TO THE PREMISES; (ii) THE NATURE,
PHYSICAL CONDITION OR OTHER ASPECT OF THE PREMISES; (iii) THE INCOME OR EXPENSE
AS GENERATED, PAID OR INCURRED IN CONNECTION WITH THE PREMISES; (iv) THE
ACCURACY OF ANY STATEMENTS, CALCULATIONS OR CONDITIONS STATED OR SET FORTH IN
ANY MATERIALS DELIVERED TO TENANT BY ANY PERSON OTHER THAN LANDLORD OR
LANDLORD'S AGENTS OR AFFILIATES OR OBTAINED BY TENANT FROM ANY PERSON OTHER THAN
LANDLORD OR LANDLORD'S AGENTS OR AFFILIATES IN CONNECTION WITH TENANT'S ENTERING
INTO THIS LEASE (COLLECTIVELY, THE "DILIGENCE MATERIALS"); (v) THE DIMENSIONS,
SIZE OR SQUARE FOOTAGE OF THE PREMISES; (vi) THE ABILITY OF TENANT TO OBTAIN ANY
AND ALL NECESSARY ZONING, VARIANCES, GOVERNMENTAL APPROVALS OR PERMITS FOR
TENANT'S INTENDED USE AND DEVELOPMENT OF THE PREMISES; (vii) THE STATUS OF THE
CURRENT ZONING OR GOVERNMENTAL APPROVALS OF THE PREMISES; (viii) THE
AVAILABILITY OF ANY UTILITIES; (ix) THE EXISTENCE OF HAZARDOUS SUBSTANCES IN,
ON, ABOUT, NEAR, UNDER OR AFFECTING THE PREMISES; OR (x) THE COMPLIANCE OF THE
PREMISES WITH ANY ENVIRONMENTAL LAWS OR ANY OTHER FEDERAL, STATE OR LOCAL LAWS,
ORDINANCES, STATUTES, RULES OR REGULATIONS.
ARTICLE 23
----------
INVALIDITY OF PARTICULAR PROVISIONS
-----------------------------------
If any term or provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and may be enforced to the fullest extent permitted by law.
ARTICLE 24
----------
ARBITRATION AND APPRAISAL
-------------------------
24.1 (a) If any provision of this Lease expressly submits a dispute between
the parties to arbitration, the dispute shall be determined by arbitration in
the City of Scottsdale, Arizona, as follows: Either party shall notify the other
party of its desire to arbitrate the matter in dispute and shall state in said
notice the name and address of a qualified person, having no business,
professional or personal relationship of any kind with either party, to act as
arbitrator hereunder. Within thirty (30) days after receipt of such notice the
other party shall give notice to the sender of the first mentioned notice,
stating the name and address of a qualified person having no business,
professional or personal relationship of any kind with either party, to act as
36
arbitrator hereunder. The arbitrators thus specified shall be experienced in the
field of the matter in dispute. Before proceeding to determine the matter in
dispute, the arbitrators so appointed shall subscribe and swear to an oath
fairly and impartially to determine such matter. If within thirty (30) days
following the appointment of the latter of said arbitrators said two (2)
arbitrators shall be unable to agree in respect of the matter in dispute, the
said arbitrators shall appoint, by instrument in writing, as third arbitrator, a
similarly qualified person having no business, professional or personal
relationship of any kind with either party, who, upon taking a similar oath
shall proceed with the two (2) arbitrators first appointed to determine the
matter in dispute. The written decision of any two (2) of the arbitrators so
appointed shall be binding and conclusive upon the parties hereto. If, after
notice of the appointment of an arbitrator the other party shall fail, within
the above specified period of thirty (30) days to appoint an arbitrator, such
appointment of a similarly qualified arbitrator may be made upon application
without notice by the person who shall have appointed an arbitrator, by the
American Arbitration Association (or, if such association shall not then be in
existence, such other organization, if any, as shall then have become the
successor of said association; and if there shall be no successor, then in
accordance with the then prevailing provisions of the laws of the State of
Arizona relating to arbitration). If the two (2) arbitrators aforesaid shall be
unable to agree within thirty (30) days following the appointment of the latter
of said arbitrators upon the matter in dispute and shall fail to appoint in
writing a third arbitrator within thirty (30) days thereafter, the necessary
arbitrator shall be appointed by said association, or if any arbitrator
appointed as aforesaid by either of the parties, by said association, or by the
other two (2) arbitrators so appointed shall die, be disqualified or
incapacitated or shall fail to refuse to act, before such matter shall have been
determined, the necessary arbitrator shall be promptly appointed by the person
or persons or association who or which appointed the arbitrator who shall have
died, become disqualified, incapacitated or who shall have failed or refused to
act, as aforesaid.
(b) Landlord and Tenant shall each pay one half (1/2) the fees of the
persons acting as arbitrators hereunder and the general expenses of such
arbitration.
(c) Landlord, Tenant, and any Leasehold Mortgagee shall each have the
right to appear and be represented by counsel before said arbitrators and to
submit such data and memoranda and present such oral testimony in support of
their respective positions in the matter in dispute as each may deem necessary
or appropriate in the circumstances.
24.2 Unless otherwise expressly provided, any appraisals provided for in
this Lease shall be conducted in the City of Scottsdale, Arizona, as follows:
(a) Landlord shall at Landlord's cost cause an appraisal to be made
and shall submit the same to the Tenant for approval. If the Tenant approves the
appraisal, it shall be binding upon the Landlord and Tenant. If the Tenant does
not approve the appraisal, the Tenant shall at Tenant's cost cause an appraisal
to be made and shall submit the same to the Landlord for approval. If the
Landlord approves the appraisal it shall be binding upon the Landlord and
Tenant. If neither appraisal is approved, the two appraisers shall select a
third appraiser who shall make an appraisal and the average of the three
appraisals shall be binding upon Landlord and Tenant.
37
(b) Each such appraiser shall be a certified Member of the American
Institute of Real Estate Appraisers (or any successor of such institute, or if
such institute or successor shall no longer be in existence, a recognized
national association or institute of appraisers), and shall have not less than
fifteen (15) years active experience as a real estate appraiser of commercial
and retail properties in the Scottsdale, Arizona area.
(c) Landlord and Tenant shall each pay one half (1/2) the cost of any
third appraiser selected in accordance with this Section 24.2.
ARTICLE 25
----------
SURRENDER OF PREMISES UPON TERMINATION OF LEASE
-----------------------------------------------
Tenant covenants and agrees that, upon the termination of this Lease by
lapse of time or otherwise, it will surrender, yield up, and deliver the
Premises and all improvements thereon, except such operating equipment, trade
fixtures and signs (whether or not such operating equipment, trade fixtures or
signs are permanently affixed) as Tenant shall elect to remove, in good and
clean condition, except the effects of ordinary wear and tear, depreciation
arising from lapse of time, or damage by fire or other casualty, the elements,
acts of God, or damage without fault of Tenant. Tenant shall repair any damage
to the Premises caused by Tenant's removal of such operating equipment, fixtures
and signs. Upon the termination of this Lease by lapse of time, Tenant shall
have no further interest in the Premises and any holding over shall be an
unlawful detainer and Tenant shall pay during such period a sum equal to one
hundred fifty percent (150%) of Base Rent for such period.
ARTICLE 26
----------
RIGHT TO CURE DEFAULTS
----------------------
26.1 If Tenant fails to perform any of the covenants or agreements in this
Lease on the part of Tenant to be performed, Landlord may, at its election, in
addition to all other remedies now or hereafter afforded or provided by law,
after thirty (30) days written notice to Tenant and without Tenant commencing
and thereafter diligently prosecuting a cure of such failure within such period
of time, make good any such default or perform such covenants or agreements for
or on behalf of Tenant, and any amount or amounts which Landlord shall advance
on that behalf shall be repaid by Tenant, upon demand, with interest thereon at
the rate specified in Section 28.3 hereof from the date of such advance to the
repayment thereof in full.
26.2 If Landlord fails to perform any of the covenants or agreements in
this Lease on the part of Landlord to be performed and such failure shall
subject Tenant or any of its customers or employees to any risk of personal or
property damage, Tenant may, at its election, in addition to all other remedies
now or hereafter afforded or provided by law, after thirty (30) days written
notice to Landlord and without Landlord commencing and thereafter diligently
prosecuting a cure of such failure within such period of time, make good any
such default or perform such covenants or agreements for or on behalf of
Landlord, and any amount or amounts which Tenant shall advance on that behalf
shall be repaid by Landlord, upon demand, with interest thereon at the rate
specified in Section 28.3 hereof from the date of such advance to the repayment
38
thereof in full; and, if Landlord shall not repay any such amount or amounts
upon demand, Tenant may deduct the same, together with interest thereon as
aforesaid, from any installments of rent or other sums accruing under this
Lease.
ARTICLE 27
----------
PROVISIONS FOR NOTICE
---------------------
Any and all notices, demands or other communication required or desired to
be given hereunder by any party shall be in writing and shall be validly given
or made to another party if served either personally or is sent by Federal
Express or some other "express mail" service that can verify receipt or refusal
of receipt of delivery or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such notice, demand,
or other communication be served personally, service shall be conclusively
deemed made at the time of such personal service. If such notice, demand, or
other communication be given by express mail, it shall be deemed given upon
receipt or refusal of receipt and if given by mail, such shall be conclusively
deemed given three (3) business days after the deposit thereof in the United
States mail addressed to the party to whom such notice, demand, or other
communication is to be given at the Notice Addresses set forth in Article 1
hereof, provided that any party hereto may change its Notice Address provided by
a written notice given in the manner aforesaid to the other party or parties
hereto.
ARTICLE 28
----------
MISCELLANEOUS
-------------
28.1 If Tenant or any subtenant makes application to any governmental
authority having jurisdiction for a permit or permits for the sale and/or
serving of alcoholic beverages upon the Premises, Landlord agrees that it will
interpose no objection to the issuance of any such permits, and will cooperate
with the efforts of Tenant or its subtenants in obtaining such permits in such
manner as Tenant or its subtenants may reasonably request.
28.2 Subject to the provisions of Articles 19, 20 and 21 hereof, the terms,
conditions, covenants, provisions and agreements herein contained shall be
binding upon and inure to the benefit of Landlord, his successors and assigns,
and Tenant, its successors and assigns.
28.3 Any and all sums due from one party to another under the terms of this
Lease and not paid within ten (10) days of the date due shall accrue interest,
compounded monthly, from such due date until paid in full at the lesser of the
highest rate permitted by applicable law or the Prime Rate on such due date plus
four percent (4%) per year (such lesser rate, "Default Interest").
Notwithstanding any provision contained herein to the contrary, if any interest
rate specified in this Lease is higher than the rate then permitted by law, such
interest rate specified herein will automatically be adjusted from time to time
to the maximum rate permitted by law.
28.4 The term "Landlord" as used in this Lease shall refer to any party
having an ownership interest in the land demised by this Lease only so long as
such interest shall continue, and to such of the subsequent owners and
successors in interest in Landlord's interest in the land only to the extent of
39
their respective interests, as and when they shall acquire the same, and only so
long as they shall retain such interest. The liability of Landlord arising by
reason of the execution hereof shall not operate or be construed as personal to
said Landlord except to the extent of Landlord's interest in the land and this
Lease, the liability of Landlord shall be limited to the extent of Landlord's
interest in the land and this Lease, and no other assets of Landlord shall be
affected by reason of any liability which Landlord may have to Tenant or to any
other person by reason of the execution of this Lease, or acquisition of
Tenant's interest in any subleases of all or any portion of the Premises, and,
in addition, with respect to any obligation to hold and apply insurance or other
moneys hereunder, any such moneys received by it to the extent not so applied,
and any judgment, order, decree or other award in favor of Tenant shall be
collectible only out of Landlord's interest in the land, this Lease, the rents,
issues and profits therefrom and such insurance or other moneys.
28.5 This Lease may be modified only by written agreement signed by
Landlord and Tenant with the same formalities attendant as upon the execution of
this Lease, it being the express intention of the parties hereto that no
provision, term or condition of this Lease may be amended or varied, in any way,
by an oral understanding or by any document not executed in accordance with this
Section 28.5.
28.6 This Agreement may be executed in multiple counterparts, each of
which, once so executed and delivered, shall be deemed an original, and all of
which shall together constitute one and the same agreement, and shall be binding
on the signatories; the signature of any party hereto to any counterpart shall
be deemed a signature to, and may be appended to, any other counterpart.
28.7 The parties hereto shall execute, for recording purposes, a Memorandum
of Lease in conformity with the law and practice of the State of Arizona, and
the same shall be placed of record at Tenant's expense. If requested by
Landlord, Tenant shall, upon termination of this Lease as provided herein,
execute and deliver to Landlord an appropriate release, in form proper for
recording, of Tenant's interest in the Premises.
28.8 This Lease shall be governed by and interpreted in accordance with the
laws of the State of Arizona.
28.9 In the event either Landlord or Tenant brings any action or proceeding
for damages for any alleged breach of any provision of this Lease, to recover
rents, or to enforce, protect or establish any right or remedy of either party,
the prevailing party will be entitled to recover as part of, or incident to,
such action or proceeding, all reasonable attorneys' fees, expert witness fees
and other costs and expenses incurred in the preparation and processing of such
action or proceedings.
[Signature page follows. No further text on this page.]
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IN WITNESS WHEREOF, the parties hereto have sealed and executed these
presents as of the Effective Date.
LANDLORD: TENANT:
SUCIA SCOTTSDALE, LLC, a Delaware KIERLAND CROSSING LLC, a Delaware
limited liability company limited liability company
By: Sucia Scottsdale II, LLC, a Delaware By: GLIMCHER KIERLAND CROSSING, a
limited liability company, its sole Delaware limited liability company,
member its Managing Member
By: Sucia Holdings, LLC, a Washington
limited liability company, its sole By: GLIMCHER PROPERTIES LIMITED
member PARTNERSHIP, a Delaware limited
By: Sucia Manager, LLC, a Washington partnership, its Sole Member
limited liability company, its Manager
By: Vanguard City Home, LLC, an Arizona By: GLIMCHER PROPERTIES CORPORATION, a
limited liability company, its Manager Delaware corporation, its General
By: ACC Homes, Inc., an Arizona corporation, Partner
its Manager
By: By:
---------------------------------------- ----------------------------------
Name: A. Xxxxxxxxxxx Xxxxxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: President Its: Executive Vice President
XX XXXXXXXX CROSSING, LLC, a Delaware
limited liability company
By: Vanguard City Home, LLC, an Arizona
limited liability company, its Manager
By: ACC Homes, Inc., an Arizona
corporation, its Manager
By:
-----------------------------------
Name: A. Xxxxxxxxxxx Xxxxxxxxxxx
Title: President
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EXHIBIT A-1
Premises
--------
The following legal description and any references contained therein are based
upon that certain ALTA/ACSM Survey titled Dial Center, performed by DEI
Professional Services, LLC, dated and signed on June 19, 2006 by Xxxxx X. Xxxx
R.L.S.# 33315.
A portion of the northwest quarter of Section 11 and the southwest quarter of
Section 2, Township 3 North, Range 4 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona being described as follows:
COMMENCING at a brass cap in hand hole found at the northwest corner of said
Section 11, also being the point of intersection of the monumented centerlines
of Xxxxxxxx-Xxxxxx Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the monumented centerlines of Scottsdale Road and
Xxxxxxxx Road bears South 01(degree)08'00" West, 1100.20 feet;
Thence South 89(degree)40'34" East, along the monumented centerline of
Xxxxxxxx-Xxxxxx Road, a distance of 65.07 feet to brass cap in hand hole and a
point on a non-tangent curve, the radius point of which bears North
00(degree)19'08" East, 2,000.00 feet;
Thence easterly, along the arc of said curve to the left and said monumented
centerline of Xxxxxxxx-Xxxxxx Loop, through a central angle of 16(degree)55'21",
an arc distance of 590.71 feet;
Thence South l6(degree)36'13" East, 65.00 feet to a point on a line lying 65.00
feet south of and parallel to said monumented centerline of Xxxxxxxx-Xxxxxx Loop
and the TRUE POINT OF BEGINNING;
Thence continuing South 16(degree)36'13" East, 40.25 feet to a point of
curvature having a radius of 150.00 feet;
Thence southerly along said curve to the right through a central angle of
17(degree)44'55", an arc distance of 46.47 feet;
Thence South 01(degree)08'42" West, 1000.15 feet to a point on a line lying
50.00 feet north of and parallel to the monumented centerline of Xxxxxxxx Road;
Thence North 88(degree)51'18" West, along said line lying 50.00 feet north of
and parallel to the monumented centerline of Xxxxxxxx Road, 594.92 feet to a
point of curvature having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve to the right, through a
central angle of 89(degree)59'18", an arc distance of 39.26 feet to a point on a
line lying 65.00 feet east of and parallel to the monumented centerline of
Scottsdale Road;
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Thence North 01(degree)08'00" East, along said line lying 65.00 feet east of and
parallel to the monumented centerline of Scottsdale Road, 941.49 feet to a point
of curvature having a radius of 20.00 feet;
Thence northeasterly, along the arc of said curve to the right, through a
central angle of 88(degree)40'15", an arc distance of 30.95 feet to a point on a
line lying 65.00 feet south of and parallel to the monumented centerline of
Xxxxxxxx-Xxxxxx Loop and a point of reverse curvature having a radius of
2,065.00 feet;
Thence easterly, along the arc of said curve to the left and said line lying
65.00 feet south of and parallel to the monumented centerline of Xxxxxxxx-Xxxxxx
Loop, through a central angle of 16(degree)24'28", an arc distance of 591.35
feet to the TRUE POINT OF BEGINNING.
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EXHIBIT A-2
Complete Site
-------------
See Exhibits A-1 and A-3, collectively.
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EXHIBIT A-3
Landlord's Retained Land
------------------------
The following legal description and any references contained therein are based
upon that certain ALTA/ACSM Survey titled Dial Center, performed by DEI
Professional Services, LLC, dated and signed on June 19, 2006 by Xxxxx X. Xxxx,
R.L.S.# 33315.
Parcel 2:
A portion of the northwest quarter of Section 11 and the southwest quarter of
Section 2, Township 3 North, Range 4 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona being described as follows:
COMMENCING at a brass cap in hand hole found at the northwest corner of said
Section 11, also being the point of intersection of the monumented centerlines
of Xxxxxxxx-Xxxxxx Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the monumented centerlines of Scottsdale Road and
Xxxxxxxx Road bears South 01(degree)08'00" West, 1100.20 feet; thence South
89(degree)40'34" East, along the monumented centerline of Xxxxxxxx-Xxxxxx Road,
65.07 feet to brass cap in hand hole and a point on a non-tangent curve, the
radius point of which bears North 00(degree)19'08" East, 2,000.00 feet; thence
easterly, along the arc of said curve to the left and said monumented centerline
of Xxxxxxxx-Xxxxxx Loop, through a central angle of 16(degree)55'21", an arc
distance of 590.71 feet; thence South 16(degree)36'13" East, 65.00 feet to a
point on a line lying 65.00 feet south of and parallel to said monumented
centerline of Xxxxxxxx-Xxxxxx Loop and the TRUE POINT OF BEGINNING, said point
also being the beginning of a curve to the left, from which the radius point
bears North 16(degree)36'13" West, 2,065.00 feet;
Thence easterly along the arc of said curve to the left and said line lying
65.00 feet south of and parallel to the monumented centerline of Xxxxxxxx-Xxxxxx
Loop, through a central angle of 09(degree)03'32", an arc distance of 326.49
feet to a point of reverse curvature having a radius of 20.00 feet;
Thence easterly, along the arc of said curve to the right, through a central
angle of 93(degree)29'01", an arc distance of 32.63 feet to a point on a line
lying 30.00 feet west of and parallel to the monumented centerline of 00xx
Xxxxxx also being a point of compound curvature, having a radius of 370.00 feet;
Thence southerly, along the arc of said curve lying 30.00 feet west of and
parallel to the monumented centerline of 73rd Street, through a central angle of
24(degree)00'27", an arc distance of 155.03 feet;
Thence South 01(degree)08'27" West, along said line lying 30.00 feet west of and
parallel to the monumented centerline of 73rd Street, 242.03 feet;
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Thence North 88(degree)51'18" West, 340.01 feet;
Thence North 01(degree)08'42" East, 195.17 feet to a point of curvature having a
radius of 150.00 feet;
Thence northerly, along the arc of said curve to the left, through a central
angle of 17(degree)44'55", an arc distance of 46.47 feet;
Thence North 16(degree)36'13" West, a distance of 40.25 feet to the TRUE POINT
OF BEGINNING.
Parcel 3:
A portion of the northwest quarter of Section 11, Township 3 North, Range 4 East
of the Gila and Salt River Base and Meridian, Maricopa County, Arizona being
described as follows:
COMMENCING at a brass cap in hand hole found at the northwest corner of said
Section 11, also being the point of intersection of the monumented certerlines
of Xxxxxxxx-Xxxxxx Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the monumented centerlines of Scottsdale Road and
Xxxxxxxx Road bears South 01(degree)08'00" West, 1100.20 feet;
Thence South 89(degree)40'34" East, along the monumented centerline of
Xxxxxxxx-Xxxxxx Road, 65.07 feet to brass cap in hand hole and a point on a
non-tangent curve, the radius point of which bears North 00(degree)19'08" East,
2,000.00 feet;
Thence easterly, along the arc of said curve to the left and said monumented
centerline of Xxxxxxxx-Xxxxxx Loop, through a central angle of 16(degree)55'21",
an arc distance of 590.71 feet;
Thence South 16(degree)36'13" East, a distance of 65.00 feet to a point on a
line lying 65.00 feet south of and parallel to said monumented centerline of
Xxxxxxxx-Xxxxxx Loop;
Thence continuing South 16(degree)36'13" East, 40.25 feet to a point of
curvature having a radius of 150.00 feet;
Thence southerly along said curve to the right through a central angle of
17(degree)44'55", an arc distance of 46.47 feet;
Thence South 01(degree)08'42" West, 195.17 feet to the TRUE POINT OF BEGINNING;
Thence South 88(degree)51'18" East, 340.01 feet to a point on a line lying 30.00
feet west of and parallel to the monumented centerline of 00xx Xxxxxx;
Thence South 01(degree)08'27" West, along said line lying 30.00 feet west of and
parallel to the monumented centerline of 73rd Street, 556.98 feet;
Thence North 88(degree)51'18" West, 340.05 feet;
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Thence North 01(degree)08'42" East, 556.98 feet to the TRUE POINT OF BEGINNING.
Parcel 4:
A portion of the northwest quarter of Section 11, Township 3 North, Range 4 East
of the Gila and Salt River Base and Meridian, Maricopa County, Arizona being
described as follows:
COMMENCING at a brass cap in hand hole found at the northwest corner of said
Section 11, also being the point of intersection of the monumented centerlines
of Xxxxxxxx-Xxxxxx Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the monumented centerlines of Scottsdale Road and
Xxxxxxxx Road bears South 01(degree)08'00" West, 1100.20 feet;
Thence South 89(degree)40'34" East, along the monumented centerline of
Xxxxxxxx-Xxxxxx Road, 65.07 feet to brass cap in hand hole and a point on a
non-tangent curve, the radius point of which bears North 00(degree)19'08" East,
2,000.00 feet;
Thence easterly, along the arc of said curve to the left and said monumented
centerline of Xxxxxxxx-Xxxxxx Loop, through a central angle of 16(degree)55'21",
an arc distance of 590.71 feet;
Thence South 16(degree)36'13" East, a distance of 65.00 feet to a point on a
line lying 65.00 feet south of and parallel to said monumented centerline of
Xxxxxxxx-Xxxxxx Loop;
Thence continuing South 16(degree)36'13" East, 40.25 feet to a point of
curvature having a radius of 150.00 feet;
Thence southerly along said curve to the right through a central angle of
17(degree)44'55", an arc distance of 46.47 feet;
Thence South 01(degree)08'42" West, 752.15 feet to the TRUE POINT OF BEGINNING;
Thence South 88(degree)51'18" East, 340.05 feet to a point on a line lying 30.00
feet west of and parallel to the monumented centerline of 00xx Xxxxxx;
Thence South 01(degree)08'27" West, along said line lying 30.00 feet west of and
parallel to the monumented centerline of 73rd Street, 223.00 feet to a point of
curvature having a radius of 25.00 feet;
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Thence westerly, along the arc of said curve to the right, through a central
angle of 90(degree)00'15", an arc distance of 39.27 feet to a point on a line
lying 50.00 feet north of and parallel to the monumented centerline of Xxxxxxxx
Road;
Thence North 88(degree)51'18" West, along said line lying 50.00 feet north of
and parallel to the monumented centerline of Xxxxxxxx Road, 315.07 feet;
Thence North 01(degree)08'42" East, 248.00 feet to the TRUE POINT OF BEGINNING.
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