EXHIBIT 10.30
RETAIL LEASE
THIS RETAIL LEASE (the "Lease") is made this 1st day of July,
1998 by and between PINNACLE CITADEL LLC., an Arizona limited
liability company ("Landlord"), and GIANT INDUSTRIES ARIZONA, INC.,
an Arizona limited liability company ("Tenant").
Landlord hereby leases to Tenant and Tenant leases from
Landlord for the term and upon the conditions and agreements set
forth in this Lease a portion of the real property described on
Exhibit A attached hereto known as the Inn at the Citadel, consisting
of approximately 8,176 square feet of space consisting of eleven
suites on the second floor and an office/lobby suite on the first
floor together with any or all additional space used in connection
with Tenant's business (the "Premises") in The Citadel (the "Center")
along with two (2) covered parking spaces numbered 9 and 10 each
located in the area cross-hatched on Exhibit B. The address of the
premises is 0000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000.
1. Term and Possession
(a) The term (the Term ) of this Lease shall commence on
the earlier of (i) the date possession is tendered by written notice
to Tenant or (ii) the date on which the Tenant shall first use or
occupy any part of the premises or (iii) the date a temporary
certificate of occupancy for the Premises is issued by the City of
Scottsdale (the "Commencement Date") and shall expire on June 30,
2003. The Tenant's obligation to pay Rent (defined in Articles 2(d)
below) shall begin on the Commencement Date (the Rent Start Date").
The anticipated Commencement Date is July 1, 1998. Upon request of
either party after the term has commenced, Landlord and Tenant shall
jointly execute a memorandum confirming the Commencement Date.
(b) Upon the expiration or earlier termination of this
Lease or upon the termination of Tenant's right of possession,
whether by lapse of time or otherwise, Tenant shall at once surrender
possession of the Premises to Landlord and remove all of Tenant's
property as provided in Article 10.
(c) Tenant shall have no right to hold over after the
expiration of this Lease without Landlord's prior written consent.
If, with Landlord's prior written consent, Tenant holds over after
the expiration of this Lease, Tenant shall become a tenant from month
to month only, upon all of the terms of this Lease except that
Article 1(a) shall not apply and the amount of the Minimum Annual
Rent (defined at Article 2(a) below) shall be increased to an amount
equal to 125% of the Minimum Annual Rent in effect immediately prior
to the expiration.
(d) Provided Tenant has not been and/or Landlord has not
deemed Tenant in default under this Lease, Tenant shall have the
option, exercisable by written notice given to the Landlord at least
180 days prior to the expiration of the then current Term, to extend
this Lease by one (1) successive period of five (5) years. All the
terms and conditions of this Lease, including, without limitation,
Article 2(b), shall remain in full force and effect during the
extended Term. As used herein, the word Term shall hereafter mean
the Term as it may have been extended pursuant to this Article 1(d).
2. Rent
(a) Minimum Rent. Tenant shall pay to Landlord during the
Term at the office of Landlord, 00000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, or at such other place as Landlord may
designate, without notice, demand, deduction or set-off, Minimum
Annual Rent in the amount of $163,520.00 per annum, subject to
adjustment as provided in Article 2(b), in equal monthly installments
in advance on the first day of each calendar month with applicable
transaction privilege or other similar sales tax. In addition,
Tenant shall pay the amount of $40.00 per month for each of the two
(2) reserved covered parking spaces. In the event the Rent Start
Date does not occur on the first day of a calendar month, Tenant
shall pay Rent on the Rent Start Date for the fractional month on a
pro rata 30-day month basis.
(b) Adjustments. The Minimum Annual Rent shall be
adjusted upwards as of each one (1) year anniversary of the
Commencement Date (the Adjustment Date ) as follows:
(i) Landlord shall ascertain the Consumer Price
Index for All Urban Consumers - U.S. Cities Average - All Items (the
"CPI") published by the United States Department of Labor, Bureau of
Labor Statistics (1982-84 = 100) for the third full calendar month
prior to the Commencement Date for the first year adjustment and the
third full calendar month prior to the previous Adjustment Date for
all following adjustments (the "Base Index") and for the third full
calendar month prior to the Adjustment Date (the "Comparison Index").
(ii) The Minimum Annual Rent commencing as of each
Adjustment Date shall be equal to the Minimum Annual Rent in effect
immediately preceding each Adjustment Date (the "Effective Minimum
Annual Rent") times a fraction, the numerator of which is the
Comparison Index associated with that Adjustment Date and the
denominator of which is the Base Index, as illustrated in the
following formula for the first (1st) Adjustment Date:
Adjusted Minimum = Effective Minimum x Comparison Index
Annual Rent Annual Rent Base Index
(iii) Notwithstanding the foregoing, in no event
shall the Minimum Annual Rent be adjusted downwards. When the Minimum
Annual Rent payable as of each Adjustment Date is determined,
Landlord shall promptly give Tenant written notice of such adjusted
Minimum Annual Rent and the manner in which it was computed. The
Minimum Annual Rent as so adjusted from time to time shall be the
"Minimum Annual Rent" for all purposes under this Lease.
(iv) If at any time the CPI is no longer published
or its manner of calculation is materially changed, Landlord may
substitute a substitute index, reconciled to the month three (3)
months prior to the Commencement Date, as reasonably reflects changes
in the purchasing power of the dollar.
(c) Nature of Payments. All sums required to be paid by
Tenant under this Lease, whether or not so designated, including,
without limitation, Minimum Annual Rent and Tenant s Pro Rata Share
of Operating Costs are Rent and shall be paid without notice,
demand, deduction, or set-off.
(d) Late Charges and Interest. Any amount due from Tenant
to Landlord which is not paid when due shall bear interest at three
percent in excess of the prime rate as established from time to time
by the Bank of America Arizona (or, if such bank ceases to exist,
such other comparable financial institution as reasonably determined
by Landlord) from the due date until paid, but the payment of such
interest shall not excuse or cure any default by Tenant under this
Lease. In addition, if any Rent or other payment is not paid within
five days of its due date, then Tenant shall also pay to Landlord a
late charge equal to ten percent of the amount of such payment.
3. Use
(a) Tenant shall continuously and uninterruptedly
operate, use and occupy the Premises as office suites or as an inn
along with a 1st floor office/lobby for the inn and for no other
purpose whatsoever and shall be open for business those hours that
conform with the hours of opening which are customary for businesses
of like character in the City of Scottsdale.
(b) Tenant, its agents, employees and/or contractors
shall, at Tenant s sole cost and expense, comply with the following:
(i) Tenant shall not use or permit upon the
Premises anything that would invalidate any policies of insurance now
or hereafter carried on the Premises or that will increase the rate
of insurance on the Premises or the Center;
(ii) Tenant shall pay all additional insurance
premiums which may be caused by the use which Tenant shall make of
the Premises;
(iii) Tenant shall not in any manner deface or
injure the Premises or overload any floor of the Premises;
(iv) Tenant shall not conduct or permit any auction
sale to be held on or about the Premises, whether such auction be
voluntary or involuntary, or any sidewalk sale without the prior
written consent of Landlord;
(v) Tenant shall not do anything or permit
anything to be done upon the Premises in any way tending to create
a nuisance, or tending to disturb any other lessee in the Center or
tending to injure the reputation of the Center, including, without
limitation, the playing of music audible outside the Premises and the
affixing or maintaining upon the glass panes or supports of the show
windows or on or within 24" of any window, doors or exterior walls
of the Premises, any signs, advertising placards, names, insignia,
trademarks, descriptive material or any other like item(s) without
having first received the written approval of Landlord as to the
size, type, color, location, copy, nature and display qualities of
any such item. All signs shall comply with City of Scottsdale sign
ordinances and The Citadel sign criteria.
(vi) Tenant shall not display merchandise,
advertise or solicit business on the sidewalks and other Common Areas
(defined at Article 6(a) below) or place any handbills, bumper
stickers or other advertising devices on any vehicle parked in the
Common Areas of any other parking area of the Center;
(vii) Tenant shall not use the Premises
designated as the office/lobby for lodging or sleeping purposes;
(viii) Tenant shall not commit or suffer to be
committed any waste upon the Premises;
(ix) Tenant shall not violate any recorded
restriction or covenant affecting the Center, nor use the Premises
for any purpose which would be in violation of any exclusive rights
or use granted to other tenants in the Center. Landlord shall not
grant exclusive rights which would prohibit Tenant from exclusively
using the Premises for the purposes stated in Article 4(a) above
except for incidental uses ancillary to the main use of the other
user.
(x) Tenant shall, at its sole cost and expense,
maintain the elevator located in the Center that services the Inn at
the Citadel in first class condition.
(c) Tenant shall provide and maintain sanitary receptacles
within the Premises in which to place any refuse or trash. Tenant
shall cause such refuse or trash to be removed from the Premises to
receptacles designated by Landlord as often as required to maintain
a sanitary condition, but in no event less often than daily. No
grease or rubbish or hazardous waste shall be disposed of through any
plumbing system. Tenant shall sweep as needed and keep free of
refuse all sidewalks immediately adjacent to the Premises if so
directed by Landlord. Tenant shall not allow the Premises to be
infested with insects or vermin.
(d) Tenant shall use its best efforts to complete all
deliveries, loading, unloading and services to the Premises before
10:00 a.m. each day. Tenant shall attempt to prevent any delivery
trucks or other vehicles servicing the Premises from parking or
standing in front of, or at the rear of, the Premises from 10:00 a.m.
to 9:00 p.m. of each day. Landlord reserves the right to further
regulate the activities of Tenant in regard to deliveries to and
servicing of the Premises, and Tenant agrees to abide by such further
non-discriminatory regulations of Landlord.
(e) Tenant shall, at Tenant's sole cost and expense,
comply with all present and future federal, state and local laws,
ordinances, orders, rules and regulations (collectively, "Laws"), and
shall procure all permits, certificates, licenses and other
authorizations required by applicable Law relating to Tenant's
business or Tenant's use or occupancy of the Premises or Tenant's
activities on the Premises. Tenant shall make all reports and
filings required by applicable Laws.
(f) Tenant's Warranty as to Hazardous or Toxic Materials.
Tenant shall not cause or permit any Hazardous Substances to be
brought upon, kept or used in or about the Premises by Tenant, its
agents, employees, contractors or invitees, except such incidental
quantities of commonly used office supplies (such as copier fluid and
typewriter correction fluids) and ordinary cleaning solvents,
provided that all of the foregoing are only in such quantities as are
normal for the permitted use of the Premises, are used in the manner
for which they are designed and are at all times used, kept, and
stored and disposed of in a manner that strictly complies with all
laws regulating any such Hazardous Substances. Any Hazardous
Substances placed in or on the Premises by Tenant, its agents,
employees, contractors or invitee shall remain the property of
Tenant, notwithstanding anything in the Lease to the contrary.
Tenant shall not install any underground storage tank on the
Premises, as such term is defined in 42 U.S.C. Section 66991 and the
regulations promulgated thereto, as amended from time to time and
including all pipes and conduiting relating thereto. If Tenant
breaches the covenants and obligations set forth herein, or if the
presence of Hazardous Substances on, in or about the Premises caused
by Tenant, its agents, employees, contractors or invitees, results
in contamination of the Premises, then Tenant shall indemnify, defend
and hold Landlord, its officers, employees, partners, agents and
representatives, free and harmless from and against any and all
claims, judgments, penalties, fines, costs, liabilities and damages,
(including, without limitation, sums paid in settlement of claims,
attorneys' fees and expenses (through all levels of proceedings),
consultants or experts fees) and all costs incurred in enforcing this
indemnity which arise during or after the Term as a result of the
presence of such Hazardous Substances or any contamination, damage
or injury therefrom. This indemnification by Tenant includes, without
limitation, any and all costs incurred in connection with any
investigation of site conditions or any clean up, remedial, removal
or restoration work required by any federal, state or local
governmental agency or political subdivision because of the presence
of such Hazardous Substances caused by Tenant, its agents, employees,
or contractors in, on or about the Premises. Tenant shall promptly
take all actions, at its sole cost and expense, as are necessary to
return the Premises to the condition existing prior to the
introduction of any such Hazardous Substances, provided that
Landlord's approval of such actions is first obtained. Furthermore,
Tenant shall immediately notify Landlord of any inquiry, test,
investigation or enforcement proceeding by or against Tenant or the
Premises concerning the presence of any Hazardous Substances. Tenant
acknowledges that Landlord, at Landlord's election, shall have the
right to negotiate, defend, approve and appeal any action taken or
order issued by any governmental authority with regard to any
Hazardous Substances condition which Tenant is obligated hereunder
to remediate. The provisions of this Article 4(f) shall survive the
expiration or sooner termination of the Term or of Tenant's right to
possession, whether by lapse of time or otherwise. The term
"Hazardous Substance" includes, without limitation, any material or
substance which is (i) defined or listed as a "hazardous waste",
"extremely hazardous waste", "restrictive hazardous waste" or
"hazardous substance" or considered a waste, condition of pollution
or nuisance under any Environmental Law (as defined below); (ii)
petroleum or a petroleum product or fraction thereof; (iii) asbestos;
and/or (iv) substances known to cause cancer and/or reproductive
toxicity. The term "Environmental Law" shall mean any federal, state
or local law, statute, ordinance, rule, regulation, order, consent,
decree, judgment or common-law doctrine, interpretation thereof, and
provisions and conditions of permits, licenses, plans, approvals and
other operating authorizations whether currently in force or
hereafter enacted relating to health, industrial hygiene or the
environmental conditions on, under or about the Premises or the
Center, including, without limitation, (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq.; (iii) the
Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.,
as such laws are amended and the regulations and administrative codes
applicable thereto. It is the intent of the parties hereto to
construe the terms "Hazardous Substance" and "Environmental Law" in
their broadest sense.
(g) Tenant shall keep its sign, exterior lighting and
display windows lit during those hours that Landlord in its sole
discretion may reasonably require.
(h) Tenant shall not use the Premises for any purpose
other than as set forth in Article 4(a) and shall notify Landlord in
writing of, and obtain Landlord s prior written consent to, any
intended change in the nature of its activities or business conducted
on the Premises and permitted by Article 4(a).
4. Taxes
(a) Tenant shall pay, prior to delinquency, all taxes
assessed against or levied upon Tenant's fixtures, furnishings,
equipment and other personal property (the Personalty ) located in
or upon the Premises. Tenant shall cause the Personalty to be
assessed and billed separately from the real property of which the
Premises form a part. In the event any or all of Tenant's Personalty
shall be assessed and taxed with the real property of which the
Premises or the Center are a part, Tenant shall pay to Landlord
Tenant's share of such taxes within ten days after delivery to Tenant
by Landlord of a statement in writing setting forth the amount of
such taxes applicable to Tenant's Personalty.
(b) Tenant shall, simultaneously with the payment of any
sums required to be paid under this Lease as Rent, additional rent
or otherwise, pay or reimburse Landlord for any sales, use, rental,
transaction privilege or other excise tax imposed or levied on, or
measured by, the amount paid.
(c) Concurrently with each payment of Minimum Annual Rent
hereunder, Tenant shall deliver to Landlord a copy of the Preliminary
Sales Tax Report filed (or required to be filed) by Tenant with the
Arizona Department of Revenue for the immediately preceding calendar
month, with respect to the business conducted in the Premises.
5. Common Areas
(a) All parking areas, access roads, driveways, pedestrian
sidewalks and ramps, landscaped areas, drainage facilities, exterior
lighting, signs, courtyards and other areas and improvements provided
by Landlord for the general use in common of tenants, their officers,
agents, employees, customers and other invites (collectively, the
"Common Areas") shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right
from time to time to modify, enlarge or eliminate the same and to
establish, modify and enforce reasonable rules and regulations with
respect thereto. Tenant's right to use the Premises includes the
non-exclusive right to use the areas designated from time to time by
Landlord as the Common Areas.
(b) Landlord shall at all times have the right to designate
a particular parking area to be used by employees of Tenant and other
occupants of the Center and any such designation may be changed by
Landlord from time to time. Tenant and its employees shall park
their cars only in those portions of the Common Areas, if any,
designated for that purpose by Landlord. Tenant shall furnish
Landlord from time to time with an accurate current list of its and
all its employees' automobile license plate numbers within 15 days
after taking possession of the Premises and thereafter within 15 days
after any change in the accuracy of the list. If Tenant or its
employees fail to park their cars in designated parking areas,
Landlord may charge Tenant $25.00 per day per car for each such
violation and shall have the right to have any such car towed away.
6. Operating Costs, Real Property Taxes
and Utilities
(a) Tenant shall pay as of the Rent Start Date to Landlord
Tenant's pro rata share of all of the Center's operating costs
consisting of the total cost and expense incurred in managing,
operating, maintaining replacing and repairing the Center and its
Common Areas including, without limitation, real property taxes and
general and special assessments, wages, salaries and employee
benefits of persons performing services in connection with the
Center, utilities, parking lot sweeping, sealing, patching, re-
striping and resurfacing; repairs, maintenance, and renewal of
equipment and improvements, including roofs, public liability and
property damage insurance, fire and extended coverage insurance,
plate glass insurance and rent interruption insurance, supplies,
materials, tools, parts, and equipment, equipment rental charges;
bookkeeping, accounting, legal and other professional charges and
expenses, fees for permits and licenses, administrative expenses,
taxes, service and maintenance contracts, signage, advertising,
marketing and landscaping, cleaning, window washing, lighting,
painting, fire protection and fire hydrant charges, steam, water and
sewer charges, gas electricity and telephone utility charges,
supplying music to the Common Areas, depreciation of the cost of
equipment used in operating and maintaining the Common Areas, or rent
paid for leasing such equipment, Landlord s office rent or the fair
market rental value of office space in the Center used by Landlord
to manage, operate and maintain the Common Areas, security, etc.,
(collectively, the Operating Costs ). Tenant's Pro Rata Share of
the Operating Costs shall be the proportion that the area of the
Premises bears to the total rentable area of all rentable space in
the Center owned by the Landlord.
(b) On the first day of each month (or such other regular
cycle as Landlord may determine)Tenant shall pay a monthly advance
charge on account of Tenant's Pro Rata Share of the Operating Costs.
The amount of the monthly charge shall be established by Landlord
and may be adjusted from time to time by Landlord to reflect the
actual cost. Within 120 days after the end of each fiscal year as
established for the Center by Landlord, Landlord shall provide to
Tenant a reasonably detailed summary of the actual Operating Costs
showing Tenant's actual share and the amount by which Tenant has
overpaid or underpaid. Any overpayment shall be credited to Tenant's
account. Any deficiency shall be payable within ten days after
receipt of the statement. In the alternative, Landlord may, at its
option during all or part of the Term, xxxx Tenant for its pro rata
share of Operating Costs in arrears based on actual costs as they are
incurred, in which case Tenant shall pay the invoice within ten days
after receipt. However, Landlord s failure to provide such reasonably
detailed summary of the actual Operating Costs showing Tenant's
actual share and the amount by which Tenant has overpaid or underpaid
by the date provided above shall in no way excuse Tenant from its
obligation to pay its pro rata share of Operating Costs or constitute
a waiver of Landlord s right to xxxx and collect such pro rata share
of Operating Costs from Tenant in accordance with this Article 7(b).
(c) The operating costs for the fiscal year in which this
Lease commences or terminates shall be apportioned so that Tenant
shall not be responsible for costs that relate to periods prior to
or subsequent to the term of this Lease except any period of holding
over.
(d) Tenant shall be solely responsible for payment for and
pay before delinquency all utilities provided to the Premises as of
the Commencement Date, which shall be separately metered at Tenant's
expense. Tenant s failure to timely pay its utility bills shall be
deemed a material breach of this Lease and an event of default.
Notwithstanding any other provision of this Lease, upon delivery of
a written notice by Landlord to Tenant of such even of default for
failure to pay such utility charges and Tenant s failure to cure said
default within 3 days of the delivery of such notice, Landlord may
terminate this Lease.
7. Construction, Delivery, and
Condition
(a) If delivery of possession of the Premises to Tenant
is delayed beyond the anticipated Commencement Date because of a
delay in the completion of construction of the Premises by Landlord
or because of a failure of an existing tenant to surrender possession
of the Premises to Landlord, then this Lease shall remain in full
force and effect, Landlord shall not be liable to Tenant for any
damage occasioned by delay, and the Commencement Date shall be
changed to the date actual delivery of possession to Tenant is
tendered. Notwithstanding the foregoing, if tender of possession is
delayed more than 120 days after the anticipated Commencement Date
as set forth in Article 1(a), Tenant, by written notice to Landlord,
may terminate this Lease prior to taking possession, and upon such
termination any Security Deposit shall be refunded and both Landlord
and Tenant shall be released of all further obligation hereunder.
(b) Tenant accepts the Premises AS IS, acknowledges that
Landlord has made no representations or warranties with respect
thereto and is relying solely upon Tenant s own independent factual,
physical and legal investigation, tests and studies. No Improvements
shall be constructed until approved plans and specifications have
been attached to this Lease or otherwise accepted by both Landlord
and Tenant. Landlord will have final approval of all Improvements.
(c) All Work shall be performed by licensed, bondable
Contractors (defined below) approved in writing by Landlord, whose
approval shall not be unreasonably withheld. The term Contractor as
used herein includes subcontractors or other persons hired or
retained by Tenant to construct improvements in the Premises. No Work
shall be commenced until Landlord shall first have received from
Tenant or its contractor a labor and materials payment bond issued
by a responsible surety in form reasonably satisfactory to Landlord
insuring that no mechanic's lien may be asserted against the Premises
or the Center in connection with the Work. Landlord may post signs
of non-responsibility around the Premises.
(d) Tenant shall have no right to enter the Premises
and/or to perform the Work prior to the Commencement Date, without
Landlord's written consent. If Landlord does so consent, Tenant shall
comply with directions of the Landlord and shall not interfere with
any of Landlord's construction activities. Any work performed by
Tenant, or any fixtures, furnishings, equipment and other personal
property moved onto the Premises, shall be at Tenant's own risk.
Neither Landlord nor Landlord's agents or contractors shall be
responsible to Tenant for damage or destruction of Tenant's work or
property excepting damage or destruction occasioned by Landlord's own
gross negligence. Tenant agrees to indemnify Landlord and hold
Landlord harmless from and against claims made with respect to
injuries to persons or damage or destruction of property of other
persons moved onto the Premises prior to the Commencement Date.
(e) Landlord has no obligation to design or construct
improvements or to make alterations in the Premises.
(f) Upon the expiration or earlier termination of this Lease
or upon the termination of Tenant's right of possession, whether by
lapse of time or otherwise, Tenant shall, upon demand by the
Landlord, at Landlord's option, at the Tenant's sole expense,
forthwith remove any alterations, additions or improvements made by
Tenant, designated by Landlord to be removed, and Tenant shall,
forthwith at its sole cost and expense, repair any damage to the
Premises caused by such removal and restore the Premises to a
condition reasonably comparable to their condition at the
commencement of the Lease. If not so demanded by the Landlord, then
any alterations, additions or improvements to the Premises, including
signs, but not including movable furniture and trade fixtures, shall
at the expiration or earlier termination of this Lease or upon the
termination of Tenant's right of possession, whether by lapse of time
or otherwise, become a part of the realty and belong to Landlord.
8. Repair and Maintenance
(a) Tenant shall, at Tenant s sole cost and expense, as
of the Commencement Date maintain the Premises and the improvements
thereon (including without limitation all heating, air conditioning,
ventilation, electrical and plumbing systems serving the Premises,
all signs, locks, doors and door frames), in good condition and
repair. All exterior and interior glass in the Premises shall be
maintained by Tenant and any glass broken shall be promptly replaced
by Tenant at its expense with glass of the same kind, size and
quality. If Tenant does not do so, Landlord may, but need not, make
any such repairs and replacements, and Tenant shall pay Landlord the
cost upon demand. Tenant hereby waives all right, if any, to make
repairs at the expense of Landlord.
(b) Subject to the provisions of Article 7, Landlord shall
repair and maintain the Common Areas, the roof and exterior of the
Premises and all utility lines below grade or in the Common Areas.
Landlord shall not be responsible to make any repairs or perform any
maintenance unless written notice of the need for such repairs or
maintenance is given by Tenant and Landlord determines, in good
faith, that such need does exist. Except in the case of a fire or
casualty as provided in Article 13 or in the event of a business
interruption caused solely by Landlord s gross negligence which
exceeds 14 days, there shall be no abatement of Rent and no liability
of Landlord by reason of any entry to the Premises, interruption of
services or facilities, temporary closure of Common Areas, or
interference with Tenant's business arising from the making of any
repairs or maintenance.
9. Alterations and Personal Property
Tenant shall not make or suffer to be made any alterations,
additions or improvements to the Premises, including signs, without
the prior written consent of Landlord of which consent shall not be
unreasonably withheld, but which shall not be required to be given
until Landlord has actually received a copy of Tenant s building
permit and plans (interior and exterior). Landlord may condition its
consent upon provision of a payment bond, in amount and form
reasonably satisfactory to Landlord, covering the work to be done by
Tenant's contractor. Tenant shall not install any antenna, satellite
dish or other fixture or equipment on the roof or in the Common
Areas. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant,
they shall be made by Tenant at Tenant's sole cost and expense and
any contractor or person selected by Tenant to perform the work must
first be approved in writing by Landlord. Tenant shall not permit any
mechanic's or materialmen's lien to stand against the Premises for
any labor or materials provided to the Premises by any contractor or
other person hired or retained by Tenant. Tenant shall cause any such
lien to be discharged (by bonding or otherwise) within ten days after
demand by Landlord, and if it is not discharged within ten days,
Landlord may, in addition to all other remedies for an event of
default, pay or otherwise discharge the lien and immediately recover
all amounts so expended from Tenant as Rent. Upon the expiration or
earlier termination of this Lease or upon the termination of Tenant's
right of possession, whether by lapse of time or otherwise, Tenant
shall, upon demand by Landlord, at Landlord's option, at Tenant's
sole cost and expense, forthwith remove any alterations, additions
or improvements made by Tenant, designated by Landlord to be removed,
and Tenant shall, forthwith at its sole cost and expense, repair any
damage to the Premises caused by such removal and restore the
Premises to a condition reasonably comparable to their condition at
the commencement of the Lease. If not so demanded by Landlord, then
any alterations, additions or improvements to the Premises, including
signs, but not including movable furniture and trade fixtures, shall,
upon the expiration or earlier termination of this Lease or upon the
termination of Tenant's right of possession, whether by lapse of time
or otherwise, become a part of the realty and belong to Landlord.
10. Certain Rights Reserved by
Landlord
Landlord shall have the right:
(i) To change the Center's name or street address;
(ii) To enter the Premises either personally or by
designated representative at all reasonable times during normal
business hours or other hours with prior notification for the purpose
of examining or inspecting the same, showing the same to prospective
purchasers or lessees, or performing any repairs, construction or
alteration in relation to the Center or which is Landlord's
responsibility under this Lease. Landlord shall be permitted to do
any of the above without any rebate of Rent and without any liability
to Tenant for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned. Tenant shall provide Landlord with a key
to the Premises for purposes of emergency entry by Landlord or its
agents. Use of this key is to be restricted to emergency situations
or as permitted by Tenant hereunder.
(iii) To grant to anyone the exclusive right to conduct any
business or render any service in or to the Center, provided such
exclusive right shall not operate to exclude Tenant from the use
expressly permitted under Article 4.
None of the rights specified above shall be construed or
otherwise considered as a waiver of any rights Landlord may have
under this Lease, at law or in equity or otherwise.
11. Damage to Property; Injury to Persons;
Insurance; Indemnity
(a) Tenant shall defend, indemnify and hold Landlord
harmless, regardless of fault or negligence which is imputed to
Landlord as the owner of Center, from any and all claims costs,
liability, damage or expense, including reasonable attorneys' fees,
for any death, damage or injury to persons or property occurring on
the Premises and resulting in whole or in part from (i) any
misrepresentation, breach of warranty or nonfulfillment of any
agreement on the part of Tenant contained in this Lease, (ii) any
act, omission or condition for which Tenant is solely responsible
under the Lease, (iii) any work of construction, improvement or
demolition controlled by or subject to the control of Tenant, (iv)
the negligence of Tenant, its agents, employees or contractors, (v)
Tenant's use or occupancy of the Premises, (vi) the conduct of its
business, (vii) from any activity, work, or thing done, permitted or
suffered by Tenant in or about the Premises, or (viii) from the
condition of the Premises. Tenant shall further defend, indemnify
and hold Landlord harmless from any and all claims arising in whole
or in part from any breach or default in the performance of this
Lease by Tenant, and/or arising in whole or in part from any act of
Tenant, or of its agents or employees, and from all costs, attorneys'
fees, expenses and liabilities incurred directly or indirectly as a
result of any such act and/or claim. Tenant, as a material part of
the consideration to Landlord, hereby assumes all risk of damage to
property or injury to persons, in, upon, or about the Premises from
any cause, and Tenant hereby waives all claims in respect thereto
against Landlord. Landlord shall in no event be liable for loss of
or damage to any property by vandalism, theft or otherwise, or for
any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water or rain
which may leak from any part of any building or from the pipes,
appliances or plumbing works therein, or from the roof, street or
subsurface, or from any other place resulting from dampness, or from
the
elements or any other cause whatsoever. Landlord shall not be liable
for interference with the natural light. Tenant shall give immediate
notice to Landlord of any fire, accident or defect discovered with
the Premises or the building of which the Premises are a part. Tenant
acknowledges that it can protect itself against some or all of the
foregoing risks by procuring appropriate insurance. Tenant's
indemnification obligations shall survive the expiration or earlier
termination of this Lease or upon the termination of Tenant's right
of possession, whether by lapse of time or otherwise.
(b) Tenant shall, at Tenant s sole cost and expense, as
of the Commencement Date maintain fire and extended coverage
insurance throughout the term of this Lease in an amount equal to one
hundred percent of the replacement value of Tenant's fixtures,
furnishings, equipment and other personal property located on the
Premises, together with such other insurance as may be required by
Landlord's lender or by any government agency. All proceeds of
Tenant's policy of fire and extended coverage insurance shall be
payable to Tenant, and all proceeds of policies of insurance procured
by Landlord shall be payable to Landlord. Tenant hereby waives any
right of recovery from Landlord and Landlord hereby waives any right
of recovery from Tenant for any loss or damage (including
consequential loss) resulting from any of the perils insured against
in the insurance policies required to be maintained hereunder. During
the Term, Tenant shall, at Tenant's sole cost and expense, maintain
general public liability insurance against claims for personal
injury, death or property damage occurring in, upon or about the
Premises. The limitation of liability of such insurance shall be not
less than Two Million Dollars in respect to injury or death of one
person and to the limit of not less than Two Million Dollars in
respect to any one accident and to the limit of not less than Five
Hundred Thousand Dollars in respect to property damage. All of
Tenant's policies of liability insurance shall be obtained by Tenant
in an "occurrence" form and shall name Landlord as an additional
insured or loss payee, as appropriate. All policies of insurance or
copies thereof required to be carried by Tenant under this Article
12 shall be delivered to Landlord prior to the Commencement Date and
thereafter at least thirty days prior to the expiration of the then
current policies. Each policy shall contain an endorsement
prohibiting cancellation or non-renewal without at least 30 days
prior notice to Landlord.
12. Fire and Casualty
If the Premises are wholly or partially destroyed or damaged
by fire or other casualty, Landlord shall restore the Premises with
reasonable diligence; provided, however, that Landlord shall have no
obligation to restore improvements not originally provided by
Landlord or to replace any of Tenant's fixtures, furnishings,
equipment or personal property; and provided further that Landlord
need not commence repairs until insurance proceeds are available and
are released in a sufficient amount for such purpose by any lender
holding a lien on all or part of the Center. Proceeds of insurance
payable with respect to a fire or other casualty shall be received
and held by Landlord. Notwithstanding the foregoing, in the event the
Premises are destroyed or damaged by any fire or casualty to the
extent of not less than twenty-five percent of the replacement cost
thereof, or if the fire or casualty occurs within the last three
years of the Term, then Landlord shall have the option to terminate
this Lease by giving notice to Tenant within sixty days after the
occurrence of such damage or destruction, in which case Landlord
shall retain all insurance proceeds with respect to the Premises as
its own property and shall not be required to spend any more on the
restoration than the amount of proceeds actually received by
Landlord. If Landlord does not terminate this Lease as provided
above, this Lease shall continue in full force and effect, but
Minimum Annual Rent shall equitably xxxxx until the restoration is
substantially complete. However, in the event it is determined that
Tenant's ability to continuously operate and conduct business on the
Premises is not hindered, then Minimum Annual Rent shall xxxxx in
proportion to the Premises under restoration. The provisions of this
Lease shall govern when this Lease shall be terminable as a result
of a fire or casualty, and no other rule or statute on the subject
shall apply.
13. Condemnation
In the event the entire Premises shall be appropriated or
taken under the power of eminent domain, this Lease shall terminate
and expire as of the date of such taking. In the event more than
twenty-five percent of the Premises is taken under the power of
eminent domain, or if by reason of any appropriation or taking,
regardless of the amount so taken, the remainder of the Premises is
not one undivided parcel of property, either Landlord or Tenant shall
have the right to terminate this Lease as of the date Tenant is
required to vacate a portion of the Premises upon giving notice in
writing of such election within thirty days after receipt by Tenant
from Landlord of written notice that the Premises have been so
appropriated or taken. If neither Landlord nor Tenant elects to so
terminate this Lease, or in the event less than twenty-five percent
of the Premises shall be appropriated under the power of eminent
domain by any public or quasi-public authority, and the remainder
thereof is an undivided parcel of property, then Landlord shall
restore the Premises to the extent practicable to their condition
prior to the taking, provided that no such restoration need commence
until the condemnation proceeds are available and released in a
sufficient amount for such purpose by any lender holding a lien on
all or part of the Center and further provided that Landlord shall
not be required to spend more than the condemnation proceeds actually
received by Landlord, and thereafter the Minimum Annual Rent shall
be reduced on an equitable basis, taking into account the relative
value of the portion taken as compared to the portion remaining. All
awards or compensation for any taking of any part of the Premises,
whether payable to Landlord or Tenant, shall be the sole property of
Landlord. Notwithstanding anything to the contrary contained herein,
Tenant shall be entitled to receive any portion of an award of
compensation relating to damage to or loss of trade fixtures or other
personal property belonging to Tenant, and Landlord shall be under
no obligation to restore or replace Tenant's furnishings, fixtures,
equipment and personal property. For the purposes of this Article 14,
a voluntary sale or conveyance in lieu of condemnation shall be
deemed an appropriation or a taking under the power of eminent
domain.
14. Assignment and Subletting; Sale by
Landlord
(a) Tenant shall not, either voluntarily or by operation
of law, assign, hypothecate or transfer this Lease, or sublet the
Premises or any part thereof, or permit the Premises or any part
thereof to be occupied by anyone other than Tenant or Tenant's
employees (individually, a Transfer ), without the Landlord's prior
written consent ("Transfer Notice") which shall not be unreasonably
withheld. However, Tenant may, without Landlord's prior approval,
sublet the Premises to Pinnacle Inn at The Citadel, LLC. Landlord
shall be under no obligation to give or withhold consent until after
all information reasonably required by Landlord with respect to the
identity, background, experience and financial worth of the proposed
assignee, transferee, or subtenant (the Transferee ) has been
provided. No hypothecation, assignment, sublease or other transfer
to which Landlord has consented shall be effective for any purpose
until such time as fully executed documents of such transaction have
been provided to Landlord, and, in the case of an assignment, the
assignee has attorned directly to Landlord, and in the case of a
sublease, the sublessee has acknowledged that the sublease is subject
to all of the terms and conditions of this Lease. Any assignment,
mortgage, transfer or subletting of this Lease which is not in
compliance with the provisions of this Article 15 shall be voidable
by Landlord and shall, at the option of Landlord, terminate this
Lease. Any differing of use or extension of use by Tenant or any
Transferee will, at the option of Landlord terminate this Lease. The
consent by Landlord to an assignment or subletting shall not relieve
Tenant from obtaining the express written consent of Landlord to any
further assignment or subletting or release Tenant from any liability
or obligation hereunder, whether or not then accrued. Except as
provided in this Article, this Lease shall be binding upon and inure
to the benefit of the successors and assigns of the parties.
(b) In the event of a sale or conveyance by Landlord of
the Premises, Landlord shall be relieved of all future liability upon
any of the covenants or conditions, express or implied, in favor of
Tenant, and Tenant shall look solely to Landlord's successor in
interest. This Lease shall not be affected by any sale, and Tenant
shall attorn to the successor in interest. If any Security Deposit
has been made by Tenant, the successor in interest shall be obligated
to return it in accordance with the terms hereof and Landlord shall
be discharged from any further liability in reference thereto.
(c) If any rent of other monetary payment due under the
terms of this Lease is made by check wherein the payor is other than
the Tenant herein, acceptance thereof shall in no way constitute
acceptance by Landlord of any assignment or subletting. Any
assignment or subletting must comply with the conditions of this
Article 15.
15. Estoppel Certificate
(a) Tenant shall at any time and from time to time upon
not less than ten days' prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect
(or if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and
effect) and the dates to which the rental and other charges are paid
in advance, if any; (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if they are claimed; and (iii)
certifying such other matters relating to this Lease as Landlord may
reasonably request. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
(b) Tenant's failure to deliver a statement within the
time prescribed by Landlord in its request for same shall be
conclusive upon Tenant (i) that this Lease is in full force and
effect, without modification except as may be represented by
Landlord, (ii) that there are no uncured defaults in Landlord's
performance, and (iii) that not more than one month's rental has been
paid in advance.
16. Landlord's Remedies
(a) The following shall constitute events of default:
(i) Tenant's failure to pay any amount due under
Article 2, Article 5(b) or Article 7 of this Lease within 5 days of
when due, or Tenants failure to pay any other amount due under this
Lease within 5 days after notice from Landlord.
(ii) Tenant's failure to execute, acknowledge and
return an estoppel certificate under Article 16 or a subordination
agreement under Article 19, within ten days after request.
(iii) Tenant's failure to perform any other obligation
under this Lease within fifteen days after notice of nonperformance;
provided, however, that if the breach is of such a nature that it can
be cured but it cannot be cured within fifteen days, Tenant shall be
deemed to have cured if cure is commenced promptly and diligently
pursued to completion with completion accomplished within 30 days of
the original notice of nonperformance; and provided further, that in
the event of a breach involving an imminent threat to health or
safety, Landlord may in its notice of breach reduce the period for
cure to such shorter period as may be reasonable under the
circumstances.
(iv) Tenant vacates, abandons, or otherwise ceases to
operate the Premises on a continuing basis except temporary absence,
excused by Landlord in its sole discretion, by reason of fire,
casualty, or other cause wholly beyond Tenant's control.
(v) Any goods, chattels or equipment of Tenant are
taken in execution or in attachment or if a writ of execution is
issued against Tenant or if Tenant or any guarantor becomes insolvent
or files a petition under the Bankruptcy Act or becomes bankrupt or
takes the benefit of any statute that may be in force for bankrupt
or insolvent debtors or becomes involved in voluntary or involuntary
winding-up proceedings or if a receiver shall be appointed for the
business, property, affairs or revenues of Tenant or any guarantor
(provided, however, that in the case of involuntary proceedings,
Tenant shall have 60 days to cause them to be dismissed), or if
Tenant makes a bulk sale of its goods or moves or commences, attempts
or threatens to move its goods, chattels and equipment out of the
Premises other than in the normal course of its business.
(b) Upon the occurrence of an event of default, Landlord,
at any time thereafter without further notice or demand, may, in
addition to all of its rights and remedies at law and/or at equity,
exercise any one or more of the following remedies concurrently or
in succession, all of which shall be cumulative:
(i) Terminate Tenant's right to possession of the
Premises by legal process or otherwise, with or without terminating
this Lease, and retake exclusive possession of the Premises.
(ii) From time to time relet all or portions of the
Premises, using reasonable efforts to mitigate Landlord's damages.
In connection with any reletting, Landlord may relet for a period
extending beyond the term of this Lease and may make alterations or
improvements to the Premises without releasing Tenant of any
liability. Upon a reletting of all or substantially all of the
Premises, Landlord shall be entitled to recover all of its then
prospective damages for the balance of the Lease term measured by the
difference between amounts payable under this Lease and the
anticipated net proceeds of reletting during the remaining Term. In
no event shall Tenant be entitled to receive any amount representing
the excess of avails of reletting over amounts payable hereunder.
(iii) From time to time recover accrued and unpaid
rent and damages arising from Tenant's breach of the Lease,
regardless of whether the Lease has been terminated, together with
applicable late charges and interest.
(iv) Enforce the statutory landlord's lien on Tenant's
property.
(v) Recover all reasonable attorneys' fees incurred
by Landlord in connection with enforcing this Lease, recovering
possession and collecting amounts owned.
(vi) Perform the obligation on Tenant's behalf and
recover from Tenant, upon demand, the entire amount expended by
Landlord plus 20% for special handling, supervision, and overhead.
(vii) Terminate this Lease by giving written notice
of such intention to terminate. In the event that Landlord elects to
terminate this Lease, then Landlord may recover from Tenant:
(a) All unpaid Rent owed by Tenant as of the
date of termination; plus
(b) All Rent which would have been payable by
Tenant under this Lease but for its termination until
the time of award; plus
(c) All Rent under the Lease for the balance
of the Term after the time of award; plus
(d) All other damages incurred by Landlord as
a result of Tenant s default.
default.
Although defined elsewhere, the parties acknowledge that the
term Rent shall be deemed to be and mean the Annual Minimum Rent
and all other sums required to be paid by Tenant pursuant to the
terms of this Lease.
(viii) Pursue other remedies available at law or in
equity.
(c) Upon a termination of Tenant's right to possession,
whether or not this Lease is terminated, subtenancies and other
rights of persons claiming under or through Tenant: (i) shall be
terminated or (ii) Tenant's interest shall be assigned to Landlord.
Landlord may separately elect termination or assignment with respect
to each such subtenancy or other matter.
17. Notices
All notices to be given by one party to the other under this
Lease shall be in writing, mailed or hand-delivered to each at the
address to the individual, set forth at the end of this Lease or at
a changed address if notice of the change is given to the other party
in writing. In the case of notice to Tenant after Tenant takes
possession of the Premises, notice shall be sufficient if mailed or
delivered to the address of the Premises. Mailed notices shall be
sent by United States certified or registered mail, postage prepaid.
Such notices shall be deemed to have been given upon posting in the
United States mail. Actual notice shall be no substitute for written
notice under any provision of this Lease.
18. Subordination
Landlord expressly reserves the right at any time to place
ground leases, liens and encumbrances on and against the Premises and
the Center (collectively, the Title Matters ), superior in lien and
effect to this Lease and the estate created hereby. Tenant
acknowledges that there may currently exist any such Title Matters
which are superior in lien and effect to this Lease and the estate
created hereby. This provision shall be self-operative, but Tenant
shall nevertheless execute upon request subordination agreements
presented by Landlord to confirm the superiority of the Title
Matters.
19. Authority to Execute
Any individual executing this Lease on behalf of or as a
representative for a corporation or other person, firm, partnership
or entity represents and warrants that such individual is duly
authorized to execute and deliver this Lease on behalf of said
corporation, person, firm, partnership or other entity and that this
Lease is binding upon said entity in accordance with its terms. If
Tenant is a corporation, Tenant shall deliver to Landlord within
fifteen days after the execution hereof a certified copy of a
resolution of the Board of Directors of said corporation authorizing
or ratifying the execution and delivery of this Lease by the
individuals executing and delivering same on behalf of Tenant.
20. Brokers
Landlord and Tenant each covenant that they have not dealt
with any real estate broker or finder with respect to this Lease and
each party shall hold the other party harmless from all damages,
claims, liabilities or expenses, including reasonable and actual
attorneys' fees (through all levels of proceedings), resulting from
any claims that may be asserted against the other party by any real
estate broker or finder with whom the indemnifying party either has
or is purported to have dealt.
21. Arbitration
All controversies, disputes or claims arising between
Landlord and Tenant in connection with, arising from, or with respect
to this Lease or any agreement related to this Lease between the
parties shall be submitted for binding arbitration in accordance with
rules of the American Arbitration Association or any successor
thereof. Arbitration shall be conducted solely on an individual, not
a class-wise basis, unless all parties so agree. Venue of such
arbitration shall be set in Maricopa County, Arizona. Each party
shall select one arbitrator (who shall not be counsel for the party)
and the two so designated shall select a third arbitrator. If either
party shall fail to designate an arbitrator within ten (10) days
after arbitration is requested, or if the two arbitrators shall fail
to select a third arbitrator within twenty (20) days after
arbitration is requested, then such arbitrator shall be selected by
the American Arbitration Association or any successor thereto upon
application of either party. Judgment upon any award of the majority
of arbitrators shall be binding, final and non-appealable and shall
be entered in a court of competent jurisdiction. The award of the
arbitrators may grant any relief which might be granted by a court
of general jurisdiction including, without limitation, an award of
damages and/or injunctive relief, and the costs of the arbitration,
including the reasonable fees of the arbitrators and reasonable
attorney s fees. All issues relating to the arbitrability or the
enforcement of the agreement to arbitrate contained herein shall be
governed by the Federal Arbitration Act (9 U.S.C. 1 et. seq.) and
the Federal Common Law of Arbitration.
22. Americans with Disabilities Act
Landlord and Tenant hereby acknowledge that the Americans with
Disabilities Act (the ADA ) may affect Tenant s use and occupancy of
the Premises and requires Tenant to modify or alter the design,
layout or other physical elements of the interior of the Premises or
provide auxiliary services in connection with its business
operations. Tenant shall comply in all respects with the requirement
of the ADA as it affects Tenant s use and occupancy of the Premises
throughout the Term, and Tenant acknowledges that, notwithstanding
any modifications to the Common Areas which may be made by Landlord
in order to conform such areas with the requirements of the ADA,
Landlord makes no representation or warranties regarding the
compliance of the Premises of the Center with the ADA, nor shall
Landlord have any obligations or liabilities to Tenant to construct
any modifications or alterations to the interior of the Premises in
order to comply with the ADA.
23. General Provisions
(a) This Lease and the obligations of Tenant hereunder
shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so
if such inability or delay is caused by reason of any strike,
lockout, civil commotion, war-like operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental
regulations or controls, inability to obtain any material, service
or financing, Act of God or other cause beyond the control of the
Landlord.
(b) Landlord shall have the right to, from time to time,
make rules and regulations for the Center and its operations. Tenant
and its officers, agents, and employees, agree to comply with the
rules and regulations established by Landlord and with such
modifications and additions as Landlord may hereafter make for the
Center. Any violation of the rules and regulations shall constitute
a material breach of this Lease.
(c) The article captions contained in this Lease are for
convenience only and shall not be considered in the construction or
interpretation of any provision. The masculine, feminine or neuter
gender and the singular or plural number shall be deemed to include
the others whenever the context so requires or indicates.
(d) This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in
this Lease, and no prior agreement or understanding pertaining to any
matter shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in interest.
(e) Submission of this instrument for examination shall
not bind Landlord in any manner, and no lease or obligations of
Landlord shall arise until this instrument is signed and delivered
by authorized officers of Landlord and Tenant.
(f) No rights to light or air over any property, whether
belonging to Landlord or any other persons, are granted to Tenant by
this Lease.
(g) No waiver by Landlord of any provisions of this Lease
or any breach by Tenant hereunder shall be deemed to be a waiver of
any other provision hereof, or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval
of any act by Tenant requiring Landlord's consent or approval shall
not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act of Tenant, whether or
not similar to the act so consented to or approved. No act or thing
done by Landlord or Landlord's agent during the term of this Lease
shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender shall be valid unless in writing and
signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys to the Premises prior to the
termination of this Lease, and the delivery of the keys to any
employee shall not operate as a termination of the Lease or a
surrender of the Premises.
(h) Time is of the essence of this Lease.
(i) All exhibits attached hereto are incorporated herein
by this reference.
(j) The parties hereto agree that all the provisions
hereof are to be construed as covenants and agreements as though the
words importing such covenants and agreements were used in each
separate paragraph hereof. This Lease is the result of negotiations
between Landlord and Tenant, who each had the opportunity to obtain
legal advice regarding the same. This Lease shall not be construed
for or against Landlord or Tenant on the basis of which party
physically served as scrivener of this Lease.
(k) Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third person to create the
relationship of principal and agent, partnership, joint venture, or
any other association between Landlord and Tenant other than the
landlord-tenant relationship described herein.
(l) In the event either party shall commence or be
required to defend any action or proceeding against any other party
by reason of any breach or claimed breach of any provision of this
Lease, to commence or defend any action or proceeding in any way
connected with this Lease or to seek a judicial declaration of rights
under this Lease, the party prevailing in such action or proceeding
shall be entitled to recover from or to be reimbursed by the other
party for the prevailing party's reasonable attorneys' fees and costs
through all levels of proceedings.
(m) If any provision of this Lease or the application
thereof to any person or circumstance shall be deemed invalid or
unenforceable, the remainder of this Lease and its application to
other persons or circumstances shall not be affected by such partial
invalidity but shall be enforced to the fullest extent permitted by
law as though such invalid or unenforceable provision was never a
part hereof.
(n) This Lease shall be construed in accordance with the
laws of the State of Arizona without regard to its principles of
choice of law, and the parties agree that jurisdiction for all
actions hereunder shall lie therein.
(o) This Lease shall be governed by the laws of the State
of Arizona.
LANDLORD: ADDRESS:
Pinnacle Citadel, L.L.C., an 00000 X. Xxxxxxxxxx Xxxx
Arizona limited liability company Xxxxxxxxxx, Xxxxxxx 00000
By: Prime Pinnacle Peak Properties,
Inc., an Arizona corporation,
Its Managing Member
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx, General Manager
TENANT: ADDRESS:
Giant Industries Arizona, Inc. 00000 X. Xxxxxxxxxx Xxxx
an Arizona corporation Xxxxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Its: CEO
----------------------------------
