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EXHIBIT 10.8a
LEASE
THIS LEASE made this 24th day of June , 1960, between XXXXXXXXXXX
PROPERTIES, INC., an Arizona corporation, hereinafter referred to as Lessor, and
SMITTY'S SUPER VALU, INC., an lowa corporation, hereinafter referred to as
Lessee.
WITNESSETH:
1. The Lessor, in consideration of the rents and covenants hereinafter
specified to be paid, kept and performed by the Lessee, hereby demises and
leases to Lessee, and Lessee in consideration of the covenants and agreements to
be kept and performed by Lessor, hereby leases from Lessor all of the following
described premises and property situated and being in the City of Phoenix,
County of Maricopa, State of Arizona, to wit:
That part of the Northeast quarter of the Northeast quarter of Section
sixteen (16), Township One (1) North, Range Three (3) East of the Gila
and Salt River Base and Meridian, described aa follows:
BEGINNING South 45 degrees 0 minutes West 46.88 feet from the Northeast
corner of said Section 16, and the true point of beginning; thence
Southerly 1310.47 feet to a point 33 feet West of the East line of said
Section 16, thence Westerly 652.40 feet to a point that is 1316.25 feet
South of the North line of said Section 16, thence Westerly 225.36 feet
to a point that is 1318.59 feet South of the North line of said section
16; thence Northerly 1285.59 feet to a point 33 feet South of the North
line of said Section 16; thence Easterly parallel to the North line of
said Section 16, a distance of 855.44 feet to the truepoint of
beginning.
ALSO KNOWN as a portion of Tracts One (1) and Two (2) of State Plat No.
2, according to the plat of record in the office of the County Recorder
of Maricopa County, Arizona, in Book 8 of Maps, page 24.
together with all of the rights, privileges, easements and
appurtenances thereunto appertaining.
2. The term of this lease shall commence upon the date on which the
Lessee shall first commence the transaction of business in the building which is
to be constructed upon said premises by Lessee for the conduct by it of a market
business or upon the expiration of six (6) months from the date of this lease,
whichever shall first occur, and shall continue for a term of fifty-five (55)
years thereafter, hereinafter referred to as the "primary term", with the right
on the part of Lessee to renew or extend the term of this lease for an
additional period of fifty (50) years from and after the expiration of the
primary term, as hereinafter set forth, and at the rental hereinafter specified;
except, however that any period of delay in the completion of
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said construction work which may be occasioned by acts of God or action of the
elements or general shortage of labor, equipment facilities, materials or
supplies in the open market, strikes or orders of governmental or civil or
military or naval authorities, shall operate to postpone the commencement of the
term of this lease for a period or periods commensurate with any such period of
delay.
3. Lessee covenants and agrees to pay Lessor as the rental for the
leased premises the sum of $__________ per year, (subject to modifications as
hereinafter provided), payable monthly in advance at the rate of $______ per
month on the 1st day of each and every month during the term of this lease, with
appropriate adjustment for any period lease than one (1) month from the
commencement of the term until the first rental payment shall be due. Lessor
hereby acknowledges receipt from Lessee of the sum of $__________ representing
the rental for the first month and the last eleven months of the primary term.
4. The rental for the second five (5) years of the term of this lease
shall be $__________ per year, or an amount per year determined by tbe cost of
living formula hereinafter set forth, whichever amount shall be the lesser, and
the rental for the third five (5) years of the term of this lease shall be the
sum of $__________ per year, or an amount per year determined by the said cost
of living formula, whichever shall be the lesser; and the rental for the
remainder of the primary term and for the extended term, if this lease shall be
renewed or extended, shall be determined by said cost of living formula. In no
event shall the determined rent be less than per $__________ per annum unless a
part of the premises be taken under eminent domain, or the access thereto be
limited, as hereinafter provided at paragraph 25.
5. The amount of rental determined by said cost of living formula
shall be computed and determined as follows: Upon the expiration of the first
five (5) years of the term of this lease and upon the expiration of each
successive five (5) year period of the primary term and of the extended term, if
this lease shall be renewed or extended, the rental for the next succeeding five
(5) lease-years shall be adjusted as follows:
(a) The parties hereto shall ascertain the then current
index number for all items set forth in the Consumer's Price Index
of the Bureau of Labor Statistics, United States Department of
Labor (1947-1949 equals 100) combined for all cities in the United
States for the most recent month for which such index has been
published by the Bureau of Labor Statistics (the then current index
number is represented by the letter "C" in the formula set forth
below).
(b) The adjusted annual rental for each of the next
succeeding five lease-years (represented by the
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letter "R" in the formula set forth below) shall be equal to the
then current index number "C" divided by 126.2, the present index
number, and multiplied by
--------.
This computation is expressed by the following mathematical
formula
R = C X
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126.2
The annual rental as above specified or computed shall be payable in
equal monthly installments.
6. In the event the publication of said Index shall be discontinued in
its present form or by the Bureau of Labor Statistics, any other price index
published by any other Federal agency or in any other form which can be
correlated to the said Consumer's Price Index by interpolation or conversion
shall be used in lieu of said Consumer's Price Index, but if no such price index
shall be available, then the adjusted annual rental to be paid by Lessee for
each successive five (5) lease-years shall be agreed upon by the parties at the
beginning of each such five-year period, and if the parties are unable to agree
within fifteen (15) days immediately prior to the commencement of each five-year
period, then the amount of such adjusted rental shall be determined by
arbitration, in which event Lessor shall immediately appoint one arbitrator and
Lessee shall immediately appoint one arbitrator, and the two arbitrators so
appointed shall promptly select a third arbitrator. In the event the two
arbitrators so appointed fail to agree on the appointment of a third arbitrator
within twenty (20) days, then such third arbitrator shall be appointed by the
then presiding Judge of the United States District Court for the District of
Arizona, Phoenix Division. In determining the amount of the adjusted annual
rental for any such five-year period, the arbitrators shall be guided by the
principles of the formula outlined above. The decision of the arbitrators shall
be rendered within fifteen (15) days after the appointment of the third
arbitrator. The decision in writing signed by two or more of the said
arbitrators shall be binding and conclusive upon the parties hereto with respect
to the adjustment of rental for the particular five-year period under
consideration. The cost of such arbitration shall be borne equally by Lessor and
Lessee.
7. Any income by way of rentals or otherwise which may accrue from
said premises during the period between the date of the execution of this lease
and the date of the commencement of the lease term shall belong to the Lessor,
it being understood, however, that Lessor shall from time to time during said
period, at the request of Lessee, terminate the tenancies of any or all tenants
who may not be in possession, of said premises or any part thereof in the manner
provided by law.
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8. The Lessee will keep the leased premises and all buildings and
improvements thereon and every part thereof, and every right, title and interest
therein, or in or to any part thereof, at all times during the term of this
lease free and clear of mechanics' liens and other liens for labor, services,
supplies, equipment or material, and the Lessee will at all times fully pay and
discharge and save harmless the Lessor, its successors and assigns against any
and all claims which may or could ripen into such liens, and against all
reasonable attorney's fees and costs and all expenses, damages or outlays which
may or might be incurred by the Lessor or the Lessee by reason of any such liens
or claims or the assertion or filing thereof.
9. Lessee during the continuance of this lease covenants and agrees to
indemnify and save harmless the Lessor from each and every loss, cost, damage
and expense arising out of any accident or other occurrence, causing injury to
or death of persons or damage to property by reason of the construction or
maintenance of the buildings or any additions thereto, or due to the condition
of the leased premises or sidewalks, or the use or neglect thereof by the Lessee
or any subtenant of Lessee. Lessee further agrees during the continuance of this
lease to also indemnify and save harmless the Lessor and its interest in the
leased premises from all damages and penalties arising out of any failure of the
Lessee to comply with any of the Lessee's obligations hereunder.
10. Lessee agrees to provide, pay for and maintain public liability
insurance of not less than One Hundred Thousand and no/100ths Dollars ($100,000)
with respect to bodily injury or death to any one person and of not less than
Three Hundred Thousand and no/100ths Dollars ($300,000) with respect to bodily
injury or death to any number of persons in one accident, for the protection of
the Lessor and Lessee against liability that may or might arise from any
accident resulting in injury to or death of any person. Lessee further agrees to
furnish Lessor with certificates of insurance or other evidence that such
insurance is in effect.
11. In addition to the rent herein agreed to be paid, the Lessee agrees
to pay before delinquency all charges for all utilities used by the Lessor or
charged to said leased premises or any part thereof, including (without limiting
the generality of the foregoing) water, gas, heating, cooling, electricity and
power, and Lessee agrees not to permit any charges of any kind to accumulate or
become a lien against said premises.
12. In addition to the rent herein agreed to be paid, the Lessee agrees
to pay all taxes and assessments of every kind or character which are or may be
at any time during the term of this lease levied or assessed on the leased
premises and the improvements thereon, including all personal property taxes,
assessments and other charges levied upon or assessed against the
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equipment, furniture, furnishing and fixtures owned by Lessee and located on
said premises, and including, but not by way of limitation, all such taxes and
assessments which may be levied or assessed against the leased premises or
improvements thereon by the United States, the State of Arizona, County of
Maricopa, City of Phoenix, or any other governmental authority, commencing with
the calendar year 1961 and continuing thereafter during the term of this lease,
including the extended term if this lease shall be renewed or extended. All such
taxes and assessments shall be paid by Lessee before the same become delinquent
and all such taxes and assessments for the year to which this lease commences
and the year in which it terminates shall be apportioned and adjusted on a pro
rata time basis between the Lessor, upon the request of Lessee. Lessee agrees to
exhibit to Lessor, upon the request of Lessor, receipts for the payment of such
taxes and assessments.
13. The Lessee shall have the right to assign this lease or sublet said
premises to whole or in part without the written consent of the Lessor, provided
that any such assignment or subletting shall not release the Lessee of any of
its obligations hereunder, unless the Lessor shall expressly consent to such
release in writing. Upon any such assignment of this lease, or the subletting of
the entire leased premises under this lease, there shall be delivered to Lessor
a written notice thereof and of the assumption by the assignee or the sublessee
of the Lessee's obligations hereunder, but such notice shall not be required for
any subleasing by the Lessee to a sublessee of any areas or areas less than the
whole of the leased premises whereunder the sublessee does not assume the
obligations of the Lessee.
14. Lessee shall have and is hereby given the privilege and option to
renew or extend the term of this lease for an additional period of fifty (50)
years from and after the expiration of the primary term and, in the event of the
exercise by Lessee of said option, Lessee shall notify the Lessor in writing not
less than ninety (90) days prior to the expiration of said primary term of its
intention so to do, such renewal or extension to be upon the same terms and
conditions as set forth in this lease.
15. If at any time during the primary term or extended term of this
lease the Lessor, its successors or assigns, shall receive a bona fide offer to
purchase the demised premises which is acceptable to Lessor and which Lessor
desires to accept, Lessee or its successors or assigns shall have the first
right to purchase the demised premises upon the same terms and conditions
specified in such offer provided, however, that Lessee, its successors or
assigns, shall exercise said right to purchase within thirty (30) days following
the receipt by Lessee, or its successors or assigns, of written notice from the
Lessor of said bona fide offer to purchase and of Lessor's desire to accept said
offer.
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16. It is the mutual desire of the Lessor and the Lessee that the
existing railroad spur track located on the westerly portion of the demised
premises shall be built and extended onto the property immediately west of the
demised premises within a period of twenty-four (24) months after the date of
this lease, and to that end Lessor and Lessee agree within said period to do any
and all things necessary or advisable to accomplish said purpose and to execute
and delivery any and all agreements or papers incidental to providing the
necessary right of way over the demised premises for said railroad track,
provided that Lessee shall have the privilege of designating the point of
connection of said new track with the existing track and the course to be
followed by said new track on the leased premises, and provided further that the
owner or owners of the property adjoining the leased premises on the west shall
pay all costs and expenses incurred in building and extending said railroad
track.
17. The Lessor agrees that the Lessee, having paid the rent and duly
performed all of the obligations contained herein upon the part of the Lessee,
shall and may peaceably and quietly have, hold and enjoy said leased premises
and the whole thereof during the full term of this lease. Said Lessors will
furnish to Lessee a guaranteed certificate of title showing a good and
sufficient title in the Lessor, said certificate of title to be furnished on the
execution of this agreement.
18. Lessee agrees that at the expiration of the full term of this lease
or the earlier termination thereof, peaceable possession of the leased premises
and all improvements thereon will be delivered to the Lessor, except that Lessee
shall have the right to remove any of the buildings now on the leased premises
or which may be placed thereon during the first forty-five (45) years of the
primary term of this lease; but such right of renewal shall not extend to the
last ten (10) years of the primary term unless the Lessee shall elect at any
time during said last ten (10) year period to renew or extend the term of this
lease as herein provided and in the event of such renewal or extension, then the
Lessee shall have the right to remove, alter, improve or replace any building,
structure or improvement theretofore placed upon the leased premises.
19. If Lessee at any time during the term of this lease shall default
in the performance of any covenant or agreement herein contained and shall fail
to cure such default within forty-five (45) days, as to the payment of rent or
any other money payment, or within sixty (60) days, as to any other covenant or
agreement, after the date of receipt of written notice from Lessor to Lessee of
any such default, or if the default is of such a character, other than the
payment of money, as to require more than sixty (60) days to cure and Lessee
fails to proceed diligently to cure such default, or if Lessee is adjudicated a
bankrupt, Lessor shall have the right at its election at any time thereafter to
reenter and take complete and peaceable possession of the demised premises and
to expel Lessee
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and every person in or upon the demised premises, using such force as may be
necessary, and to declare the term of this lease ended, whereupon the right,
title and interest of Lessee hereunder as to the demised premises and all
improvements thereon shall terminate. In such event Lessor shall have the right
to xxx for and recover all rents and other sums accrued up to the time of such
termination, including damages on account of the loss of rent for the balance of
the term hereof and all damages arising out of any breach on the part of Lessee.
No right or remedy herein conferred upon or reserved to Lessor is intended to be
exclusive of any other right or remedy herein or by law provided and each shall
be cumulative and in addition to any right or remedy given herein or now or
hereafter existing at law or in equity, or by statute.
20. If Lessee shall default in the performance of any of its covenants
hereunder, Lessor may, sixty (60) days after receipt of written notice by
Lessee, perform the same for the account and at the expense of Lessee, if Lessee
should fail to so perform. If Lessor at any time is compelled to pay or elects
to pay any sum of money or do any act which will require Lessor to incur any
expense or pay any sum of money by reason of the failure to Lessee to comply
with any provision hereof, the sum or sums so paid by Lessor shall be deemed to
be additional rent hereunder and shall be due from Lessee to Lessor on demand
provided, however, that Lessee shall not be deemed to be in default if Lessee
shall have and assert a bona fide defense against any wrongful or disputed
claims made against the Lessee and if the Lessee shall diligently assert such
legal defense as it may have against any such claim, the Lessor shall in no way
interfere with the assertion of Lessee's defense unless or until such defense
shall have been judicially determined to be without merit.
21. If Lessor shall commence any legal proceedings against Lessee for
the recovery of rent or to recover possession or for relief because of any
default by Lessee and shall prevail therein, Lessee shall in each and every such
instance pay to Lessor all expense thereof, including reasonable attorney's
fees.
If Lessee shall commence any legal proceedings against Lessor for
relief because of any default by Lessor and shall prevail therein, Lessor shall
in each and every such instance pay to Lessee all expense thereof, including
reasonable attorney's fees.
22. Any notices or demands which shall be required or permitted by law
or by any of the provisions of this lease shall be in writing, and if the same
are to be served upon Lessor they may be personally delivered to an officer of
Lessor or may be deposited in the United States mail, registered or certified,
postage prepaid, addressed to Lessor at P.O. Box 453, Phoenix, Arizona, or at
such other address as Lessor may designate in writing.
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If such notices or demands are to be served upon Lessee, they may be
personally delivered to the Lessee or may be deposited in the United States
mail, registered or certified, postage prepaid, addressed to Lessee at Phoenix
Realty Corp., 000 X. Xxxxxxx Xxxxxx, Xxxxxxx, xx at such other address as Lessee
may designate in writing.
23. Waiver by either party of any default on the part of the other
party shall not be deemed in any manner a waiver of any subsequent default, nor
shall any delay upon the part of either party in enforcing any of the provisions
hereof preclude such party at any subsequent time from promptly enforcing the
provisions hereof.
24. The covenants and agreements herein contained shall extend to and
be binding upon the heirs, executors, administrators, successors and assigns of
the parties hereto.
25. If any portion of the leased premises shall be taken by virtue of
the exercise of the power of eminent domain, or by condemnation of any
Government, Government agency or corporation or if the right of access to any
portion of the leased premises shall be substantially limited, the amount of the
rental to be paid for the remainder of the term of the lease for the portion of
the premises not so taken shall be determined by agreement between the parties
hereto and if the parties are unable to so agree, the amount of such rental
shall be determined by arbitration by arbitrators to be appointed and who shall
act according to the arbitration provisions of paragraph 6 of this lease,
provided, however, that no adjustment of rental shall be required or made by
reason of the condemnation or dedication of the South 40 feet or less of the
leased premises for road or street purposes.
26. If the Lessor shall at any time during the primary or extended term
of the lease permit the leased premises to be encumbered in such manner as to
threaten the validity of this lease or Lessee is right to possession of the
leased premises, then, and in any such event, the Lessee shall have the right,
after ten (10) days' notice to Lessor and Lessor's failure within said period to
act, to make any payment or payments on behalf of Lessor in order to remove any
such encumbrance from the leased premises and to deduct from the rentals
thereafter due to the Lessor the amount of money so paid by Lessee with legal
interest thereon and any amount so paid shall be credited to the account of the
Lessee as payment of rental hereunder.
27. The Lessee shall have the power and authority to assign, sublet,
mortgage or in any other manner encumber any or all of the improvements,
buildings, structures, equipment, fixtures or other items placed on the leased
premises by the Lessee and in each such instance the Lessor's lien for rent
shall be subject to the rights of the mortgagor or person or corporation holding
any such encumbrance, but nothing herein
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contained shall authorize or empower the Lessee to encumber the title to the
leased premises and the Lessee shall have the right at all times to pledge as
security this lease or any part thereof.
IN WITNESS WHEREOF, Lessor has caused this instrument to be executed by
its officers thereunto duly authorized, and Lessee has hereunto set its hand the
day and year first above written.
XXXXXXXXXXX PROPERTIES, INC.,
a corporation,
By:
--------------------------------
Its President
Lessor
ATTEST:
/s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Secretary
SMITTY'S SUPER-VALU, INC., a
corporation
By /s/ Xxxxx X. Xxxxx
--------------------------------
Its President
Lessee
ATTEST:
/s/ Xxxxx X. Xxxxx
-----------------------------------
Secretary
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STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me this 24th day of June, 1960,
by Xxxx Xxxxxxxxxxx as the President and by Xxxx Xxxxxxxxxxx as the secretary of
Xxxxxxxxxxx Properties, Inc., a corporation.
/s/ George Wahland
-----------------------------------------
Notary Public
My Commission Expires:
1-24-64
------------------------------
STATE OF IOWA )
) ss.
COUNTY OF XXXXXXXX )
This instrument was acknowledged before me this 9th day of June, 1960,
by Xxxxx X. Xxxxx as the President and by Xxxxx X. Xxxxx as the secretary of
Smitty's Super-Valu, Inc., a corporation.
/s/ Xxxx Xxxxxx
-----------------------------------------
Notary Public
My Commission Expires:
July 4, 1960
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