LEASE AGREEMENT
EXHIBIT
10.26
THIS LEASE AGREEMENT (this "Lease")
is
made as of September 19, 2006, by and between SOUTHWEST PREMIER PROPERTIES,
L.L.C., a Texas limited liability company, whose address is X.X. Xxx 00000,
Xxxxxxx, Xxxxxxx 00000 ("Landlord"),
and
CENTRAL FREIGHT LINES, INC., a Texas corporation, whose executive office is
00000 X. Xxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX 00000 ("Tenant").
RECITALS
WHEREAS, on the date hereof, Tenant is selling to Landlord that certain property
located at 0000 X. Xxxxxxx Xx., Xxxxxx, XX 00000, more fully described on
Exhibit "A" hereto (the "Property");
and
WHEREAS,
Landlord now desires to lease the Property to Tenant, and Tenant desires to
lease the Property from Landlord, in each case on the terms set forth in this
Lease.
NOW,
THEREFORE, in consideration of the foregoing Recitals and the mutual promises
set forth below, and for other good and valuable consideration the receipt
and
sufficiency of which hereby are acknowledged, the parties agree as
follows:
AGREEMENT
ARTICLE
1
THE
LEASE
SECTION
1.01. Subject to the terms and conditions set forth below, Landlord hereby
leases to Tenant, and Tenant hereby leases from Landlord, the
Property.
SECTION
1.02. The term of this Lease is ten (10) years and shall commence on September
19, 2006, and shall end on September 18, 2016, unless it is sooner terminated
as
hereinafter provided. Landlord or Tenant may extend this Lease an additional
five (5) years by giving six (6) months written notice of the extension to
the
other party. In the event that the term is extended, the terms and conditions
shall remain the same as during the original term.
ARTICLE
2
RENT
SECTION
2.01. Tenant agrees to pay to Landlord, during the entire term of this Lease,
without abatement or set off, base rent in monthly installments, each in the
amount of Six Thousand Nine Hundred Thirty and No/100 Dollars ($6,930.00).
Rent
shall be paid in advance of each month during the term of this Lease, on or
before the last business day of each calendar month, for the next succeeding
month. Any portion of a month shall be on a daily prorated basis.
SECTION
2.02. Tenant shall also pay after thirty (30) days notice, and without
abatement, deductions, or set off, as additional rent hereunder, all sums,
costs, and expenses which Tenant in any other provisions of this Lease agrees
to
pay. In the event of nonpayment of such sums, Landlord shall have (in addition
to all other rights and remedies) all the rights and remedies provided herein
or
by law for nonpayment of rent.
ARTICLE
3
SECURITY
DEPOSIT
SECTION
3.01. None.
ARTICLE
4
IMPOSITIONS
SECTION
4.01. Tenant shall pay as and when due the charges for water, sewer, electrical
power, data lines, telephone service and trash collection.
SECTION
4.02. Rent shall be paid to Landlord without notice or demand. It is the intent
of Landlord and Tenant that all rent payable hereunder shall be absolutely
net
to Landlord, and shall be paid, without abatement, deduction, or set off by
Tenant. Tenant shall be responsible for real estate taxes. Tenant shall also
be
responsible for the taxes on Tenant's personal property.
SECTION
4.03. All payments of rent are to be made to Landlord, at such place as Landlord
shall designate in writing to Tenant. If after initial designation Landlord
desires that rent shall be paid and directed among other parties, then Landlord
shall make such designation in writing to Tenant, otherwise such designation
shall not be effective.
ARTICLE
5
SURRENDER
ON TERMINATION
SECTION 5.01. Tenant shall, on the last day of the term hereof or upon any
earlier termination of this Lease, surrender the Property to Landlord in as
good
condition, reasonable wear and tear excepted, as Tenant received the Property
from Landlord on the first day of the Lease term, free and clear of all
occupancies unless expressly permitted by Landlord in writing, and free and
clear of all liens and encumbrances other than those to which this Lease is
subject.
SECTION
5.02. Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord, and failing to do so,
will
pay as liquidated damages, for the whole time such possession is withheld,
the
monthly rent set forth in Article 2 for the month immediately prior to the
termination; but the provisions of this clause shall not be held as a waiver
by
Landlord of any right of re-entry as hereinafter set forth; nor shall the
receipt of said rent or any part thereof, or any other act in apparent
affirmance of tenancy, operate as a waiver of the right to forfeit this Lease
and the term hereby granted for the period still unexpired, for a breach of
any
of the covenants herein.
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SECTION
5.03. Upon termination of this Lease, title to all permanent improvements made
or constructed by Tenant and located on the Property shall vest in Landlord
under the following terms and conditions. Tenant shall be paid for the cost
of
any permanent improvements made or constructed subsequent to the date of this
Agreement, and Tenant's cost of such improvements shall be disclosed and agreed
upon by amendment to this Lease.
SECTION
5.04. All personal property of Tenant which shall remain on the Property after
the termination of this Lease shall, at the option of Landlord, be deemed to
have been abandoned and may be retained by Landlord as its property or be
disposed of, without accountability, in such manner as Landlord may see fit.
However, Landlord shall also have the right to require Tenant to remove any
such
personal property at Tenant's own cost and expense and to repair any damages
caused by such removal. Upon Tenant's failure to do so upon fifteen (15) days
notice from Landlord, Landlord may cause such personal property to be removed
and charge all cost of removal to Tenant.
SECTION
5.05. The provision of this Article 5 shall survive the expiration or any
termination of this Lease.
ARTICLE
6
INSURANCE
SECTION 6.01. During the term of the Lease, Tenant shall at its sole cost and
expense, keep all its personal equipment and furnishings insured. Landlord
assumes no responsibility for Tenant's personal property and belongings. Tenant
shall insure the buildings covered under this Lease.
SECTION
6.02. In addition to the insurance to be provided and maintained by Tenant
pursuant to Section 6.01 above, Tenant at its sole cost and expense, but for
the
mutual benefit of Landlord and Tenant, shall maintain during the term of this
Lease, personal injury and property damage liability insurance against claims
for personal injury, death, or property damage, occurring in, on, or about
the
Property. Such insurance shall afford minimum single limit protection of not
less than Two Million Dollars ($2,000,000).
SECTION
6.03. Any additional insurance carried by Tenant shall not reduce the insurance
required under this Lease to be carried by Tenant on behalf of Landlord, nor
cause Landlord to become a co-insurer with any other person or
entity.
SECTION
6.04. All insurance provided for in this Article shall be effected under valid
and enforceable policies in form reasonably satisfactory to Landlord, issued
by
insurers of recognized responsibility which are licensed to do business under
the laws of the United States and the State of Arizona. Upon the execution
of
this Lease, and thereafter not less than thirty (30) days prior to the execution
dates of the expiring policies theretofore furnished pursuant to this Article,
one original certificate thereof, bearing notations evidencing the payment
of
premiums or accompanied by other evidence satisfactory to Landlord of such
payment, and further showing Landlord to be listed as an additional named
insured and loss payee on all insurance policies provided for in this Article,
shall be delivered by Tenant to Landlord. Copies
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of
all
said insurance policies provided for in this Article shall also be delivered
to
Landlord upon execution of this Lease and thereafter not less than thirty (30)
days prior to expiration of said policies.
SECTION
6.05. All policies of insurance provided for in Section 6.01 and 6.02 shall
name
Landlord and Tenant as the insureds, as their respective interests may
appear.
SECTION
6.06. Each such certificate shall contain an agreement by the insurer that
such
policy shall not be canceled or modified without at least thirty (30) days
prior
written notice to Landlord.
ARTICLE
7
LANDLORD'S
RIGHT TO CURE
SECTION 7.01. If Tenant shall at any time fail to pay any Imposition in
accordance with the provision of this Lease, or to take out, pay for, maintain,
or deliver any of the insurance policies provided for in Article 6, or shall
fail to make any other payment or perform any other act on its part to be made
or performed under this Lease, including the obligation to maintain and repair
the Property, then Landlord, after thirty (30) days notice to Tenant (or without
notice in case of emergency) and without waiving or releasing Tenant from any
obligation of Tenant contained in this Lease, may (but shall be under no
obligation to):
(a) pay
any
Imposition by Tenant, or
(b) make
any
other payment or perform any other act on Tenant's part to be made or performed
as in this Lease provided, and may enter upon the Property for such purpose
and
take all such action thereon as may be necessary therefor.
SECTION
7.02. All sums so paid by Landlord and all reasonable costs and expenses
incurred by Landlord in connection with the performance of any such act
(together with interest thereon at the maximum interest rate then permitted
by
Arizona law from the respective dates of Landlord's making of each such payment
or incurring of each cost and expense) shall constitute additional rent payable
by Tenant under this Lease and shall be paid by Tenant to Landlord upon written
demand.
ARTICLE
8
TENANT'S
DUTY TO MAINTAIN
SECTION
8.01. Throughout the term of this Lease, Tenant, at its own cost and expense,
will repair, maintain, and take good care of the Property, and appurtenances
therein and every part of and portion of the Property and any sidewalks, parking
lots, driveways, roadways, walls, curbs, and vaults adjoining and/or appurtenant
to the Property and will keep same in good order and condition. Tenant will
neither do or suffer any waste or injury to the Property or any part thereof,
nor make any alteration of the Property without Landlord's prior written
consent.
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SECTION
8.02. Tenant hereby assumes the full and sole responsibility for the condition,
operation, repair, replacement, maintenance, development, and management of
the
Property throughout the entire term of this Lease. Tenant accepts the Property
in the condition existing as of the date of this Lease and acknowledges that
Landlord has not made any representation or warranty as to the condition of
the
Property and the present suitability for the conduct of Tenant's business on
the
Property.
ARTICLE
9
COMPLIANCE
WITH LAWS
Subject
to the provision of Article 23 below:
SECTION 9.01. Throughout the term of this Lease, Tenant at its own cost and
expense, will promptly comply with (a) all present and future laws, ordinances,
orders, rules, regulations, and requirements of every duly constituted
governmental authority or agent, and (b) all orders, rules and regulations
of
the National Board of Fire Underwriters, the Texas Fire Insurance Rating
Organization or any other body exercising similar functions.
SECTION
9.02. Tenant shall likewise observe and comply with the requirements of all
policies of insurance at any time in force with respect to the Property and
of
the insurance companies issuing them.
ARTICLE
10
LIENS
AND
MORTGAGES
SECTION 10.01. Tenant will not create or permit to be created or to remain,
and
will discharge, any lien, encumbrance, or charge which might be or become a
charge on the interest of Landlord under the Lease; provided,
however,
nothing
herein shall require payment by Tenant of any lien or encumbrance created by
Landlord.
SECTION
10.02. If any mechanic's, laborer's or materialman's lien shall at any time
be
filed against the Property or any part thereof, Tenant, if Landlord shall so
require, within ninety (90) days after commencement of foreclosure action
thereon will cause the same to be discharged of record by payment, deposit,
bond, order of a court of competent jurisdiction or otherwise. If Tenant shall
fail to cause such lien to be discharged within such period, then, in addition
to any other right or remedy which Landlord may have under this Lease or
otherwise, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge
of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs, and allowances, and
recover such sums from Tenant including the cost of discharge by deposit or
bond, plus interest, as herein above provided.
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ARTICLE
11
SALE
OF
LANDLORD'S INTEREST
SECTION 11.01. In the event of any sale or exchange of the Property by Landlord
and assignment by Landlord of this Lease, Landlord shall be relieved of all
liability under all of its covenants and obligations contained in or derived
from this Lease arising out of any act, occurrence or omission relating to
the
Property of this Lease occurring after the consummation of such sale or
exchange.
ARTICLE
12
RESTRICTED
LAWFUL USE
SECTION
12.01. Tenant will not use or allow the Property or any part thereof to be
used
or occupied for any unlawful purpose or in violation of any certificate of
occupancy or certificate of compliance covering or affecting the use of the
Property or any part thereof, and Tenant will not suffer any act to be done
or
any condition to exist on the Property or any part thereof, or any article
to be
brought thereon, which may be dangerous, unless safeguarded as required by
law,
or which, in law, constitutes a nuisance, public or private, or which may make
void or voidable any insurance then in force with respect thereto, unless
consented to by Landlord, in writing.
ARTICLE
13
HAZARDOUS
MATERIALS
SECTION 13.01. Tenant shall, at its expense, comply with all applicable laws,
regulations, rules, and orders, regardless of when they become or became
effective, including without limitation those relating to health, safety, noise,
environmental protection, waste disposal, and water and air quality, and furnish
satisfactory evidence of such compliance upon request of Landlord. Should any
discharge, leakage, spillage, emission, or pollution of any type occur upon
or
from the leased Property, due to Tenant's use and occupancy thereof, Tenant,
at
its expense, shall be obligated to clean the Property to the satisfaction of
Landlord and any governmental body having jurisdiction thereover. Tenant agrees
to indemnify, hold harmless, and defend Landlord against all liability, cost,
and expense (including without limitation, any fines, penalties, judgments,
litigation costs, and attorney's fees) incurred by Landlord as a result of
Tenant's breach of this Section 13.
ARTICLE
14
LANDLORD'S
RIGHT TO INSPECT AND ENTER
SECTION
14.01. Tenant will permit Landlord, and its authorized representatives, to
enter
the Property at all reasonable times during usual business hours for the purpose
of (a) inspecting the same, and (b) making any repairs thereto and performing
any work therein that may be necessary by reason of Tenant's default under
this
Lease. Nothing herein shall imply any duty upon the part of Landlord to do
work
which Tenant is required to perform, and performance thereof by Landlord shall
not constitute a waiver of Tenant's default.
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SECTION
14.02. Landlord shall upon twenty four (24) hours oral notice have the right
to
enter the Property at all reasonable times during usual business hours for
the
purpose of showing the same to prospective purchasers or mortgagors
thereof.
SECTION 14.03. Landlord may, during the progress of any work performed by
Landlord, keep and store upon the Property all necessary materials, tools,
supplies, and equipment. Landlord shall not be liable for inconvenience,
annoyance, disturbance, loss of business, or other damage of Tenant or any
subtenant reasonably and necessarily required by the making of such repairs
or
the performance of any such work, or on account of bringing materials, tools,
supplies, and equipment into or through the Property during the course thereof,
and the obligations of Tenant under this Lease shall not be affected
thereby.
ARTICLE
15
TENANT
TO
INDEMNIFY
SECTION 15.01. Tenant will pay and discharge, and indemnify, defend, and save
harmless Landlord against and from costs, charges, and expenses, including
reasonable attorneys' fees, which may be imposed upon or incurred by or asserted
against Landlord and/or against the Property by reason of any of the following
occurring during the term of this Lease, except as and to the extent (i) the
same may arise from the negligence of Landlord or (ii) the same relate to the
express responsibilities of Landlord hereunder:
(a) Any
work
or thing done or suffered by Tenant in, on, or about the Property, or any part
thereof;
(b) Any
use,
possession, occupation, condition, operation, maintenance, or management of
the
Property;
(c) Any
negligence on the part of Tenant or any of its agents, contractors, servants,
employees, licensees, or invitees;
(d) Any
accident, injury or damage to any person or property occurring in, on, or about
the Property or any part thereof;
In
case
any action or proceeding is brought against Landlord by reason of any such
claim, Tenant, upon written notice from Landlord shall, at Tenant's expense,
resist or defend such action or proceeding by counsel selected by Tenant and
reasonably satisfactory to Landlord. Tenant may settle any such claim at any
time on such items as it may find acceptable.
ARTICLE
16
DAMAGE
OR
DESTRUCTION
SECTION
16.01. In case of casualty to the Property resulting in damage or destruction,
Tenant will promptly give written notice thereof to Landlord. Tenant, at its
sole cost and expense, whether or not such casualty loss is covered by insurance
and whether or not the insurance proceeds, if any, shall be sufficient for
the
purpose, shall restore, repair, replace, or
7
rebuild
the same as nearly as possible to its value, condition, and character
immediately prior to such damage or destruction.
SECTION
16.02. No destruction of or damage to the Property or any part thereof by fire
or any other casualty, irrespective of whether such destruction or damage may
occur before, on, or after the date of the commencement of the term of this
Lease, shall permit Tenant to surrender this Lease or shall relieve Tenant
from
its liability to pay the full net rent and other charges payable under this
Lease, and Tenant waives any rights now or hereafter conferred upon it, by
statute or otherwise, to quit or surrender this Lease or the demised Property
or
any part thereof, or to any suspension, diminution, abatement, or reduction
of
net rent on account of such destruction or damage. Notwithstanding the
foregoing, in the event that the Property or a significant portion thereof
(exclusive of buildings and other improvements thereon) are materially damaged
or destroyed by a natural disaster or other casualty (other than fire) such
that
they cannot economically or feasibly be used by Tenant in the conduct or
operation of its business, irrespective of whether such damage or destruction
may occur before, on, or after the date of the commencement of the term of
this
Lease, Tenant may at its option terminate this Lease upon thirty (30) days
prior
written notice to Landlord given with fifteen (15) days of such damage or
destruction. Upon such termination, neither party shall have any further
obligation to the other except with respect to accrued but unpaid liabilities
under the Lease to the date of termination.
ARTICLE
17
CONDEMNATION
SECTION
17.01. Wherever used in this Article 17, the following words shall have the
definitions and meaning hereinafter set forth:
(a) "Condemnation":
any
action or proceeding brought for the purpose of any taking of the fee of the
Property or any part thereof or interest therein (including the leasehold estate
of Tenant in the Property) by competent authority as a result of the exercise
of
the power of eminent domain, including a voluntary sale to such authority either
under threat of condemnation or while such action or proceeding is
pending.
(b) "Vesting
Date":
the
event and date of vesting title to the fee of the Property or any part thereof
or interest therein, in the competent authority pursuant to
Condemnation.
SECTION 17.02. If all of the Property shall be taken in Condemnation, this
Lease
shall terminate at the Vesting Date and the net rent under this Lease shall
be
apportioned to the date of such termination.
SECTION 17.03. If less than all of the Property shall be taken in Condemnation,
Landlord and Tenant mutually shall determine, within a reasonable time after
the
Vesting Date, whether the remaining buildings and improvements thereon (after
necessary repairs and reconstruction to constitute them a complete architectural
unit) can economically and feasibly be used by Tenant. If it is determined
that
the remaining Property cannot economically and feasibly
8
by
used
by Tenant, taking into account minimum space requirements for the conduct and
operation of its business, Landlord or Tenant, at their respective election,
may
terminate this Lease on thirty (30) days notice after such determination, and
the net rent and other charges payable by Tenant under this Lease shall be
apportioned to the date of termination. Thereafter, neither party shall have
any
continuing obligation to the other hereunder.
SECTION
17.04. In the event of Condemnation, the entire Condemnation award shall be
paid
to Landlord.
SECTION
17.05. If this Lease shall not terminate as provided in Section 17.02, the
base
rent thereafter required to be paid shall be reduced by a fraction, the
denominator of which shall be the total square footage of the Property prior
to
Condemnation, and the numerator of which shall be the denominator minus the
total square footage of the Property after Condemnation.
ARTICLE
18
ASSIGNMENT
SECTION 18.01. Tenant may not sell, transfer, assign, sublease, license, or
transfer all or any part of its rights under this Lease without the prior
written consent of Landlord. Landlord's consent to any such assignment shall
not
be unreasonably withheld; provided,
however,
that it
shall be a condition to Landlord's consent that the proposed transferee has
the
financial ability and business experience to own and operate the business
located on the Property and has a good business reputation. Upon any such
permitted assignment or transfer, Tenant (and any previous assignee) shall
remain fully liable hereunder and shall not be released from the performance
of
any remaining obligations of Tenant under his Lease during the remainder. Tenant
shall deliver to Landlord not later than five (5) days before the effective
date
thereof, a duplicate original of such assignment together with the assumption
agreement by the assignee.
SECTION
18.02. Any assignment or sublease which may hereafter be made by Tenant with
Landlord's approval shall provide that it is expressly made subject to the
terms, covenants, provisions, and conditions of this Lease and is subordinate
thereto, and shall prohibit prepayment of rent thereunder (including security)
in an amount exceeding three (3) months rent. Landlord will issue
non-disturbance agreements to subtenants requesting same in writing, provided
their respective subleases are commercially reasonable terms.
SECTION 18.03. Tenant hereby assigns to Landlord, effective upon the occurrence
of any Event of Default hereunder, and so long as such Event of Default remains
uncured, as collateral security for the performance of all obligations of Tenant
under this Lease, any sublease created by Tenant and each and every amendment,
modification, or extension thereof. In no event shall such assignment impose
upon Landlord any duty or obligation to perform any of the obligations of Tenant
as sub-landlord under any such leases or subleases. After default by Tenant,
Landlord may collect the rents and subrents from any and all subtenants or
occupants and apply the net amount collected to the net rent under this Lease,
but no such collection by Landlord will be deemed to be a waiver of any
agreement, term, covenant, or condition of this Lease by Landlord, nor the
acceptance by Landlord of any subtenant or occupant, as Tenant.
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SECTION
18.04. Notwithstanding any provision of this Article 18, Tenant's interest
in
this Lease may be assigned with Landlord's written consent; provided,
however,
upon
any such assignment, Tenant (and any previous assignee) shall remain fully
liable hereunder and shall not be released from the performance of any remaining
obligations of Tenant under this Lease during the remainder of the
term.
ARTICLE
19
TENANT'S
DEFAULTS
SECTION
19.01. The occurrence of any one or more of the following events (herein
sometimes called "Events
of Default")
shall
constitute a material default and breach of this Lease by Tenant:
(a) Failure
to make the due and punctual payment of any rent, or to pay any other sums
required to be paid by Tenant under this Lease when and as the same shall become
due and payable;
(b) Failure
by Tenant to perform or comply with any of the covenants, agreements, terms
or
conditions contained in this Lease other than those referred to in the foregoing
subdivision (a), and the continuation of such default for a period of thirty
(30) days after written notice thereof form Landlord to Tenant (provided, that
if Tenant proceeds with due diligence during such thirty (30) day period to
cure
such default and is unable by reason of the nature of the work involved, to
cure
the same within the said thirty (30) days, its time to do so shall be extended
for such additional period as shall be necessary to cure the same);
(c) The
filing by Tenant of a voluntary petition in bankruptcy or the adjudication
of
Tenant as a bankrupt or insolvent, or taking by Tenant of the benefit of any
relevant debtors or the filing by Tenant of any petition or answer seeking
any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or future federal or state
bankruptcy or insolvency statutes or other consent to or acquiescence in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or the making by Tenant of any general
assignment for the benefit of creditors; or
(d) The
filing against Tenant of a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under
any
present or future federal, state or other statute, law, or regulation which
petition shall remain undismissed or unstayed for an aggregate of sixty (60)
days, or if any trustee, receiver, or liquidator of Tenant, or of all or any
substantial part of its properties, shall be appointed without the consent
or
acquiescence of Landlord and such appointment shall remain unvacated or unstayed
for an aggregate of sixty (60) days.
In
the
event of any such Event of Default, this Lease and the term herein stated and
all rights of Tenant under this Lease at the option of Landlord shall expire
and
terminate.
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SECTION
19.02. Upon any such termination of this Lease, Tenant shall quit and peacefully
surrender the Property to Landlord and the buildings and improvements thereon
shall automatically be and become the property of Landlord free and clear of
any
claims of Tenant. At any time on or after such termination, Landlord may without
further notice, enter upon the Property by force, summary proceedings,
ejectment, or otherwise, and dispose and remove Tenant therefrom.
SECTION
19.03. In such event of termination, Landlord shall be entitled to accelerate
the rent to recover from Tenant all unpaid installments of rent and other sums
due and owing under this Lease for the remainder of the term and all other
damages incurred by Landlord by reason of Tenant's default, including but not
limited to any or all of the following:
(a) The
cost
of recovering possession of the Property, including attorney's fees and court
costs;
(b) Any
other
amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under this Lease or which in
the
ordinary course of things would be likely to result therefrom; and
(c) Any
other
amounts and remedies permitted by law.
All
remedies are cumulative and are not alternate or singular.
SECTION 19.04. At any time (a) written fifteen (15) days prior to the expiration
of the term of this Lease, or (b) after Landlord or Tenant shall have been
served any notice of termination of this Lease, but prior to the date of
termination, or (c) after Landlord shall have commenced a proceeding to recover
possession of the Property, but prior to the termination of this Lease, all
subleases theretofore executed by or assigned to Tenant and the rents payable
thereunder, at the option of Landlord (such option to be exercised by notice
to
Tenant), shall be deemed assigned and transferred by Tenant to Landlord. Such
assignment and transfer shall be effected without execution by Tenant of any
instrument. However, Tenant at Landlord's request, shall execute, acknowledge
and deliver to Landlord an instrument or instruments, in recordable form,
confirming such assignment and transfer, and in the event that Tenant shall
fail
or refuse to execute, acknowledge, or deliver such instrument, Landlord, in
addition to any other rights and remedies, may as the attorney-in-fact of
Tenant, execute, acknowledge and deliver it, and Tenant hereby irrevocably
nominates, constitutes and appoints Landlord Tenant's proper and legal
attorney-in-fact for such purpose, coupled with an interest, hereby ratifying
all that Landlord may do in such capacity.
SECTION 19.05. Tenant, for and on behalf of itself and all persons claiming
through or under Tenant waives any and all right of redemption or reentry or
repossession or to restore the operation of this Lease in case Tenant shall
be
dispossessed by a judgment or by warrant of any court or judge or in case of
expiration or termination of this Lease. The terms "enter", "reenter", "entry",
or "reentry", as used in this Lease, are not restricted to their technical
legal
meaning.
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SECTION
19.06. No failure by Landlord to insist upon the strict performance of any
covenant, agreement, term, or condition of this Lease or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a wavier of
any
such breach or of such covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Lease to be performed or complied with
by
Landlord or Tenant, and no breach thereof, shall be waived, altered, or
modified, except by a written instrument executed by the party to be charged
therewith. No waiver of any breach shall affect or alter this Lease, but each
and every covenant, agreement, term, and condition of this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
breach thereof.
SECTION
19.07. In the event of any breach by Tenant of any of the covenants, agreements,
terms, or conditions contained in this Lease, Landlord shall be entitled to
enjoin such breach and shall have the right to invoke any right and remedy
allowed at law or in equity for such breach as though re-entry, summary
proceedings, and other remedies were not provided for in this Lease.
ARTICLE
20
END
OF
TERM, INTEREST ON DEFAULT, AND LATE CHARGES
SECTION 20.01. All rent in arrears and all amounts collectible hereunder shall
bear interest at the lessor of (i) fifteen percent (15%) per annum, or (ii)
the
maximum rate then permitted by Arizona law, from their respective due dates
until paid; provided,
that
this shall in no way limit, lessen, or affect any claim for damages by Landlord
for any breach or default by Tenant.
SECTION 20.02. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder will cause Landlord to incur
costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Landlord by
the
terms of any mortgage or trust deed covering the Property.
ARTICLE
21
SEVERABILITY
SECTION 21.01. If any term of provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or unacceptable,
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 held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
12
ARTICLE
22
NOTICES
AND CONSENTS
SECTION
22.01. Any notice, request, demand, statement, or consent herein required or
permitted to be given by either party to the other hereunder shall be in writing
and shall be deemed to have been sufficiently and effectually given if signed
by
or on behalf of the party giving the notice and mailed by registered or
certified prepaid post, return receipt requested, addressed to the
other;
|
If
to Landlord:
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|||
|
Southwest
Premier Properties, L.L.C.
|
|||
|
c/o
Xxxx Xxxxxxx, Swift Aviation Group, Inc.
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|||
|
(by
U.S. Mail)
|
(by
Express Courier)
|
||
|
X.X.
Xxx 00000
|
0000
X. Xxx Xxxxx Xxxx
|
||
|
Xxxxxxx,
XX 00000
|
Xxxxxxx,
XX 00000
|
||
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And
if to Tenant:
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|||
|
Central
Freight Lines, Inc.
|
|||
|
Attn:
President
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|||
|
00000
X. Xxxx Xx.
|
|||
|
Xxxxx
000
|
|||
|
Xxxxxxxxxx,
XX 00000
|
|||
Any
such
notice given as aforesaid shall be conclusively deemed to have been given and
received, if mailed by U.S. mail properly addressed and postage prepaid, three
(3) business days next following the day on which such notice was mailed. Either
party may, from time to time, furnish to the other notice of the address or
change of address to which notices are to be given to it hereunder.
SECTION
22.02. Wherever any consent is required under this Lease, the same shall not
be
unreasonably withheld.
ARTICLE
23
CONDITION
OF LEASED PROPERTY
SECTION 23.01. Tenant represents that, except as expressly provided in this
Article 23, the Property, all surface conditions thereof, and the present uses
thereof, have been examined by Tenant and that Tenant accepts the same in the
condition or state in which they or any of them may be upon the date of this
Lease, without any representation or warranty, express or implied, in fact
or by
law, by Landlord and without recourse to Landlord, as to the nature, condition
or usability thereof or the use or uses to which the Property or any part
thereof may be put.
13
ARTICLE
24
COVENANT
OF QUIET ENJOYMENT
SECTION 24.01. Except as provided in Articles 7 and 14, Landlord covenants
that
Tenant, upon paying the rent and all other charges herein provided for and
observing and keeping all covenants, agreements, and conditions of this Lease
on
its part to be kept, shall quietly have and enjoy the Property during the term
of this Lease, without hindrance or molestation by Landlord or anyone claiming
by or through Landlord.
SECTION
24.02. In case Landlord or any successor owner shall convey or further lease
the
Property, all liabilities and obligations on the part of Landlord, as Landlord,
under this Lease occurring after such conveyance shall terminate upon such
conveyance, and thereupon all such liabilities and obligations will be binding
upon the grantee or lessee as successor Landlord.
ARTICLE
25
BROKERS
SECTION
25.01. Landlord and Tenant each represent and warrant to each other that no
agent or broker represents them in connection with this Lease.
ARTICLE
26
CAPTIONS
SECTION 26.01. The captions of this Lease are for convenience and reference
only
and in no way define, limit, or describe the scope or intent of this Lease
nor
in any way affect this Lease.
ARTICLE
27
SUCCESSORS
SECTION 27.01. The covenants and agreements herein contained shall bind and
inure to the benefit of Landlord and Tenant and their respective heirs, legal
representatives, successors and assigns, except as otherwise provided
herein.
ARTICLE
28
DELAYING
CAUSES
SECTION 28.01. If either party is delayed in the performance of any covenant
of
this Lease because of any of the following causes: unusual action of the
elements, war, riot, strikes, lockouts, labor disputes, inability to procure
or
general shortage of labor, materials or merchandise in the normal channels
of
trade, delay in transportation, delay in inspections, governmental action or
inaction where action is required, or any cause beyond the reasonable control
of
the party so obligated, whether similar or dissimilar to the foregoing (except
for any delay on account of financial inability), then such performance shall
be
excused for the period of the delay and the period such performance shall be
extended for a period equivalent to the period
14
of
such
delay, except that the foregoing shall in no way affect (i) Tenant's obligation
to pay rent or other monetary obligations hereunder, or (ii) the length of
the
term.
ARTICLE
29
NO
PARTNERSHIP
SECTION
29.01. Nothing contained in this Lease shall be construed as creating any type
or manner of partnership, joint venture, or joint enterprise with or between
Landlord and Tenant.
ARTICLE
30
MISCELLANEOUS
SECTION
30.01. This Lease shall be construed and enforced in accordance with the laws
of
the State of Arizona.
SECTION
30.02. Time is of the essence of this Lease.
ARTICLE
31
FURTHER
INSTRUMENTS
SECTION
31.01. Upon request of Tenant or Landlord, the parties hereto shall execute
and
deliver such further instruments, including without limitation a memorandum
of
lease if requested by Tenant, in form for recording as may be necessary to
effect this Lease and the covenants and obligations of the parties
hereto.
SECTION 31.02. This Agreement is the entire agreement and understanding of
the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous representations, negotiations, undertakings and
agreements, written or oral, among any of the parties. No representation,
inducement, agreement, promise, understanding, or waiver altering, modifying,
taking from or adding to the terms and conditions hereof, shall have any force
or effect unless the same is in writing and validly executed by all the parties
hereto.
ARTICLE
32
SUBORDINATION
OF LEASE TO MORTGAGES
SECTION 32.01 This Lease shall be subject and subordinate at all times to the
lien of existing mortgages and of mortgages which hereafter may be made a lien
on the Property. Although no instrument or act on the part of Tenant shall
be
necessary to effectuate such subordination, Tenant will nevertheless execute
and
deliver such further instruments subordinating this Lease to the lien of any
such mortgages as may be desired by the mortgagee. Tenant hereby irrevocably
appoints Landlord as its attorney-in-fact to execute and deliver any such
instrument for Tenant; provided,
however,
and
notwithstanding the foregoing provisions hereof, upon foreclosure of the
mortgage with the mortgagee succeeding to the rights of Landlord, Tenant shall,
at the option of said mortgagee, attorn to the mortgagee as
follows:
15
(a) Tenant
shall be bound to the mortgagee under all the terms of the Lease for the balance
of the term hereof remaining with the same force and effect as if the mortgagee
were Landlord under the Lease, and Tenant hereby attorns to the mortgagee as
its
Landlord, such attornment to be effective and self-operative, without the
execution of further instrument on the part of either of the parties hereto,
and
immediately upon the mortgagee succeeding to the interest of Landlord under
this
lease and having given written notice of the same to Tenant. The respective
rights and obligations of Tenant and of the mortgagee upon such attornment
shall
to the extent of the remaining term of the lease be the same as now
set.
(b) The
mortgagee shall be bound to Tenant under all of the terms of this Lease, and
Tenant shall, from and after such event, have the same remedies against the
mortgagee for the breach of an agreement contained in this Lease that Tenant
might have had under this Lease against Landlord hereunder. In no event,
however, shall the mortgagee be liable for any act or omission of any prior
Landlord, be subject to any offsets or defenses which Tenant might have against
any prior Landlord, or be bound by any rent or additional rent which Tenant
might have paid to any prior Landlord for more than the current
month.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
16
IN
WITNESS WHEREOF, the parties hereto have executed this Lease effective as of
the
day and year first above written.
|
TENANT:
|
||
|
CENTRAL
FREIGHT LINES, INC.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxx X. Xxxxx | |
|
Title:
|
President and Chief Executive Officer | |
|
LANDLORD:
|
||
|
SOUTHWEST
PREMIER PROPERTIES, L.L.C.
|
||
|
By:
|
/s/ Xxxxx Xxxxx | |
|
Name:
|
Xxxxx Xxxxx | |
|
Title:
|
Manager | |
