EXHIBIT 10.29
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
corporation ("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, consisting of approximately 5,590 square feet of space consisting
of the entire 2nd floor space along with the 1st floor front office, 1st
floor closet, stair landing and stairwell together with any or all
additional space used in connection with Tenant's business (the
"Premises") in The Citadel (the "Center") along with six (6) covered
parking spaces numbered 1 through 6, 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 July 31, 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).(e)
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 $111,800.00 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 six (6) 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 an office and for no other
purpose whatsoever.
(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 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.
(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, at Tenant's sole cost and expense, shall 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.
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., except that Tenant shall not pay any portion of
any costs related solely to the operation and/or maintenance of the
chiller tower which does not serve the Premises (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 acknowledges that the utilities serving the
Premises are metered along with the utilities for the entire building of
which Premises are a part of. Tenant shall be solely responsible to pay
their proportionate share of said utilities (water & electrical) metered
to said building within ten (10) days of receipt of billing from
Landlord. 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. 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. 00000 Xxxxx Xxxxxxxxxx Xxxx
an Arizona limited liability company Xxxxxxxxxx, Xxxxxxx 00000
By: Prime Pinnacle Peak Properties,
Inc., an Arizona corporation,
Its Managing Member
By: ____________________________
Xxxxx X. Xxxxxxx, President
TENANT: ADDRESS:
Giant Industries Arizona, Inc. 00000 Xxxxx Xxxxxxxxxx Xxxx
an Arizona corporation Xxxxxxxxxx, XX 00000
By: _________________________
Its: _________________________
