FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE, made and entered into as the 1st day of
April, 2000 by and between Missouri Falls Partners, an Arizona Partnership,
hereinafter referred to as "landlord", and CSK Auto, Inc. and Arizona
corporation as "Tenant".
WHEREAS, Landlord leased certain premises to Tenant, known as Suite 108
consisting of approximately 3,296 Rentable Square Feet in the Missouri Falls
Building, at 000 X. Xxxxxxxx Xxx., in the City of Phoenix, County of Maricopa,
State of Arizona, pursuant to that certain lease dated this 31st day of July
1997; and as follows
WHEREAS, Landlord and Tenant wish to amend said Lease,
NOW THEREFORE, in consideration of these presents and the mutual covenants
contained hereinafter, and for such other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereto agree that said Lease shall be and the same is hereby amended as follows:
1. The following shall be inserted as Paragraph 2 of Article 1 "Leased
Even though the Base Rent and other charges (the "Rent") set forth in
this Lease is or may be calculated on a per square foot basis, the
parties specifically acknowledge and agree that the amount of Rent
which the Tenant is obligated to pay is for the space which it is
leasing, regardless of the actual size of that space. (The Tenant
acknowledges the Landlord's use of a load factor in the calculation
of the square footage.) Therefore, if it is found that the actual
square footage of the Demised Premises is more or less than the
approximate square footage set forth in this Lease Agreement, the
parties specifically understand and agree that the amount of Rent to
be paid by the Tenant on a monthly basis shall not be adjusted either
upward or downward. Furthermore, the Tenant's proportionate share, as
defined in Article V, Section 3, shall not be adjusted either upward
or downward if it is found that the Demised Premises contain more or
less than the approximate square footage set forth in this Lease.
2. In Article 3 of the Lease, "Term" the lease is extended to October
31, 2006 which shall be coterminous with the lease for Suite 400.
3. In Article 5 of the Lease, "Rental, Definitions", the rent schedule
for the extended term shall be as follows:
APRIL 1, 2000 THROUGH OCTOBER 31, 2001
$20.00 PSF or $5,493.33 per month
NOVEMBER 1, 2001 THROUGH OCTOBER 31, 2006
From November 1, 2001 through the end of the lease term, Base Rent per
square foot for the Demised Premises shall be adjusted to an amount
equal to the Base Rent in effect on October 31, 2001 multiplied by the
lesser of (i) 115%, and (ii) the Cumulative CPI Factor for the period
from November 1, 1996 through October 31, 2001. There shall be no
decrease in the Base Rent as a result of the adjustment contemplated
by this paragraph of the Addendum.
As used herein "Cumulative CPI Factor" shall mean a fraction, the numerator
of which is the Current Number and the denominator of which is the Base
Number. As used in this definition, the following capitalized terms shall
mean: "Base Number" shall mean the Consumer Price Index for All Urban
Consumers, United States City Average, All Items (1982-84=100), issued by
the Bureau of Labor Statistics of the United States Department of Labor
(hereinafter called the "Index") for the month immediately prior to the
period in question; and "Current Number" shall mean the latest Index
published for the last month of the period in question by the Bureau of
Labor Statistics or other governmental agency then publishing the Index (or
if the Index is no longer published, the index of consumer prices
reasonably deemed by Landlord to be comparable to the Index), after making
such adjustments as may be prescribed by the agency publishing the same or
as otherwise so deemed to be required to compensate for changes subsequent
to January 1, 1984 in the base, items included or method of compilation
4. In Paragraph 3 of Article 5 of the Lease "Rental, Definitions", the "Base
Operating Costs" shall be the Operating Costs for the year 1997.
Landlord agrees to pay Tenant within sixty (60) days of the full execution
of this Lease, a construction allowance in the amount of Five Dollars
($5.00) per rentable square foot or Sixteen Thousand Four Hundred Eighty
and No/100 ($16,480.00) Dollars for improvements to the space.
6. All other terms and conditions of the Lease as amended shall remain the
IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument by proper
persons thereunto duly authorized so to do on the day and year first hereinabove
CSK AUTO, INC., Missouri Falls Partners, an
an Arizona corporation Arizona partnership
By: Insignia/ESG, a
Delaware corporation as Agent
By: /s/ Xxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxx
XXX X. XXXXXX XXXXXX X. XXXX
Its: SENIOR VICE PRESIDENT Its: DIRECTOR
BASE YEAR LEASE
DATE: July 31, 1997
LANDLORD: Missouri Falls Partners, an Arizona partnership
TENANT: CSK Auto, Inc., an Arizona corporation
I. LEASED PREMISES
The leased premises (the "Leased Premises") are as shown on Exhibit "A"
attached hereto are further defined as:
Xxxxx 000, located on the 1st floor of the Missouri Falls Building at
000 X. Xxxxxxxx Xxx., Xxxxxxx, XX 00000
The Landlord hereby leases to the Tenant, and the Tenant hereby leases
from the Landlord, the Leased Premises, upon the terms and conditions set forth
in this Lease (the "Lease").
This Lease is for a term of Thirty-two (32) months commencing August 1,
1997 (the "Commencement Date") and terminating March 31, 2000, (The "Termination
If the Leased Premises or the Building in which the Leased premises are
located are not completed at the Commencement Date and possession of the Leased
Premises is not delivered to Tenant by the Commencement Date, the Commencement
Date shall be the first day of the calendar month following the delivery of the
Leased Premises to Tenant. If the Leased Premises are delivered to Tenant and
Tenant accepts possession on any day earlier than the Commencement Date, the
rental for the interim shall be paid by Tenant on a prorata basis, but such
earlier taking of possession shall not change the Termination Date of this
IV. SECURITY DEPOSIT
Tenant has paid Landlord at the execution hereof, the amount of N/A
($ N/A ) as security for the performance by Tenant of the terms hereof, which
amount shall be returned to Tenant at the Termination Date if Tenant has
discharged its obligations to Landlord in full pursuant to this Lease and all
The foregoing security deposit, at the election of the Landlord, may be
forfeited to and retained by Landlord as and for its full damages, or at the
election of the Landlord, may be applied and credited in reduction of any loss
and/or damages sustained by Landlord at any time by reason of the occurrence of
any breach, nonperformance of, or default of, Tenant, under this Lease without
loss, waiver or exclusion of any other or additional rights, recourse or
remedies Landlord may have for such occurrence, whether at law, in equity or
under the terms of the Lease. In the event Landlord applies any or all of the
foregoing security deposit to the correction of any breach or default of this
Lease by Tenant, then Tenant agrees to, within five (5) days notice by Landlord
of Landlord's so doing, replenish said security deposit to its full amount for
the purposes hereinabove specified. Tenant hereby acknowledges that the
foregoing security deposit need not be held in any trust account.
V. RENTAL, DEFINITIONS
Tenant agrees to pay as base rental Five thousand eighty-one and 33/100
($5,081.33) per month (the "Base Rent") for each and every month of the Lease
(plus any excise, privilege or sales taxes levied on the rentals or the receipt
thereof, except Landlord's income tax), payable in advance, without offset or
deduction, on the first day of each month commencing with the Commencement Date
of the Lease.
The Base Rent shall be subject to adjustment each calendar year to
compensate for increases in Landlord's "Operating Costs" (as hereinafter
defined). However, in no event, shall Tenant's Base Rent be less than the Base
Rent specified herein.
Landlord's "Base Operating Cost" shall be the Operating Costs for the
calendar year during which the Commencement Date occurs.
"Operating Costs" shall be determined on an accrual basis for each
calendar year by taking into account, on a consistent basis, all costs of
management, maintenance, and operation of the Building, including but not
limited to the costs of cleaning, utilities, air conditioning and heating,
plumbing, elevator, insurance, ground rent, landscaping costs and the cost of
improvements installed to reduce the above-listed operating costs together with
interest at the Prime Rate (as hereinafter defined) on the unamortized portion
of such cost, amortized over such reasonable period as Landlord shall determine,
and all other costs which can properly be considered operating expenses incurred
in the management, maintenance and operation of the Building.
The Operating Costs shall be determined for each calendar year. If the
Operating Costs for any calendar year exceed the Base Operating Cost, Tenant's
rent for said calendar year shall be increased by an amount equal to Tenant's
"Proportionate Shares" (as hereinafter defined) of such excess which increased
rental for such calendar year Tenant agrees to pay to Landlord in accordance
with the statements rendered.
Each calendar year Landlord may elect to require that the rental be
adjusted for that year effective January 1 on the basis of Landlord's estimates
of increases or decreases in Operating Costs, which adjusted rental Tenant
agrees to pay in accordance with the statements rendered. A final adjustment of
the rental for each calendar year shall be made the following year based upon
the final Operating Costs, determined as herein provided and examined by
Landlord's regularly employed accountants. Appropriate fair adjustments shall be
made for costs which vary with occupancy and where tenants pay costs that in
other leases are paid by landlord. In no event, however, shall Tenant's rent be
less than the Base Rent specified above.
Tenant hereby agrees to pay, as additional rent, Tenant's Proportionate
Share of any Real and Personal Property taxes (as hereinafter defined) assessed
or levied for any tax year (the "Tax Year") or portion thereof occurring during
the term of this Lease in excess of the base taxes. If the Real and Personal
Property taxes for any Tax Year are lower than the Base Taxes, Tenant shall not
be entitled to any refund whatsoever.
After Landlord has received the tax xxxx(s) for each Tax Year, Landlord
shall furnish Tenant with a written statement of the amount due as Tenant's
Proportionate Share of Real and Personal Property taxes in excess of the Base
Year Taxes, and within thirty (30) days of the date of such statement, Tenant
shall pay the amount due in one lump sum. Alternatively, Landlord shall have the
right to estimate Tenant's Proportionate Share of Real and Personal Property
taxes in excess of the Base Year Taxes, which sums Tenant agrees to pay in
accordance with the statements rendered, in which event a final annual
adjustment shall be made based upon the Real and Personal Property taxes
actually assessed or levied. The failure of Landlord to send Tenant any such
statement shall not constitute a waiver by Landlord of its right to require
Tenant to pay its Proportionate Share of such excess. Any fractional Tax Year in
the first or final year of the Lease term shall be treated proportionately on a
three hundred sixty (360)-day year basis.
For the purposes of this Paragraph V. Rental, Definitions, the following
terms shall have the following meanings:
1. "Tax Year" shall mean the twelve (12) month period employed for real
and personal property taxation purposes by each of the taxing authorities in the
State of Arizona.
2. "Real and Personal Property taxes" shall mean and include a) all
real property taxes and personal property taxes, charges and general and special
assessments which are levied or assessed upon or with respect to the Building
and any improvements, fixtures, and equipment and all other personal property of
Landlord located on, in or about the Building and/or used in connection with the
operation thereof and b) all taxes which shall be levied or assessed in addition
to or in lieu of such real or personal property taxes, but shall not include any
net income, franchise, capital stock, estate or inheritance taxes.
3. Tenant's "Proportionate Share" shall mean the ratio, expressed as a
percentage, of the rentable area of the Leased Premises to the rentable area of
the Building, which the parties hereby stipulate to be one one hundreths and
seventy-eight percent (1.78%).
4. As used in this Lease, the term "Building" includes the building
and/or buildings and adjoining parking areas, if any, and the land and/or air
space which is the site and grounds for such buildings and parking areas,
regardless of the name under which such buildings may be known.
5. As used in this Lease, the term "Prime Rate" shall mean the sum of
(a) that rate of interest, charged by the Bank One, a national banking
association (or any successor to the business of such bank), and announced by
such bank, from time to time, as its "prime rate," and (b) two (2) percentage
points above the annual rate of interest specified in clause "(a)", immediately
6. "Base Taxes" shall be the Real and Personal Property taxes assessed
or levied for the calendar year in which the Commencement Date occurs.
VII. REPAIRS AND ALTERATIONS
Landlord agrees to make all necessary repairs to the exterior walls,
exterior doors, windows and corridors of the Building. Landlord agrees to keep
the Building in a clean, neat and attractive condition. Landlord agrees to keep
all building standard equipment such as elevators, plumbing, heating, air
conditioning and similar equipment in good repair, but Landlord shall not be
liable or responsible for breakdowns or temporary interruptions in service when
reasonable efforts are used to restore service.
Tenant agrees that it will pay for the cost of all repairs to the Leased
Premises not required above to be made by Landlord and be responsible for all
redecorating, remodeling, alteration and painting required by it during the term
of this Lease. Tenant shall pay for any repairs to the Leased Premises, or the
Building, made necessary by any negligence or carelessness of Tenant, its
employees or invitees. Tenant agrees to maintain the Leased Premises in a clean,
neat and sanitary condition.
Tenant may place partitions and fixtures and make improvements and other
alterations in the interior of the Leased Premises at Tenant's expense,
provided, however, that prior to commencing any such work Tenant shall first
obtain the written consent of Landlord to the proposed work and Landlord shall
have the right to review and approve all plans. Landlord may require that said
work be done by Landlord's own employees or under Landlord's direction but at
the expense of Tenant, and Landlord may, as a condition to consenting to such
work, require that Tenant give security that the Leased Premises will be
completed free and clear of liens and in a manner satisfactory to Landlord.
Notwithstanding the foregoing, any such improvements or alterations by Tenant
shall conform to and be in substantial accordance in quality and appearance with
the quality and appearance of the improvements in the remainder of the Building.
Any such improvements shall become the property of Landlord upon expiration of
this Lease. Tenant shall remove any movable furniture and equipment upon
termination of this Lease and shall deliver the Leased Premises to Landlord in
as good condition as received, broom clean, normal wear and tear expected. In
the event Tenant receives consent of the Landlord and uses Tenant's own
contractor for any such improvements then Tenant must provide Landlord with
contractor's evidence of workmen's compensation and liability insurance in
amounts sufficient to Landlord and have acquired the necessary building permits
to prior to commencing any such construction.
IX. FIRE OR CASUALTY INSURANCE
In the event that the Leased Premises are wholly or partially destroyed by
fire or other casualty covered by the usual form of fire and extended coverage
insurance rendering them untenantable, Landlord shall, to the extent of
insurance proceeds actually received by Landlord, rebuild, repair or restore the
Leased Premises to substantially the same condition as when the same were
furnished to Tenant and this Lease shall remain in effect during such period. In
the event of total destruction, rent shall xxxxx during the period of
reconstruction, and in the event of partial destruction, rent shall xxxxx
prorata during the period of reconstruction. In the event, however, that the
building containing the Leased Premises is damaged or destroyed to the extent of
more than one-third (1/3) of its replacement cost, Landlord may elect to
terminate this Lease.
Tenant shall be responsible for and shall provide Tenant's own insurance
coverage, and supply Landlord with evidence of such coverage with respect to any
furniture, fixtures, improvements, betterments, equipment and personal property
belonging to Tenant and placed by Tenant in or upon the Leased Premises. Tenant
agrees and warrants to Landlord that any fire insurance policy, extended
coverage policy, casualty and loss policy, or other policy or policies carried
by Tenant in connection with this Lease or the Leased Premises and/or insuring
Tenant's property or effects located in or upon the Leased Premises shall each
contain a provision whereby the insurance carrier waives any right of
subrogation against the Landlord.
Provided Landlord can obtain such waiver of subrogation rights with regard
to policies of fire or casualty insurance obtained by Landlord with regard to
the Building, Landlord hereby releases and waives any and all rights of
subrogation against Tenant which, in the absence of this release and waiver,
would arise in favor of any insurance company insuring Landlord against loss of
fire, extended coverage casualty and loss of any other type, resulting from
damage to or destruction of the building of which the Leased Premises form a
part or any portion thereof or in damage to or destruction of the property of
Landlord in the Building. Landlord shall not be required to obtain such
insurance policies except through insurance companies satisfactory to the
Landlord and the holder of any mortgage covering the Leased Premises.
X. USE OF LEASED PREMISES
The Leased Premises are leased to Tenant for the sole purpose of General
offices and for no other purpose whatsoever. Tenant agrees that it will use the
Leased Premises in such manner as to not interfere with or infringe upon the
rights of other tenants in the Building. Tenant agrees to comply with all
applicable laws, ordinances and regulations in connection with its use of and/or
transfer of any interest in the Leased Premises and in performing all repairs,
remodeling and alterations to the Leased Premises, including all Environmental
Laws and obtaining all necessary permits, licenses or other authorizations
required pursuant to such laws. Tenant shall supply all documentation regarding
compliance with the law, including written documentation by the appropriate
governmental authority that all such laws have been complied with.
Landlord shall retain absolute control over the exterior appearance of the
Building and the exterior appearance of the Leased Premises as viewed from the
public halls. Tenant will not install, or permit to be installed, any drapes,
shutters, signs, lettering, advertising, or any items that will in any way alter
the exterior appearance of the Building or the exterior appearance of the Leased
Premises as viewed from the public halls or exterior.
XII. CONFIDENCE REPOSED IN TENANT AND TENANT'S REPRESENTATIONS AND WARRANTIES
It is agreed that one of the conditions moving Landlord to make this Lease
is the personal confidence reposed by it in Tenant, combined with the belief
that Tenant will be a tenant and occupant satisfactory to Landlord and the other
occupants of the Building. Should Tenant vacate or abandon the Leased Premises
during the term hereof, Landlord, at Landlord's discretion, shall have the right
to cancel this Lease without obligation to Tenant.
Tenant represents and warrants as follows:
A. Tenant has never been in violation of or investigated for violation of
any Environmental Laws.
B. Tenant will not engage in any activity involving Hazardous Substances
or which could create an Environmental Condition on the Leased Premises or
permit any third party to do so, without Landlord's written consent.
C. Tenant will immediately notify Landlord of (i) any investigation,
proceeding, notice or claim regarding a violation of any Environmental Law
relating to the Leased Premises or other premises which Tenant occupies, an
Environmental Condition on the Leased Premises, or a Release of Hazardous
Substances on the Leased Premises, (ii) any submissions or notification made by
Tenant to governmental authorities or others concerning Environmental Conditions
or Hazardous Substances on the Leased Premises, and (iii) the existence of any
Hazardous Substances or Environmental Conditions on or about the Leased Premises
or on property adjoining or in the vicinity of the Leased Premises that may be
in violation of an Environmental Law (regardless of whether Tenant is
responsible for its existence). Tenant will take all appropriate response
actions in the event of an occurrence of an Environmental Condition on the
Leased Premises and shall resolve all environmental problems to the satisfaction
of Landlord. In the event of any investigation, notice of violation or other
action taken by a governmental agency or private person relating in any way to
Tenant's operation on the Leased Premises, Tenant shall be solely responsible
for complying with all legal requirements, including cleanup of the Leased
Premises, and requirements imposed by the governmental authority. Tenant shall
not, however take any remedial action in response to the presence of any
Hazardous Substance or Environmental Condition, nor enter into any settlement
agreement, consent decree or other compromise without first notifying Landlord
and affording Landlord ample opportunity to appear, intervene, or otherwise
appropriately assert and protect Landlord's interests.
D. Tenant's will provide Landlord with an environmental audit at the end
of each Lease year, detailing the use, management and disposal of any Hazardous
Substances on the Leased Premises with the Environmental Laws.
As used in this Lease, the following terms shall have the meanings
A. "Environmental Law(s)" shall mean any federal, state or local law,
including statutes, ordinances, rules, common law and guidelines, now in effect
or hereinafter enacted, pertaining to health, industrial hygiene, or the
environment, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Superfund Amendments and
Reauthorization Act, the Clean Air Act, the Federal Water Pollution Control Act,
the Safe Drinking Water Act, and the Solid Waste Disposal Act.
B. "Hazardous Substances" shall mean any material, waste, or substance
which may or could pose risk of injury or threat to health or the environment
and any substance that is or becomes regulated by any federal, state or local
C. "Environmental Condition" shall mean any condition with respect to
soil, air, surface or groundwater which could require remedial action and/or may
result in claims, demands, and/or liabilities by or to third parties, including
without limitation, governmental entities.
D. "Release" shall mean any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping.
Tenant's failure to perform or observe any of the above representations
and warranties shall constitute a substantial breach of the Lease and shall
entitle Landlord to pursue any and all remedies allowed by law or at equity,
including without limitation canceling and terminating the Lease and imposing a
XIII. ASSIGNMENT AND SUBLETTING
A. Tenant for itself, its heirs, distributees, successors and assigns,
expressly covenants that it shall not, by operation of law or otherwise, assign,
sublet, mortgage or encumber all or any part of this Lease or the Leased
Premises, including environmental liens in favor of a governmental entity, or
permit the Leased Premises to be used by others without the prior written
consent of Landlord in each instance. Any attempt to do so by the Tenant shall
be void. The consent by Landlord to any assignment, sublet, mortgage or
encumbrance or use of all or any part of the Leased premises by others, shall
not constitute a waiver of Landlord's right to withhold its consent to any other
assignment, sublet, mortgage, or encumbrance or use of all or any part of the
Leased Premises by others. Without the prior written consent of Landlord, this
Lease and the interest of Tenant therein or any assignee of Tenant therein,
shall not pass by operation of law, and shall not be subject to garnishment or
sale under execution in any lawsuit or proceeding which may be brought against
or by Tenant or any sublessee or assignee of Tenant.
B. If Tenant requests Landlord's consent to an assignment of this Lease
or subletting of all or any part of the Leased Premises, Tenant shall submit to
Landlord: (1) the name of the proposed assignee or subtenant, (2) the terms of
the proposed assignment or subletting, (3) the nature of the proposed
subtenant's or assignee's business; and (4) such information as to such
subtenant's or assignee's financial responsibility and general reputation as
Landlord may require.
C. Upon the receipt of the request pursuant to Paragraph XIII(B)
hereinabove and information from Tenant, Landlord shall have the option, at
Landlord's discretion, to be exercised in writing within thirty (30) days after
such receipt, to either (1) cancel and terminate this Lease, if the request is
to assign or sublet all of the Lease and/or the Leased Premises or, if the
request is to sublet or assign a portion of the Lease and/or the Leased
Premises, to cancel and terminate this Lease with respect to such portion, in
each case as of the date set forth in Landlord's notice of exercise of such
option; (2) to grant said request, or (3) deny said request if Landlord finds
such subtenant or assignee unacceptable.
D. In the event Landlord shall cancel this Lease, Tenant shall surrender
possession of the Leased Premises, or the portion of the Leased Premises which
is the subject of the request, as the case may be, on the date set forth in such
notice in accordance with the provisions of this Lease relating to surrender of
the Leased Premises. If the lease shall be canceled as to a portion of the
Leased Premises only, the rent and other charges payable by Tenant hereunder
shall be reduced proportionately according to the ratio that the number of
square feet in the portion of space surrendered bears to the square feet of
space at the initial Leased Premises.
E. In the event that Landlord shall consent to a sublease or assignment
pursuant to the request from Tenant, Tenant shall cause to be executed by its
assignee or subtenant an agreement satisfactory to Landlord, whereby such
assignee or subtenant agrees to perform faithfully and to assume and be bound by
all of the terms, covenants, provisions and agreements of this Lease for the
period covered by the assignment or sublease and to the extent of the space
sublet or assigned. In addition, Tenant agrees that with regard to each such
sublease or assignment so consented to by Landlord, Tenant: (1) will not collect
more than one month's rent in advance, (2) will not terminate or cancel such
sublease or assignment without Landlord's prior written consent. (3) will be
responsible for all the acts and omissions of said sublessees or assignees, (4)
will only sublease at the rental which Tenant is then paying to Landlord, (5)
shall pay to Landlord promptly, following receipt of the amount of the value of
any consideration received by Tenant from any assignment of this lease, (6)
Tenant shall not assign or sublet the premises to another existing tenant in the
building housing the Leased Premises, and (7) An executed copy of each sublease
or assignment and assumption of performance by the sublessee or assignee, on
Landlord's standard form, shall be delivered to Landlord within five (5) days
prior to the commencement of occupancy set forth in such assignment or sublease.
No such assignment or sublease shall be binding on Landlord until Landlord shall
have actually received such copies as required herein.
F. In no event shall any assignment or subletting to which Landlord may
consent, release or relieve Tenant from its obligations to fully perform all of
the terms, covenants and conditions of this Lease on its part to be performed.
G. In the event this Lease is canceled at Landlord's option as provided
hereinabove, neither of the parties shall have any further obligations
hereunder, except as may be expressly provided herein and except Tenant shall
pay all rents, charges and all other amounts due, as set out in the Lease, to
the date Tenant is notified of such cancellation.
XIV. EMINENT DOMAIN
In the event any portion of the Leased Premises is taken from Tenant under
eminent domain proceedings, Tenant shall have no right, title or interest in any
award made for such taking.
XV. WAIVER AND SEVERABILITY
The consent of the Landlord in any instance to any variation of the terms
of the Lease, or the receipt of rent with knowledge of any breach, shall not be
deemed to be a waiver as to any breach of any covenant or condition herein
contained, nor shall any waiver be claimed as to any provisions of this Lease
unless the same be in writing, signed by Landlord. This Lease and any written
amendment, exhibits or addenda hereto contain the entire agreement between the
parties. If any term or provision of this Lease or any application thereof shall
be invalid or unenforceable, then the remaining terms and provisions of this
lease and any other application of such term or provision shall not be affected
XVI. USE OF COMMON FACILITIES
All elevators, stairways, halls and areas for the common use of all tenants
at the Building shall be open to reasonable use by Tenant, its customers,
clients and employees. Tenant and its officers, agents and employees agrees to
park their motor vehicles only in areas designated from time to time for that
purpose or otherwise as permitted in writing by Landlord.
A. Landlord agrees to provide air conditioning, heat, water and
electricity for lighting and normal office usage during the customary business
hours of the Building as established by Landlord, and to provide janitor
services of the type customarily furnished by comparable buildings, which shall
consist essentially of a nightly clean-up five (5) days per week, the costs of
which shall be includable in Operating Costs hereunder.
B. Tenant agrees to pay for all utilities and other services and expenses
used or incurred by Landlord on Tenant's behalf not specifically provided for
XVIII. ENTRY OF LANDLORD
Landlord reserves the right, without abatement of rent and other charges
due hereunder from Tenant to enter upon or have its agent enter the Leased
Premises at reasonable times for the inspection of the same, including
environmental assessments and audits, to make necessary repairs, including any
actions necessary to remediate, xxxxx or cleanup any Hazardous Substances or
Environmental Conditions on the Leased Premises, the cost of which Tenant will
be responsible pursuant to paragraph XXVI below, to post notices of
non-responsibility and Landlord reserves the right, during the last six (6)
months of the term of this Lease to show the Leased Premises, at reasonable
times, to prospective purchasers or tenants.
Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Leased Premises, and any other loss occasioned by
Landlord's entry. Landlord shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the Leased Premises, excluding
Tenant's vaults and safes (as the same are permitted by Landlord to be upon the
Leased premises), and Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency in order to
obtain entry to the Leased Premises and any entry into the Leased Premises
obtained by Landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or
a detainer of, the Leased Premises or an eviction of Tenant from the Leased
Premises or any portion thereof.
XIX. SUBSTITUTED PREMISES
Landlord reserves the right upon thirty (30) days' written notice to
Tenant to substitute other premises within the Building for the Leased Premises
for all uses and purposes as though originally leased to Tenant pursuant to this
Lease. The substituted premises shall contain approximately the same number of
square feet as the Leased Premises without increase of Base Rent. Landlord shall
pay all reasonable moving expenses of Tenant incidental to such substitution of
XX. SUBORDINATION AND ATTORNMENT
Landlord reserves the right to place liens and encumbrances on the
Leased Premises superior in lien and effect to this Lease. This Lease and any
and all renewals, modifications, replacements or extensions thereof, at the
option of the Landlord, shall be subject and subordinate to any liens and
encumbrances now or hereinafter imposed by Landlord upon the Leased Premises or
the Building and Tenant agrees to execute and deliver upon demand (and to cause
all sublessees and assignees under Tenant to execute and deliver upon demand)
such instruments subordinating this Lease (and all subleases and assignments
pursuant to this Lease) to any such lien or encumbrance as shall be required by
In the event Landlord's interest in the Leased Premises is derived
from a lease from another party and said Lease should be terminated by the other
party, Tenant agrees to attorn (and to cause all sublessees and assignees under
Tenant to so attorn) to the other party, its successors and assigns as Landlord
on this Lease.
In the event any proceedings are brought for the foreclosure of any
mortgage on the Leased Premises, Tenant will attorn (and Tenant will cause all
sublessees and assignees under Tenant to so attorn) to the purchaser at
foreclosure sale and recognize the purchaser as the Landlord under this Lease.
The purchases by virtue of such foreclosure shall be deemed to have assumed, as
substitute Landlord, the terms and conditions of this Lease until the resale or
other disposition of its interest by such purchaser. Such assumption, however,
shall not be deemed of itself an acknowledgment by the purchaser of the validity
of any then existing claims of Tenant (or the claims of any sublessees or
assignees under Tenant) against the prior Landlord.
Tenant agrees to execute and deliver (and to cause all sublessees and
assignees under Tenant to execute and deliver) such further assurance and other
documents (including but not limited to a new lease upon the same terms and
conditions as this lease) confirming the foregoing as such purchaser may
reasonably request. Tenant on behalf of itself and on behalf of all sublessees
and assignees under Tenant waives any right of election to terminate this Lease
because of any such foreclosure proceedings. Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute (and
to deliver to any third party) any documents hereinabove required to be executed
by Tenant, for and on behalf of Tenant, if Tenant shall have failed to do so
within ten (10) days after the request therefor by Landlord.
Any notices or demands to be given hereunder shall be in writing and
shall be given to Landlord and to Landlord's managing agent with regard to the
Building, at their respective offices and to Tenant at the Leased Premises, or
at such other address as either party shall designate, and shall be by
registered or certified United States mail, postage prepaid or, at the election
of Landlord, hand delivered.
In the event Tenant fails to pay any rental due hereunder or fails to
keep and perform any of the other terms or conditions hereof, time being of the
essence, then five (5) days after written notice of default from Landlord, the
Landlord may, if such default has not been corrected, resort to any and all
legal remedies or combination of remedies which Landlord may desire to assert
including but not limited to one or more of the following: (1) lock the doors to
the Leased Premises and exclude Tenant therefrom, (2) retain or take possession
of any property on the Leased Premises pursuant to Landlord's statutory lien,
(3) enter the Leased Premises and remove all persons and property therefrom, (4)
declare this Lease at an end and terminated, (5) xxx for the rent due and to
become due under this Lease, and for any damages sustained by Landlord, (6)
collect, directly from any sublessee or assignee under Tenant all subrents and
other charges payable by such sublessees or assignees, Tenant hereby assigning
to Landlord such subrents and other charges in the event of a default by Tenant
under this lease, and (7) continue this Lease in effect and relet the Leased
Premises on such terms and conditions as Landlord may deem advisable with Tenant
remaining liable for the monthly rent plus the reasonable cost of obtaining
possession of the Leased Premises and of any repairs and alterations necessary
to prepare the Leased Premises for reletting, less the rentals received from
such reletting, if any. No action of Landlord shall be construed as an election
to terminate this Lease unless written notice of such intention be given to
Tenant. Tenant agrees to pay as additional rental all attorney's fees and other
costs and expenses incurred by Landlord in enforcing any of Tenant's obligations
under this Lease. Any amount due from Tenant to Landlord under this Lease which
is not paid when due shall bear interest at the "Prime Rate" that is in effect
on the date such amount is due, accruing from such date until paid. Furthermore,
that rate of interest paid by Tenant on any such amount shall be adjusted as the
"Prime Rate" is adjusted.
XXIII. LATE PAYMENTS
Tenant hereby acknowledges that the late payment by Tenant to Landlord
of rent or any additional rent or other sums due hereunder will cause Landlord
to incur costs not contemplated in this Lease, the exact amount of which will be
extremely difficult and impracticable to ascertain. Such costs include but are
not limited to processing, administrative and accounting costs.
Accordingly, if any installment of rent or any additional rent or any
other sum due from Tenant shall not be received by Landlord within five (5) days
after such amount shall be due, Tenant shall pay to Landlord a late charge equal
to five percent (5%) of such overdue amount. If any installment of rent or any
additional rent or any other sum due from Tenant shall not be received within
thirty (30) days after such amount shall be due, Landlord shall incur additional
processing, administrative and accounting costs. In order to compensate Landlord
therefor, Tenant shall pay to Landlord an additional late charge equal to five
percent (5%) of such overdue amount, including previous penalties. The parties
hereby agrees that such late charges represent a fair and reasonable estimate of
the costs Landlord will incur by reason of late payment by Tenant. Neither
assessment nor acceptance of such late charge by Landlord shall constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted under the
Lease. Nothing contained in this paragraph shall be deemed to condone,
authorize, sanction or grant to Tenant an option for the late payment of rent,
and Tenant shall be deemed in default in the payment of its rent should the same
not be paid by the date on which it is due.
XXIV. BUILDING RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations of the Building imposed
by Landlord. Such rules and regulations are imposed for the cleanliness, good
appearance, proper maintenance, good order and reasonable use of the Leased
Premises and the Building, and as may be necessary for the proper enjoyment of
the Building by all Tenants and their clients, customers and employees. The
rules and regulations may be changed from time to time upon ten (10) days notice
to Tenant. Breach of the rules and regulations of the Building shall not be
grounds for termination of the Lease unless Tenant continues to breach the same
after ten (10) days written notice by Landlord. Landlord shall not be
responsible to Tenant for nonperformance by any tenant or occupant of the
Building of any rules or regulations.
Tenant shall keep the Landlord, Leased Premises and building harmless from
and against any liens or claims arising out of any work performed, materials
furnished or obligations incurred by Tenant, and shall indemnify and hold
Landlord harmless against the same, together with all costs of suit and
attorney's fees incurred by Landlord in connection therewith.
XXVI. INDEMNIFICATION OF LANDLORD
Landlord shall not be liable to Tenant, and Tenant hereby waives all claims
against Landlord for any injury (including death) or damage to any person or
property in or about the Leased Premises by or from any cause whatsoever and
Tenant shall indemnify and hold Landlord, its successors, officers and employees
harmless from any and all claims, costs, expenses or liability of any kind
(including without limitation a decrease in the value of the Leased Premises and
reasonable consultants' and attorneys' fees) arising directly or indirectly
from: (i) injury (including death) or damage to any person or property
whatsoever occurring on or about the Leased Premises, (ii) Hazardous Substances
or an Environmental Condition on or about the Leased Premises, or (iii)
violations or claims of violations by Tenant of an Environmental Law. This
indemnification obligation shall be in addition to any other obligations and
liabilities Tenant may have to Landlord at law or equity, and shall survive the
term of this Lease and shall not be subject to any other provisions of this
Lease that operate to limit Tenant's liability.
Tenant shall obtain and keep in effect during the term of this Lease a
policy of comprehensive liability insurance, including public liability and
property damage, with a minimum combined single limit of liability of One
Million Dollars ($1,000,000.00). Said policy or policies shall name Landlord and
its agents as additional insureds and shall be issued by an insurance company,
licensed to do business in the State of Arizona, and acceptable to Landlord.
Said policy or policies shall additionally provide that the insurance shall not
be canceled or modified unless thirty (30) days prior written notice has been
given to Landlord. Tenant shall supply Landlord with a certificate of the
insurance which it has obtained prior to its occupation of the leased premises.
Landlord shall have the right to request Tenant to provide additional insurance
or other form of security satisfactory to Lender in the event that Tenant's
activities on the Leased Premises involve Hazardous Substances.
Tenant agrees to pay or cause to be paid, before delinquency, any and all
taxes levied or assessed and which become payable during the term hereof upon
all of Tenant's equipment, furniture, fixtures and other personal property
located in the Leased Premises.
XXVIII. HOLDING OVER
Upon the expiration of this Lease, Tenant shall immediately surrender the
Leased Premises to Landlord, such Leased Premises to be broom clean, in good
condition and repair, ordinary wear and tear expected. If the Tenant or any
sublessee or assignee under Tenant holds over after the expiration or earlier
termination of this Lease without Landlord's express written consent, Tenant
shall be in default hereunder and in addition to all of the rights or remedies
available to Landlord, Tenant shall be obligated to pay to Landlord rent at a
rate established by Landlord with regard to the Leased Premises for the time
during which Tenant retains possession, which payment shall not constitute a
waiver of any of Landlord's other rights or remedies provided herein.
XXIX. INSOLVENCY OR BANKRUPTCY
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Tenant; or (b) an assignment by Tenant for
the benefit of creditors; or (c) any action taken or suffered by Tenant under
any insolvency, bankruptcy or reorganization act, shall constitute a default and
breach of this Lease by Tenant. Upon the happening of any such event, Landlord
shall have all the rights herein provided in the event of any such default or
breach, including without limitation the right, at Landlord's option, to
terminate this Lease and enter the Leased Premises and remove all persons and
property therefrom. In no event shall this Lease be assigned or assignable by
operation of law or by voluntary or involuntary bankruptcy proceedings or
otherwise and in no event shall this Lease or any rights or privileges hereunder
be an asset of Tenant under any bankruptcy, insolvency or reorganization
XXX. SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Leased premises,
the same shall operate to release landlord from any further liability upon any
of the covenants or conditions, express or implied, herein contained in favor of
Tenant and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. This Lease shall not
be affected by any such sale, and Tenant agrees to attorn to the purchaser or
assignee upon Landlord's request. Tenant shall deliver to such purchaser an
offset statement and an estoppel certificate in such form as Landlord may
request, and, in the event Tenant fails to deliver said statement and
certificate within ten (10) days after demand by Landlord, Tenant hereby
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute said
statement and certificate.
XXXI. ATTORNEY'S FEES
In the event of any actin or proceeding brought by either party against the
other under this Lease, the prevailing party shall be entitled to recover its
attorney's fees and costs in such action or proceeding. In the event Landlord
intervenes in or becomes a party or is made a party to any action or proceeding
arising in connection with this Lease in order to protect its rights, then
Tenant shall pay to Landlord the fees of Landlord's attorneys therein as fixed
by the court.
XXXII. SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to Landlord of any or all such
subleases or subtenancies. Tenant agrees that there shall be no value to the
leasehold upon termination or cancellation of the Lease under its terms.
XXXIII. LIMITATION OF LANDLORD'S LIABILITY
Tenant covenants and agrees that any claims that Tenant may have now or
hereafter against Landlord shall be asserted solely against and satisfied only
out of Landlord's right, title and interest in the Building and not from any
other thing or asset of Landlord.
XXXIII. TIME OF THE ESSENCE
Time is of the essence of this Lease and all of its provisions.
XXXV. BINDING EFFECT
The covenants and conditions herein contained shall, subject to the
provisions restricting Tenant's assignment and subletting, apply to and bind
the heirs, executors, administrators, personal representatives, successors and
assigns of the parties hereto.
Tenant shall not record this Lease or any short form memorandum
thereof, without the prior written consent of Landlord.
XXXVII. NAME OF BUILDING
Tenant shall not use the name of the Building for any purpose other
than as an address of the business to be conducted by Tenant in the Leased
XXXVIII. GOVERNING LAW
This Lease and all the terms and conditions thereof shall be governed
by the laws of the State of Arizona.
XXXIX. DEFINED TERMS AND PARAGRAPH HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in masculine gender include the
feminine and neuter. If there is more than one Tenant, the obligations
hereunder imposed upon Tenant shall be joint and several. The paragraph
headings and titles to the paragraphs of this Lease are not a part of this
Lease and shall have no effect upon the construction or interpretation of any
CSK Auto Inc., an Arizona Missouri Falls Partners,
corporation an Arizona partnership
/s/ Xxx Xxxxxx Name of Landlord
Name of Tenant By: Insignia Commercial Group, Inc.
a Delaware corporation
By: Xxx Xxxxxx ----------------------------------
Its: Sr. VP ----------------------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------- Xxxxxx X. Xxxxxx
Its: Managing Director
RULES AND REGULATIONS
1. PUBLIC AREA. All public areas of the Building shall be under the sole and
absolute control of Landlord and Landlord shall have the exclusive right to
regulate, modify and control these areas.
2. WIRING. When electric wiring of any kind is introduced, it must be
connected as directed by the Landlord and no boring or cutting for wires will be
allowed except with the written consent of the Landlord. No apparatus, other
than normal office machines and equipment of any kind shall be connected with
the electric wiring of the Leased Premises and/or the Building without the
written consent of the Landlord.
3. INCREASE IN RISK. No tenant shall do anything in the Leased Premises,
and/or the Building or bring or keep anything therein, which will in any way
increase or tend to increase the risk of fire, or which shall conflict with the
regulations of the Fire Department or the fire laws, or with any rules or
ordinances established by the Board of Health. No tenant shall use any machinery
which may cause any objectionable noise, jar, or tremor to the floors or walls,
or which, by its weight, might injure the floors of the Building. No tenant
shall do anything in the Leased Premises and/or the Building which will pose a
risk of a Release of a Hazardous Substance or creation of an Environmental
Condition on the Leased Premises.
4. NO AUCTIONS. No tenant shall conduct any auction on the Leased Premises. No
tenant shall store goods, wares or merchandise on the Leased Premises, except
for such tenant's own personal use.
5. MOVING. All freight, furniture, fixtures and equipment must be moved into,
within, and out of the Building under the supervision of the Landlord, and
according to such regulations as determined by Landlord from time to time.
6. TENANT REQUESTS. The requests of any tenant will be attended to only upon
written application at the office of the Building. Employees of Landlord shall
not perform any work, nor do anything outside of their regular duties unless
special written instructions from the Landlord are first had and obtained and no
employee shall admit any person (whether a tenant or otherwise) to any part of
the Building without specific instructions from the Landlord or Landlord's
7. KEYS. All keys shall be obtained from the Landlord and all keys shall be
returned to the Landlord upon the termination or earlier expiration of this
Lease. No tenant shall change the locks, or install other locks, on the doors to
the Leased Premises or elsewhere without the written consent of Landlord.
8. LOCKING OF LEASED PREMISES. Each tenant shall see that the windows and
doors of the Leased Premises are closed and securely locked before leaving the
Leased Premises and that all lights are properly turned off.
9. NOTICE OF ACCIDENTS. Each tenant shall give Landlord prompt notice of any
accident to, or defects in, the Building, the Leased Premises, the plumbing,
electric wiring, heating or air conditioning so that the same may be attended to
10. JANITORIAL SERVICE. All cleaning and janitorial services for the building
and the Leased Premises shall be provided exclusively through Landlord.
11. UTILITIES. No tenant shall use any method of heating or air conditioning
other than that supplied by Landlord.
12. COOPERATION WITH LANDLORD. Each tenant shall cooperate with Landlord in
obtaining maximum effectiveness of the cooling system by closing drapes and
other window coverings when the sun's rays fall on the windows of the Leases
Premises. No tenant shall tamper with, alter or change the setting of any
thermostats or temperature control valves.
13. CONTROL BY LANDLORD. Landlord reserves the right to exclude or expel from
the Building any person who, in the judgement of Landlord is intoxicated or
under the influence of liquor or drugs, or who shall in any manner act in
violation of any of the rules and regulations of the Building.
14. SERVICES. All services to be provided by Landlord as specified shall be
subject to schedule change as Landlord shall deem necessary.
15. PASSES. Landlord reserves the right to exclude from the Building at all
time, other than the reasonable hours of the generally recognized business day
as determined by Landlord, all persons who do not present a pass or other
identification acceptable to Landlord.
16. CANVASSING. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent such activities.
17. HAND TRUCKS. There shall not be used in any space, or in the public halls
of the Building either by any tenant or others, any hand trucks except those
which are approved by Landlord in writing and which hand trucks are equipped
with rubber tires and side guards.
18. PLUMBING. The toilets, wash basins and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substance shall be thrown therein. All damage
resulting from any misuse of fixtures shall be borne by the tenant who, or whose
employees, agents or visitors shall have caused the same.
19. VEHICLES, COOKING, PETS. No bicycles, vehicles or animals of any kind shall
be brought into or kept in or about the Leased Premises, and/or the Building
and, except for any restaurant tenant permitted by Landlord to do so, no cooking
shall be done or permitted by any tenant on the Leased Premises and/or the
Building except the preparation of coffee, tea, hot chocolate and similar items
for the Tenant, its employees and business visitors. No tenant shall cause or
permit any unusual or objectional odors to escape from the Leased Premises.
20. ADVERTISING. No tenant shall engage in advertising which, in Landlord's
opinion tends to impair the reputation of the Building or its desirability.
21. AMENDMENT. Landlord reserves the right at any time to rescind any one or
more of these rules and regulations, or to make such other and further
reasonable rules and regulations as in Landlord's judgment may from time to time
be necessary for the safety, care and cleanliness of the Leased Premises, the
Building and for the preservation of order therein.
22. HEADINGS. The headings of the Paragraphs of these rules and regulations are
for convenience of reference only and shall not limit or define, in any way the
terms of provisions thereof.
23. PROHIBITIVE USES. No premises shall be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use of
such premises for general office purposes. No tenant shall occupy or permit any
portion of its premises to be occupied for the manufacture or sale of liquor,
narcotics, or tobacco in any forms, or as a medical office, or as a xxxxxx shop
or manicure shop without the prior written consent of Landlord. No tenant shall
advertise for laborers giving an address at the Building. No premises shall be
used for lodging or sleeping or for illegal purposes.
24. COMBUSTIBLE MATERIALS AND HAZARDOUS SUBSTANCES. No tenant shall use or keep
in any premises or at the Building any kerosene, gasoline or inflammable or
combustible fluid or material or Hazardous Substances.
25. WINDOW COVERINGS. Tenant shall not place any coverings on the windows
without first obtaining Landlord's written consent. The acceptability of any
such covering shall be at Landlord's discretion.
26. EXTERIOR FURNITURE. Tenant shall not place any furnishings on the
balconies or patios of the Building.
DATED this 25th day of August, 0000
Xxxxxxxx Xxxxx Partners, an Arizona partnership.
By: Insignia Commercial Group, Inc.
a Delaware corporation as Agent
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Managing Director
RECEIPT BY TENANT
The undersigned Tenant hereby acknowledges receipt of a complete copy of the
foregoing rules and regulations.
DATED this __________________________ day of __________________________ 19___
CSK Auto, Inc.
an Arizona corporation
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: President and COO
[Floor plan of office space]