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Exhibit 10.10
LEASE
FOR 0000 X. XXXXXXXX XXXXXX IN PHOENIX, ARIZONA
BETWEEN
19TH AVENUE/XXXXXXXX LIMITED PARTNERSHIP (LANDLORD)
AND XXXXXX STEEL COMPANY (TENANT)
MAY 1, 1997
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TABLE OF CONTENTS
Article Page
ARTICLE 1. LEASED PREMISES.............................................. - 1 -
1.1 Leased Premises................................................... - 1 -
ARTICLE 2. TERM......................................................... - 1 -
2.1 Term of Lease..................................................... - 1 -
2.2 Quiet Enjoyment................................................... - 1 -
2.3 Surrender of Leased Premises...................................... - 1 -
2.4 Holding Over...................................................... - 2 -
2.5 Abandonment....................................................... - 2 -
ARTICLE 3. RENTALS AND OTHER TENANT CONTRIBUTIONS....................... - 2 -
3.1 Minimum Rent...................................................... - 2 -
3.2 Adjustment of Minimum Rent........................................ - 2 -
3.2.1 Computation of Adjusted Minimum Rent..................... - 3 -
3.2.2 Use of Different Index................................... - 3 -
3.3 Payment of Rent................................................... - 3 -
3.4 Taxes............................................................. - 3 -
3.4.1 Rent Tax................................................. - 3 -
3.4.2 Personal Property Tax.................................... - 3 -
3.4.3 Real Property Tax........................................ - 3 -
3.5 Interest.......................................................... - 4 -
3.6 Utilities Consumed on Leased Premises............................. - 4 -
ARTICLE 4. SECURITY..................................................... - 4 -
4.1 Landlord's Lien................................................... - 4 -
4.2 Security in Addition to Other Remedies............................ - 5 -
ARTICLE 5. CONSTRUCTION, ALTERATIONS, MAINTENANCE AND
REPAIRS...................................................... - 5 -
5.1 Tenant's Duty to Repair........................................... - 5 -
5.2 Tenant's Alterations and Improvements to Leased Premises.......... - 5 -
5.3 Furniture, Trade Fixtures and Equipment........................... - 6 -
5.4 Initial Installation and Improvements by Tenant................... - 6 -
5.5 Mechanic's Lien................................................... - 7 -
ARTICLE 6. USE OF LEASED PREMISES....................................... - 8 -
6.1 Tenant's Use of Leased Premises................................... - 8 -
6.2 Conduct of Tenant's Operations.................................... - 8 -
6.3 Rights Reserved by Landlord....................................... - 8 -
(i)
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6.3.1 Easements................................................ - 8 -
6.3.2 Inspection............................................... - 9 -
6.3.3 Presentation for Sale or Lease........................... - 9 -
ARTICLE 7. LIABILITY INSURANCE AND INDEMNIFICATION...................... - 9 -
7.1 Insurance......................................................... - 9 -
7.2 Operations of Tenant.............................................. - 10 -
7.3 Policy Requirements............................................... - 10 -
7.4 Failure to Procure Insurance...................................... - 10 -
7.5.1 Indemnification.......................................... - 10 -
7.5.2 Waiver of Claims......................................... - 11 -
7.5.3 Notice of Claims or Suits................................ - 11 -
ARTICLE 8. LOSS, DESTRUCTION OR TAKING OF LEASED
PREMISES..................................................... - 11 -
8.1 Fire or Other Casualty............................................ - 11 -
8.2 Condemnation...................................................... - 11 -
ARTICLE 9. ASSIGNMENT, SUBLETTING, MORTGAGING AND
SUBORDINATION................................................ - 12 -
9.1 Assignment and Subletting by Tenant............................... - 12 -
9.2 Assignment and Mortgaging by Landlord............................. - 12 -
9.3 Subordination..................................................... - 12 -
9.4 Offset Statement.................................................. - 13 -
ARTICLE 10. DEFAULT AND REMEDIES FOR DEFAULT............................. - 13 -
10.1 Events of Default................................................. - 13 -
10.1.1 Tenant Bankruptcy/Insolvency............................. - 13 -
10.1.2 Delinquency in Payment................................... - 13 -
10.1.3 Abandonment.............................................. - 13 -
10.1.4 Failure to Perform Covenants............................. - 14 -
10.2 Remedies of Landlord for Default by Tenant........................ - 14 -
10.2.1 Landlord Cure............................................ - 14 -
10.2.2 Distrain................................................. - 14 -
10.2.3 Exercise General Lien.................................... - 14 -
10.2.4 Right of Re-Entry........................................ - 14 -
10.2.5 Termination of Lease..................................... - 14 -
10.3 Non-Waiver of Remedies............................................ - 15 -
ARTICLE 11. GENERAL PROVISIONS........................................... - 16 -
11.1 No Brokers........................................................ - 16 -
11.2 No Partnership.................................................... - 16 -
11.3 Successors and Assigns............................................ - 16 -
11.4 Notices........................................................... - 16 -
(ii)
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11.5 Attorney's Fees................................................... - 17 -
11.6 Scope and Interpretation of this Agreement........................ - 17 -
11.6.1 Entire Agreement......................................... - 17 -
11.6.2 Headings/Captions........................................ - 17 -
11.6.3 Gender and Interpretation of Terms and Provisions........ - 17 -
11.6.4 Time of Essence.......................................... - 17 -
11.6.5 Impartial Construction................................... - 18 -
11.6.6 Governing Law............................................ - 18 -
11.6.7 Partial Invalidity....................................... - 18 -
11.6.8 Amendment................................................ - 18 -
11.7 Execution and Delivery of Lease................................... - 18 -
(iii)
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LEASE
THIS LEASE is entered into as of the 1st day of May, 1997, by
and between 19th AVENUE/XXXXXXXX LIMITED PARTNERSHIP, an Arizona limited
partnership ("Landlord"), and XXXXXX STEEL COMPANY, an Arizona corporation
("Tenant").
ARTICLE 1. LEASED PREMISES
1.1 Leased Premises. Landlord leases to Tenant the land and improvements
located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, as more
particularly described on Exhibit "A" ("Leased Premises").
ARTICLE 2. TERM
2.1 Term of Lease. The term of this Lease shall be twenty (20) years
commencing on May 1, 1997 and ending on April 30, 2017.
2.2 Quiet Enjoyment. Landlord agrees that so long as the rent is being paid
in the manner and at the time prescribed and the covenants and
obligations of Tenant are being all and singularly kept, fulfilled and
performed, Tenant shall lawfully and peaceably have, hold, possess, use
and occupy and enjoy the Leased Premises so long as this Lease remains
in force without hindrance, disturbance or molestation from Landlord,
subject to the specific provisions of this Lease.
2.3 Surrender of Leased Premises. Upon any termination of this Lease,
whether by lapse of time, cancellation pursuant to an election provided
for herein, forfeiture, or otherwise, Tenant shall immediately
surrender possession of the Leased Premises and all buildings and
improvements on the same to Landlord in good and tenantable repair,
reasonable wear and damage from fire or other casualty or peril
excepted, and shall surrender all keys for the Leased Premises to
Landlord at the place then fixed for the payment of rent and shall
inform Landlord of all combinations of locks, safes and vaults, if any,
in the Leased Premises.
At any time during the ten (10) days before the termination date of
this Lease, Tenant, if not in default hereunder at such time, shall
have the right to remove, and at the end of the term, if directed to do
so by Landlord, shall remove from the Leased Premises all furniture,
furnishings, signs, and equipment then installed or in place in, on or
about the Leased Premises; provided, however, Tenant shall, and it
covenants and agrees to, make all repairs to the Leased Premises
required because of such removal. If any of such property shall remain
on the Leased Premises after the end of the term hereof, such property
shall be and become the property of Landlord without any claim therein
of Tenant. Landlord may direct Tenant to remove such property, in which
case Tenant
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agrees to do so, and to reimburse Landlord for any expense of removal
in the event Tenant shall fail to remove such property if and when
directed.
Upon termination of this Lease, Tenant shall peaceably surrender the
Leased Premises, including all fixtures and tenant improvements, in a
neat and broom clean condition, and Tenant shall repair any holes or
openings made by Tenant in the walls, roof or floor of the building,
remove any protuberance and perform any maintenance or repairs required
of Tenant by this Lease. If directed to do so by Landlord, Tenant shall
also remove any improvements, additions or alterations made to the
Leased Premises by Tenant even though such improvements by the terms of
this Lease become a part of the Leased Premises.
2.4 Holding Over. If Tenant, upon expiration or termination of this Lease,
either by lapse of time or otherwise, remains in possession of the
Leased Premises with Landlord's written consent but without a new lease
reduced to writing and duly executed, Tenant shall be deemed to be
occupying the Leased Premises as a tenant at will, subject to all the
covenants, conditions and agreements of this Lease. If Tenant remains
in possession without Landlord's written consent, Tenant shall be
deemed to be in wrongful holdover and shall be subject to all the
rights and remedies provided to Landlord under this Lease and the
applicable laws, including any forcible entry and detainer actions or
other eviction processes.
2.5 Abandonment. If Tenant, prior to the expiration or termination of this
Lease by lapse of time or otherwise, relinquishes possession of the
Leased Premises without Landlord's written consent, such relinquishment
shall be deemed to be an abandonment of the Leased Premises and an
event of default under this Lease.
ARTICLE 3. RENTALS AND OTHER TENANT CONTRIBUTIONS
3.1 Minimum Rent. Tenant shall pay to Landlord minimum annual rent in the
amount of One Hundred Thirty-five Thousand Dollars ($135,000.00) per
year, payable in advance in equal monthly installments of Eleven
Thousand Two Hundred Fifty Dollars ($11,250.00) ("Minimum Rent") on the
first day of each calendar month, without prior demand therefor.
3.2 Adjustment of Minimum Rent. The minimum annual rent is subject to
adjustment every five (5) years during the term of this Lease, with
each adjustment to commence on May 1 of the year of adjustment
("Adjusted Minimum Rent"). The Adjusted Minimum Rent shall be effective
as of May 1, 2002, May 1, 2007, and May 1, 2012 during the term hereof,
with the Adjusted Minimum Rent payable in advance in equal monthly
installments on the first day of each calendar month thereafter,
without prior demand therefor.
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3.2.1 Computation of Adjusted Minimum Rent. The Adjusted Minimum
Rent shall be computed based on the increase in the Consumer
Price Index - U.S. City average - All Urban Consumers
("Index") as published by the United States Department of
Labor's Bureau of Labor Statistics over the base period index.
The base period index shall be the index for the calendar
month of March 1996. The base period index shall be compared
with the Index for the same calendar month for each subsequent
March in the year immediately preceding the effective date of
each adjustment (comparison month). If the Index for any
comparison month is higher than the base period index, then
the Minimum Rent for the next succeeding adjustment period
shall be increased by the identical percentage commencing with
the next succeeding May 1. In no event shall the Minimum Rent
be less than that the amount paid immediately prior to any
such adjustment.
3.2.2 Use of Different Index. If the Bureau discontinues the
publication of the Index, or publishes it less frequently, or
alters it in any manner, then Landlord shall adopt a
substitute index or substitute procedure which reasonably
reflects and monitors consumer prices.
3.3 Payment of Rent. Tenant shall, without prior notice or demand and
without any setoff or deduction whatsoever, pay all rentals and other
charges and render all statements herein prescribed at the Landlord's
address or to such other person or corporation, and at such other
place, as shall be designated by Landlord in writing at least ten (10)
days prior to the next ensuing rental payment date.
3.4 Taxes.
3.4.1 Rent Tax. Tenant shall pay as additional rent, any privilege
tax, sales tax, gross proceeds tax, rent tax or like tax (but
not including income tax), now or hereafter levied, assessed
or imposed by any federal, state, county or municipal
governmental authority, or any subdivision thereof, upon any
rent or other payments require to be paid under this Lease.
3.4.2 Personal Property Tax. Tenant shall pay before delinquent, as
additional rent, all personal property taxes and assessments
levied or assessed by any governmental authority against any
personal property or fixtures of Tenant in, on or about the
Leased Premises.
3.4.3 Real Property Tax. Tenant shall pay before delinquent,
exhibiting receipts to Landlord on demand, all real property
taxes and assessments levied or assessed against the Leased
Premises and improvements thereon, all water charges or
assessments levied in connection with any improvements or
irrigation projects, or district or other taxes, assessments
or governmental charges of any kind levied or assessed against
the Leased Premises. Tenant shall have the right, in good
faith and at its sole and own cost and expense and in its own
name or in the name
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of Landlord, to protest or contest or seek to have reviewed,
reduced, equalized or abated any tax or assessment by legal
proceedings in such manner as it may deem advisable. No
protest, contest or other action, however, shall be maintained
by Tenant after the time limited for the payment without
penalty or interest of the tax or assessment unless Tenant
shall have first paid the amount of such tax or assessment
under protest or shall have procured a stay of proceedings to
enforce the collection thereof, and shall have also provided
for the payment thereof, together with all penalties,
interest, cost and expenses, by the deposit of a bond in form
approved by Landlord if required by law to accomplish such
stay.
3.5 Interest. Tenant covenants and agrees that all sums to be paid under
this Lease, if not paid when due, shall bear interest on the unpaid
portion thereof at the rate of eighteen (18%) per annum from the date
when due. If Landlord shall pay any monies, or incur any expenses in
correction of any violation of any covenant of Tenant herein set forth,
the amounts so paid, or, incurred shall, at Landlord's option and on
notice to Tenant, be considered additional rentals payable by Tenant
with the first installment of rental thereafter to become due and
payable, and may be collected or enforced as by law provided with
respect to rentals.
3.6 Utilities Consumed on Leased Premises. In addition to all rentals
herein specified, Tenant shall be responsible for and shall pay for all
utilities used or consumed in or upon the Leased Premises, and all
sewer charges, as and when the charges therefor shall become due and
payable, throughout the term of this Lease. Tenant shall make all
appropriate applications to the local utility companies and pay all
required deposits for meters and service for all utilities.
In the event any utility or utility service (such as water or sewage
disposal) are furnished to Tenant for which a lien could be filed
against the Leased Premises or any portion thereof, Tenant shall, at
Landlord's request, pay the cost thereof to Landlord as and when the
charges therefor become due and payable; otherwise, Tenant shall
deliver original receipted bills to Landlord within thirty (30) days
after the same are due and payable without interest or penalty.
In no event shall Landlord be liable for any interruption or failure in
the supply of any utilities to the Leased Premises.
ARTICLE 4. SECURITY
4.1 Landlord's Lien. Landlord shall have a general lien on the leasehold
estate hereby created and on all property kept or used on the Leased
Premises, whether such property is exempt from execution or not, to
secure payment of any and all monies then due or thereafter becoming
due to Landlord under the terms and conditions of this Lease, and to
secure the prompt performance and fulfillment by Tenant of each and
every one of said terms and conditions. The lien as provided for in
this Paragraph 4.1 attaches as of
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the date of execution hereof and shall remain in full force and effect
unless expressly waived by Landlord in writing.
4.2 Security in Addition to Other Remedies. The security given Landlord in
this Article 4 shall not limit, replace or obviate the remedies of
Landlord upon a default by Tenant as described in Article 10 below,
including the right of Landlord to re-enter the Leased Premises,
distrain for rent or pursue its general lien upon Tenant's property in
the Leased Premises described in Paragraph 4.1 above.
ARTICLE 5. CONSTRUCTION, ALTERATIONS, MAINTENANCE AND REPAIRS
5.1 Tenant's Duty to Repair. Landlord shall not be called upon to make any
improvements or repairs of any kind upon the Leased Premises and
appurtenances unless such repairs are necessitated by the misuse or
negligence of Landlord. Tenant shall keep and maintain in good order,
condition and repair (including any such replacement, periodic
painting, and restoration as is required for that purpose) the Leased
Premises and every part thereof and any and all appurtenances hereto
located. Any of the foregoing repairs required to be made by reason of
the negligence of Landlord shall be the responsibility of the Landlord
notwithstanding the provisions above contained in this paragraph.
If Tenant refuses or neglects to commence and to complete repairs or
maintenance required herein promptly and adequately, Landlord may, but
shall not be required to, make and complete said repairs, and Tenant
shall pay the cost thereof to Landlord as additional rent upon demand.
Except as provided in Paragraph 8.1 (Fire and Casualty damage) and 8.2
(Condemnation), Landlord shall not be obligated to repair, replace,
maintain or alter the Leased Premises, and Tenant waives all laws in
contravention thereof. With regard to repairs, Tenant expressly waives
any right pursuant to any law now existing or which may be effective
during the term hereof, to make repairs at Landlord's expense.
5.2 Tenant's Alterations and Improvements to Leased Premises. Tenant shall
not make or cause to be made any alterations, additions or improvements
to the building, or make any changes to the exterior of the building
without first obtaining Landlord's written approval and consent.
Tenant shall present to the Landlord plans and specifications for such
work at the time approval is sought. No addition, alteration, change or
improvement shall be made which will weaken the structural strength,
lessen the value of, or change the architectural appearance of any
building or other construction.
Landlord may condition its approval of any additions or alterations by
Tenant on the requirement that Tenant or its contractor secure and bear
the cost of a labor and materials
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payment bond for the amount of the proposed construction reflecting
Landlord as an obligee.
All building materials and fixtures installed by Tenant shall be new or
completely reconditioned. All alterations, improvements, additions and
fixtures made or installed by Tenant as aforesaid shall remain upon the
Leased Premises at the expiration or earlier termination of this Lease
and shall become the property of Landlord, unless Landlord shall, prior
to the expiration or termination of this Lease, have given written
notice to Tenant to remove the same, in which event Tenant shall remove
the same and restore the Leased Premises to the same good order and
condition in which it was at the commencement of this Lease. Should
Tenant fail so to do, Landlord may do so, collecting, at Landlord's
option, the cost and expense thereof from the Tenant as additional
rent.
5.3 Furniture, Trade Fixtures and Equipment. Tenant shall not cut or drill
into, or secure any trade fixtures, apparatus or equipment of any kind
to any part of the Leased Premises without first obtaining the written
consent of Landlord. All furnishings, trade fixtures, equipment, and
machines installed by Tenant in the Leased Premises shall be new or
completely reconditioned and remain the property of Tenant subject to
Landlord's security interest as defined at Paragraph 4.1 above and
shall be removable at the expiration or earlier termination of this
Lease or any renewal or extension thereof, provided Tenant shall not
at such time be in default under any covenant or agreement contained
in this Lease; and provided further, that in the event of such
removal, Tenant shall promptly restore the Leased Premises to their
original order and condition. Any such equipment not removed at or
prior to such termination shall be and become the property of
Landlord.
5.4 Initial Installation and Improvements by Tenant. Tenant shall submit to
Landlord complete architectural, electrical and mechanical plans and
specifications covering all work which Tenant proposes to do in the
Leased Premises including the fixturing thereof, whether such work is
to be done by Tenant or others. Such plans and specifications shall be
prepared in such detail as Landlord may require, and Tenant agrees not
to commence work upon any portion of the Leased Premises until Landlord
has approved such plans and specifications in writing. Landlord agrees
to act with reasonable promptness with respect to such plans and
specifications. Any changes in said plans or specifications must be
similarly approved by Landlord.
All of Tenant's work and installations shall be done in a first class,
workmanlike manner and in compliance with all laws, rules, regulations
and orders of all governmental authorities having jurisdiction thereof,
and, in the performance of Tenant's work, Tenant shall engage and
employ only such labor as will not cause any conflict or controversy
with any labor organization representing trades performing work for
Landlord or others in the Leased Premises.
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Tenant shall, at Tenant's own expense, promptly remove from the Leased
Premises all trash and debris which may accumulate in connection with
Tenant's work in the Leased Premises.
Landlord shall have no liability or responsibility for loss of, or any
damage to fixtures, equipment or other property of Tenant so installed
or placed on the Leased Premises.
5.5 Mechanic's Lien. If Tenant makes any alterations or improvements in the
Leased Premises, Tenant must pay for them when made. Nothing in the
Lease shall be construed to authorize Tenant or any person dealing with
or under Tenant, to charge the rents of the Leased Premises, or the
property of which the Leased Premises form a part, or the interest of
Landlord in the estate of the Leased Premises, or any person under and
through whom Landlord has acquired its interest in the estate of the
Leased Premises, with a mechanic's lien or encumbrance of any kind, and
under no circumstances shall Tenant be construed to be the agent,
employee or representative of Landlord in the making of such
alterations or improvements to the Leased Premises, but, on the
contrary, the right or power to charge any lien, claim or encumbrance
of any kind against Landlord's rents or the Leased Premises or said
land is denied. So long as the laws of this state shall provide for the
filing of a statutory bond to eliminate the attachment of mechanic's or
materialmen's liens to real estate, Tenant shall require that its
contractor or itself shall take such steps as are provided by law for
the filing of said statutory bond prior to the initiation of any
construction. If a mechanic's or materialmen's lien is threatened by
any contractor or supplier, or in the event of the filing of a notice
of any such lien, Tenant will promptly take steps immediately to have
any such lien removed. If the lien is not removed within ten (10) days
from the date of written notice from Landlord, Landlord shall have the
right at Landlord's option to cause the lien to be discharged by record
of payment, deposit, bond or order of a court of competent jurisdiction
or otherwise, to pay any portion thereof and of the amounts so paid,
including attorney's fees and expenses connected therewith and interest
at the rate of eighteen percent (18%) per annum on any sums paid or
advanced, shall be deemed to be additional rent due from Tenant to
Landlord and shall be paid to Landlord immediately upon rendition to
Tenant of a xxxx therefor. Tenant will indemnify and save harmless
Landlord from and against all loss, claims, damages, costs or expenses
suffered by Landlord by reason of any repairs, installations or
improvement, made by Tenant.
Except as may be expressly provided in this Lease, nothing in this
Article 5 shall be construed to permit Tenant to place any materials
upon the Leased Premises or cause any labor or construction, or to make
any alterations, additions, replacements or substantial repairs, in or
about the Leased Premises. Landlord shall have the further right any
time, and from time to time, to post and maintain on the Leased
Premises such notices as Landlord deems necessary to protect the Leased
Premises and Landlord, from all liens of any nature whatsoever.
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No mechanic's or materialmen's liens or mortgages, deeds of trust, or
other liens of any character whatsoever created or suffered by Tenant
shall in any way, or to any extent, affect the interest or rights of
Landlord in any buildings or other improvements on the Leased Premises,
or attach to or affect Landlord's title to or rights in the Leased
Premises.
ARTICLE 6. USE OF LEASED PREMISES
6.1 Tenant's Use of Leased Premises. Tenant shall use and occupy the Leased
Premises only for conducting its steel fabrication and erection
business and related operations and for no other purpose without
Landlord's prior written consent.
6.2 Conduct of Tenant's Operations. At all times throughout the Lease term,
Tenant shall:
6.2.1 Comply with any and all requirements of any of the constituted
public authorities, and with the terms of any state or federal
statue or local ordinance or regulation applicable to Tenant
or its use, safety, cleanliness or occupation of the Leased
Premises, and save Landlord harmless from penalties, fines,
costs, expenses or damages resulting from failure to do so.
6.2.2 Give to Landlord prompt written notice of any accident, fire
or damage occurring on or to the Leased Premises.
6.2.3 Conduct its business in the Leased Premises in all respects in
a dignified manner and in accordance with high standards of
store operation.
(5) Comply with all reasonable rules and regulations of
Landlord in effect at the time of the execution of
this Lease or at any time or times, and from time to
time, promulgated by Landlord, which Landlord in its
sole discretion shall deem necessary in connection
with the demised Leased Premises, the building of
which the demised Leased Premises are a part or the
Shopping Center, including both the operation of
Tenant's business during certain minimum days and
hours and the installation of such fire
extinguishers, water buckets and other safety
equipment as Landlord may reasonably require.
6.3 Rights Reserved by Landlord.
6.3.1 Easements. Landlord expressly reserves all rights in and with
respect to the land hereby leased not inconsistent with
Tenant's use of the Leased Premises as provided in the Lease,
including (without in anyway limiting the generality of the
foregoing) the rights of Landlord to enter upon the Leased
Premises and give easements to others for the purpose of
installing, using, maintaining, renewing and replacing such
overhead or underground water, gas, sewer and other pipe
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lines, and telephone, electric, and power lines, cables and
conduits as Landlord may deem desirable in connection with the
development or use of any other property in the neighborhood
of the land hereby leased, whether owned by Landlord or not,
all of which pipelines, lines and conduits shall be buried to
a sufficient depth or raised to a sufficient height so as not
to interfere with the use or stability of the building or any
other improvements on the land hereby leased.
6.3.2 Inspection. Landlord reserves the right to, at all reasonable
times, by itself or its duly authorized agents, employees and
contractors to go upon and inspect the demised Leased Premises
and every part thereof, to enforce or carry out the provisions
of this Lease, to perform any defaulted obligation of Tenant
or for any other proper purposes.
6.3.3 Presentation for Sale or Lease. Landlord hereby reserves the
right during usual business hours to enter the Leased Premises
and to exhibit the same for purposes of sale, lease or
mortgage, and during the last six (6) months of the term of
this Lease, to exhibit the Leased Premises to any prospective
Tenant, and to display a "For Sale" sign at any time, and also
after notice from either party of intention to terminate this
Lease, or at any time within six (6) months prior to the
expiration of the Lease, a "For Rent" sign, or both "For Sale"
and "For Rent" signs, and all said signs shall be placed upon
such part of the Leased Premises as Landlord shall require,
except on doors leading into the Leased Premises. Prospective
purchasers or tenants authorized by Landlord may inspect the
Leased Premises at reasonable hours at any time.
ARTICLE 7. LIABILITY INSURANCE AND INDEMNIFICATION
7.1 Insurance. During the term of this Lease, Tenant, at Tenant's expense,
shall keep the building of which the Leased Premises are a part insured
against loss or damage by fire and the hazards covered by extended
coverage insurance in an amount equal to not less than the full
insurable value of such building. The policy or policies therefor shall
name Landlord as insured and shall be payable to Landlord. Tenant shall
not commit or permit any acts in or about the Leased Premises which may
in any way impair or invalidate such policy or policies of insurance
for the building.
Tenant shall be solely responsible for obtaining any fire or extended
coverage insurance for personal property and improvements of Tenant and
for all goods, commodities and materials stored by Tenant in or about
the Leased Premises. Tenant agrees that if any property owned by it and
located in the Leased Premises shall be damaged or destroyed, Landlord
shall not have any liability to Tenant, nor to any insurer of Tenant,
for or in respect of such damage or destruction, and Tenant shall
require all policies of risk insurance carried by it on its property in
the Leased Premises to contain or be endorsed with a provision in and
by which the insurer designated therein shall waive its right of
subrogation against Landlord.
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7.2 Operations of Tenant. All operations conducted by Tenant shall be at
Tenant's sole risk. In addition, Tenant shall procure and keep in force
at its own expense public liability insurance and comprehensive general
liability insurance, including contractual liability insurance
sufficient to cover all phases and aspects of the operation and conduct
of its business, with minimum limits of $1,000,000 on account of bodily
injuries to or death of one person, and $3,000,000 on account of bodily
injuries to or death of more than one person as the result of any one
accident or disaster, and $1,000,000 on account of damage to property.
7.3 Policy Requirements. All insurance policies required of Tenant in this
Lease shall name as insured both Landlord and Tenant (and upon request,
any other party named by Landlord) and shall contain an express waiver
of any right of subrogation against Landlord and other named insureds
designated by Landlord. All policies shall be in such companies as are
authorized to write such coverage in Arizona, shall be acceptable to
Landlord and/or its lender (which shall be named as an additional
insured if requested in writing). Tenant will further deposit the
policy or policies of such insurance or certificates thereof, with
Landlord with evidence of payment of premium at all times commencing
with the date of this Lease. Each policy shall provide against
cancellation without thirty (30) days prior written notice to the named
insureds.
7.4 Failure to Procure Insurance. In the event Tenant shall fail to procure
insurance required under this Article 7 and fails to maintain such
insurance in force continuously during the term of this Lease, Landlord
shall be entitled to procure such insurance, and Tenant shall
immediately reimburse Landlord for such premium expense.
7.5 Indemnification and Waiver of Claims. Tenant indemnifies Landlord and
waives claims as follows:
7.5.1 Indemnification. Tenant will indemnify Landlord and save it
harmless from and against any and all claims, actions,
damages, liability and expense in connection with loss of
life, personal injury and/or damage to property occurring in
or about, or arising from or out of, the Leased Premises and
adjacent sidewalks and loading platforms or areas or
occasioned wholly or in part by any act or omission of Tenant,
its agents, contractors, customers or employees. Additionally,
Tenant agrees to indemnify and hold harmless Landlord with
respect to any claim, cause of action or proceeding, in law or
in equity, civil, criminal or administrative, asserted or
brought by any person, firm or corporation. Tenant agrees to
defend at its own cost and expense any lawsuit or proceeding
referred to above and to reimburse Landlord for any reasonable
expenses or damages, including reasonable attorney's fees,
incurred in any such proceeding, lawsuit, administrative
action, or investigation commenced in whole or in part by
reason of said exclusive clause.
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15
7.5.2 Waiver of Claims. Landlord and Landlord's agents, employees
and contractors shall not be liable for, and Tenant hereby
releases all claims for, damage to person and property
sustained by Tenant or any person claiming through Tenant
resulting from any theft, fire, accident, occurrence or
condition in or upon the Leased Premises or building of which
they shall be a part.
In the event the Leased Premises or its contents are
damaged or destroyed by fire or other insured
casualty, the rights, if any, of either party hereto
against the other with respect to such damage or
destruction are waived; and all policies of fire
and/or extended coverage or other insurance covering
the Leased Premises or its contents shall contain a
clause or endorsement providing in substance that the
insurance shall not be prejudiced if the insureds
have waived the right of recovery from any person or
persons prior to the date and time of loss or damage,
if any.
7.5.3 Notice of Claims or Suits. Tenant agrees to promptly notify
Landlord of any claim, action, proceeding or suit instituted
or threatened against Landlord. In the event Landlord is made
a party to any action for damages which Tenant has herewith
indemnified Landlord against, then Tenant shall pay all costs
and shall provide effective counsel in such litigation or
shall pay, at Landlord's option, the attorney fees and costs
incurred in connection with said litigation by Landlord.
ARTICLE 8. LOSS, DESTRUCTION OR TAKING OF LEASED PREMISES
8.1 Fire or Other Casualty. Tenant shall give to Landlord prompt written
notice of any accident, fire or damage occurring on or to the Leased
Premises and shall fully cooperate with Landlord in filing all
necessary proofs of claim with insurance companies. The proceeds of
such insurance applicable to the Leased Premises shall be paid to
Landlord and Landlord shall rebuild, repair or restore the Leased
Premises to the condition at the time immediately preceding the loss or
damage; provided, however, that Landlord may elect to retain such
insurance proceeds and shall not be required to rebuild, repair or
restore the Leased Premises, and this Lease shall be terminated, if
such damage or destruction occurs within the last year of the term of
this Lease, or if more than one-third (1/3) of the Leased Premises is
so damaged or destroyed. In the event of total destruction of the
Leased Premises, the rent shall xxxxx during the period of rebuilding,
repair or restoration by Landlord, or, in the event of partial
destruction of the Leased Premises, the rent shall xxxxx pro rata
during the period of rebuilding, repair or restoration by Lessor.
8.2 Condemnation. If title to all or any portion of the Leased Premises be
taken by a public or quasi-public authority under any statute or by
right of eminent domain of any governmental body, whether such loss or
damage results from condemnation of part or all of the Leased Premises,
Tenant shall not be entitled to participate or receive any part of the
damages or award except where said award shall provide for moving or
other
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16
reimbursable expenses for Tenant under applicable statute, in which
event the latter sum shall be received by Tenant, and except that
portion of any award allocated to the taking of Tenant's trade
fixtures, equipment and personal property, or to a loss of business by
Tenant. None of the awards or payments to Landlord shall be subject to
any diminution or apportionment on behalf of Tenant or otherwise.
If any power of eminent domain is exercised during the term of this
Lease, such exercise shall not void or impair this Lease unless the
amount of the Leased Premises so taken is such as to substantially and
materially impair the usefulness of the Leased Premises for the purpose
of which they are hereby demised, in which event either party may
cancel this Lease by notice to the other within sixty (60) days after
possession is taken, and the rental herein provided shall xxxxx as of
the date possession is taken by the condemning authority.
If a portion of the Leased Premises shall be taken as herein provided
for public improvements or otherwise under the exercise of the right of
eminent domain and the Leased Premises shall continue to be reasonably
suitable for the use which is hereby authorized, then the rental herein
provided shall be reduced from the date of such taking in direct
proportion to the reduction in usefulness of the Leased Premises.
ARTICLE 9. ASSIGNMENT, SUBLETTING, MORTGAGING AND SUBORDINATION
9.1 Assignment and Subletting by Tenant. Tenant may convey, assign,
mortgage, pledge or encumber this Lease, in whole or in part, and
sublet the whole or any part of the Leased Premises, or permit the use
of the whole or any part of the Leased Premises by any licensee or
concessionaire, without first obtaining the written consent of
Landlord.
9.2 Assignment and Mortgaging by Landlord. The term "Landlord" as used in
this Lease means the owner of the Leased Premises. So long as all sums
held on Tenant's behalf in trust or escrow by Landlord are paid over to
any purchaser of said Leased Premises, Landlord shall be and is hereby
relieved of all covenants and obligations of Landlord hereunder after
the date of sale of the Leased Premises, and it shall be construed
without further agreement between the parties that the purchaser has
assumed and agreed to carry out any and all covenants and obligations
of Landlord hereunder from the date of such sale.
9.3 Subordination. This Lease shall, upon request by Landlord, be subject
and subordinate to any and all leases, mortgages or deeds of trust
hereinafter placed upon the Leased Premises, or any part thereof, and
to all future modifications, consolidations, replacements, extensions
and renewals of, and all amendments and supplements to said leases,
mortgages or deeds of trust. Notwithstanding such subordination as
aforesaid, this Lease, except as otherwise hereinafter provided, shall
not terminate or be divested by foreclosure or other default
proceedings under said leases, mortgages, deeds of trust,
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or obligations secured thereby, and Tenant shall attorn to and
recognize the landlord, mortgagee, trustee, beneficiary or the
purchaser at the foreclosure sale in the event of such foreclosure or
other default proceeding, as Tenant's Landlord hereunder for the
balance of the term of this Lease, subject to all of the terms and
provisions hereof.
9.4 Offset Statement. Tenant agrees to execute, acknowledge and deliver any
and all documents required to effectuate the provisions of this Article
9, and within ten (10) days after request therefor by Landlord or in
the event that upon any sale, assignment, lease or hypothecation of the
Leased Premises and/or the land thereunder by Landlord, an offset
statement shall be required by Tenant, Tenant agrees to deliver in
recordable form a certificate (if such be the case) that this Lease is
in full force and effect and there are no defenses or offsets thereto,
or stating those claimed by Tenant, and the dates to which rental or
other sums have been paid in advance, it being intended that any such
statement delivered pursuant to this Paragraph 9.4 may be relied upon
by any prospective purchaser, mortgagee, assignee or beneficiary.
Tenant shall also deliver to any prospective institutional lender of
Landlord, upon Landlord's reasonable request therefor, from time to
time, Tenant's latest financial statements and such specific
subordination agreement on Lender's form as may be required by Lender.
Tenant acknowledges and agrees that the promises to issue statements
pursuant to this Paragraph 9.4 are a material consideration inducing
Landlord to enter into this Lease, and that the breach of such promise
shall be deemed a material breach of this Lease, and shall constitute a
default hereunder.
ARTICLE 10. DEFAULT AND REMEDIES FOR DEFAULT
10.1 Events of Default. The occurrence of any of the following constitute an
event of default hereunder:
10.1.1 Tenant Bankruptcy/Insolvency. The filing of a petition by or
against Tenant for adjudication as a bankrupt or insolvent, or
for its reorganization or for the appointment of a receiver or
trustee of Tenant's property; an assignment by Tenant for the
benefit of creditors; or the taking of possession of the
property of Tenant by any governmental officer or agency
pursuant to statutory authority for the dissolution or
liquidation of Tenant.
10.1.2 Delinquency in Payment. Failure of Tenant to pay when due any
installment of rent hereunder or any other sum herein required
to be paid by Tenant, and the continuance of such nonpayment
for five (5) days after written notice from Landlord.
10.1.3 Abandonment. Abandonment of the Leased Premises by Tenant.
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10.1.4 Failure to Perform Covenants. Tenant's failure to perform any
other covenant or condition of this Lease within twenty (20)
days after written notice and demand, unless the failure is of
such a character as to require more than twenty (20) days to
cure, in which event Tenant's failure to proceed diligently to
cure such failure shall constitute an event of default.
10.2 Remedies of Landlord for Default by Tenant. Upon the occurrence of an
event of default, Landlord shall have the right, then or at any time
thereafter, and while such event of default shall continue, and in
addition to and not in lieu of any other remedies, relief or rights
available to Landlord at law or equity or contained in this Lease, to
do any of the following:
10.2.1 Landlord Cure. Landlord by itself or its authorized agents may
cure the default and charge Tenant for the costs of such cure,
which charge shall be due and payable as rental under this
Lease immediately upon written notice to Tenant.
10.2.2 Distrain. Landlord may distrain for rent due.
10.2.3 Exercise General Lien. Landlord may exercise its general lien
on the leasehold estate and all property in the Leased
Premises.
10.2.4 Right of Re-Entry. Landlord shall have the right to re-enter
the Leased Premises to assume and take possession of the whole
or any part thereof, and to remove all persons or personal
property by direct or summary action, or in a different type
of suit or proceeding, by force or otherwise, without being
deemed guilty of trespass or other actionable wrong by reason
thereof, and without being liable for the damages therefor or
in connection therewith, and, after demand made therefor,
Tenant or anyone in possession claiming under Tenant shall be
deemed guilty of unlawful detainer and subject to such summary
or other action as may be provided by law. Additionally,
Landlord may relet the Leased Premises as the agent for and in
the name of the Tenant, at any rental readily acceptable,
applying the proceeds first to the payment of such rent as the
same comes due, and toward the fulfillment of the other
covenants and agreements of Tenant herein contained, and the
balance, if any, shall be paid to Tenant; and the Tenant
hereby agrees that if Landlord shall recover or take
possession of said Leased Premises as aforesaid and be unable
to relet and rent the same so as to realize a sum equal to the
rent hereby reserved, Tenant shall pay to Landlord any loss or
difference of rent for the remainder of the term.
10.2.5 Termination of Lease. Landlord, irrespective of the date on
which its right of re-entry shall have accrued or be
exercised, shall have the
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right, whether for rent or possession or otherwise, to forfeit
this Lease and terminate the state of tenancy hereby created.
This right to terminate is exercisable by a written notice to
Tenant, which written notice may be part of a notice of
default previously delivered to Tenant, and, as such, may be
conditioned upon Tenant's failure to cure the default and the
event of default. The termination may be made effective as of
the event of default or thereafter, and, if not otherwise
specified, will be deemed to be effective immediately. Upon
such termination and forfeiture, Landlord shall be entitled to
and may take immediate possession of the Leased Premises, any
other notice or demand being hereby waived. Such termination
does not, however, release Tenant from liability for rentals
then overdue or remaining under the Lease but shall operate to
accelerate the entire balance of the term rental, which shall
become immediately due and payable by Tenant, along with all
overdue rentals and charges.
10.3 Non-Waiver of Remedies. It is expressly agreed that neither the taking
of possession of the Leased Premises nor the institution of any
proceedings by way of unlawful detainer, ejectment, quiet title, or
otherwise, to secure possession of the Leased Premises, nor the
re-entry by Landlord with or without the institution of such
proceedings, nor the rerenting or subletting of the Leased Premises,
shall operate to terminate this Lease in whole or in part, nor of
itself constitute an exercise of Landlord's option to do so, but only
by the giving of the written notice specifically specifying termination
shall such termination be effected.
In the event Tenant breaches this Lease, or any covenant, term or
condition hereunder, and abandons the Leased Premises, this Lease shall
continue in force and effect for so long as the Landlord does not
terminate Tenant's right to possession, and Landlord may enforce all
rights and remedies of Landlord including, without limitation, the
right to recover rental as it becomes due hereunder. Acts of
maintenance or preservation or efforts to relet the Leased Premises, or
the appointment of a receiver upon the initiation of the Landlord to
protect the Landlord's interest under this Lease shall not constitute a
termination of Tenant's right to possession.
Waiver by Landlord of any default, breach or failure of Tenant under
this Lease shall not be construed as a wavier of any subsequent or
different default, breach or failure. In case of a breach by Tenant of
any of the covenants or undertakings of Tenant, Landlord nevertheless
may accept from Tenant any payments hereunder without in any way
waiving Landlord's right to exercise the remedies hereinbefore provided
for by reason of any other breach or lapse which was in existence at
the time such payment or payments were accepted by Landlord.
It is expressly understood that the enumeration herein of express
rights, options and privileges shall not limit Landlord nor deprive
Landlord of any other remedy or action
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or cause of action by reason of any default of Tenant, including the
right to recover from Tenant any deficiency upon re-renting.
The specific remedies to which Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which they may be lawfully
entitled in case of any breach or threatened breach by either of them
or of any provisions of this Lease.
ARTICLE 11. GENERAL PROVISIONS
11.1 No Brokers. Neither Landlord nor Tenant has employed a broker who has
or may have a legitimate claim to a commission arising from Tenant's
acceptance of the Lease.
11.2 No Partnership. Notwithstanding any other express or implied provision
of this Lease, it is understood that Landlord does not in any way or
propose a partnership or joint venture with Tenant in the conduct of
Tenant's business.
11.3 Successors and Assigns. All rights, obligations and liabilities herein
given to, or imposed upon, the respective parties hereto shall extend
to and bind the several and respective heirs, executors,
administrators, successors, sublessees, and assigns of said parties,
subject to the provisions of Article 9; provided, however, that the
liability of Landlord hereunder and any successor in interest and title
to the Leased Premises shall be limited to its interest in the Leased
Premises, and no other assets of the Landlord other than its interest
in the Leased Premises shall be affected by reason of any liability
which said Landlord or successor in interest may have under this Lease.
11.4 Notices. Wherever in this Lease it shall be required or permitted that
notice or demand be given or served by either party to this Lease to or
on the other, such notice or demand shall not be deemed to have been
duly given or served unless made in writing and either personally
delivered or forwarded by certified mail, return receipt requested,
postage prepaid, to the address for each party provided below. Such
addresses may be changed from time to time by either party by serving
notices as above provided. While Tenant is in possession of the Leased
Premises, notices to the Tenant may also be delivered or forwarded by
certified mail to the Leased Premises.
Address for Tenant: Schuff Steel Company
000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Address for Landlord: 19th Avenue/Xxxxxxxx Limited Partnership
000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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11.5 Attorney's Fees. In the event that legal or arbitration proceedings are
brought or commenced to interpret or enforce the terms of this Lease,
the prevailing party shall be entitled to recover from the other party
all costs and expenses of such proceedings, including reasonable
attorneys' fees, whether or not any proceedings are prosecuted to
judgment.
11.6 Scope and Interpretation of this Agreement.
11.6.1 Entire Agreement. This Lease shall be considered to be the
only agreement between the parties hereto pertaining to the
Leased Premises. It is understood that there are no oral
agreements between the parties hereto affecting this Lease,
and this Lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and
understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject
matter thereof, and none shall be used to interpret or
construe this Lease. It is further agreed by and between the
parties hereto that there shall be no modification or
amendment to this Lease, except as may be executed in writing
between the parties hereto. It is further understood by Tenant
that Landlord may not now, or in the future, own all of the
Leased Premises. Tenant agrees not to cancel its Lease,
reduce, xxxxx, or offset rents, or pursue any other remedies
under this Lease, or at law or equity, with respect to
Landlord, for any violation, breach or default of this Lease
by virtue of any act or omission on, or with respect to,
property not owned by Landlord.
11.6.2 Headings/Captions. The headings or captions of Articles or
Paragraphs in this Lease are for convenience and reference
only and they in no way define, limit, or describe the scope
or intent of this Lease or the provisions of such Articles.
11.6.3 Gender and Interpretation of Terms and Provisions. As used in
this Lease and whenever required by the context thereof, each
number, both singular or plural, shall include all numbers,
and each gender shall include all genders. Landlord and
Tenant, as used in this Lease or in any other instrument
referred to in or made a part of this Lease, shall likewise
include both the singular and the plural, a corporation,
co-partnership, individual or person acting in any fiduciary
capacity as executor, administrator, trustee, or in any other
representative capacity. All covenants herein contained on the
part of Tenant shall be joint and several.
11.6.4 Time of Essence. Time is hereby expressly declared to be of
the essence of this Lease and of each and every covenant,
term, condition and provision hereof.
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11.6.5 Impartial Construction. The language in all parts of this
Lease shall be in all cases construed as a whole according to
its fair meaning and not strictly for nor against either
Landlord or Tenant.
11.6.6 Governing Law. The laws of the State in which the Leased
Premises are located shall govern the validity,
interpretation, performance and enforcement of this Lease.
11.6.7 Partial Invalidity. If any term covenant or condition of this
Lease or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term
covenant or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable shall
not be affected thereby, and each term, covenant or condition
of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
11.6.8 Amendment. Oral agreements in conflict with any of the terms
of this Lease shall be without force and effect, all
amendments to be in writing executed by the parties or their
respective successors in interest.
11.7 Execution and Delivery of Lease. The submission of this Lease for
examination does not constitute a reservation or option for the Leased
Premises. This Lease shall be executed in duplicate and shall become
effective as of the date first written only when an executed original
is delivered to each party.
IN WITNESS WHEREOF, Landlord and Tenant hereby execute this Lease, on
their own behalf or through their duly authorized representative.
LANDLORD:
19th AVENUE/XXXXXXXX LIMITED PARTNERSHIP,
an Arizona limited partnership
By: /s/Xxxxx X. Xxxxxx
____________________________________
_________________, General Partner
TENANT:
XXXXXX STEEL COMPANY, an Arizona corporation
By: /s/Xxxxx X. Xxxxxx
____________________________________
Xxxxx X. Xxxxxx, President
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STATE OF ARIZONA )
)ss.
COUNTY OF MARICOPA )
On this _____ day of ____________, 1997, ________________
______________________ who is known to me or satisfactorily proven to me to be
the person whose name is subscribed to this Lease, personally appeared before
me, a notary public, and acknowledged, that he/she executed this Lease on in the
capacity so indicated for the principal named.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
-----------------------
STATE OF ARIZONA )
)ss.
COUNTY OF MARICOPA )
On this _____ day of ____________, 1997, Xxxxx X. Xxxxxx, who is known
to me or satisfactorily proven to me to be the person whose name is subscribed
to this Lease, personally appeared before me, a notary public, and acknowledged,
that he executed this Lease on in the capacity so indicated for the principal
named.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
----------------------
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EXHIBIT "A"
LEASE
0000 X. XXXXXXXX XXXXXX IN PHOENIX, ARIZONA
LEGAL DESCRIPTION
Lots 25 to 29, inclusive and 51 to 54, inclusive, WISE ADDITION, according to
Book 5 of Maps, page 27, records of Maricopa County, Arizona; AND
The North half of that part of the alley shown on plat of said WISE ADDITION,
abandoned by Resolution No. 15516, recorded in Docket 14849, page 1190, lying
East of the East line of the West 7 feet of said Lot 25 extended South and
West of the East line of Lot 29 extended South; AND
The South half of that part of the alley shown on plat of said WISE ADDITION,
abandoned by Resolution No. 1516 recorded in Docket 14849, page 1190 lying East
of the West line of said Lot 51 extended North and West of the West line of the
East 26 feet of said Lot 54 extended North;
EXCEPT that part of Lot 54 described as follows:
BEGINNING at the Northeast corner of said Lot 54;
Thence West along the North line of said Lot 54 to the West line of the East
26 feet thereof;
Thence South along the West line of the East 26 feet of said Lot 54 a
distance of 24 feet;
Thence Southeasterly to the intersection of the West line of the East 20 feet
of said Lot 54 with the South line of the North 64 feet of said Lot 54;
Thence South along said West line to the South line of said Lot 54;
Thence East along said South line to the Southeast corner of said Lot 54;
Thence to the POINT OF BEGINNING.
