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EXHIBIT 10.26
LEASE
AGREEMENT
THIS LEASE AGREEMENT (this "
Lease ")
is made as of September 19, 2006, by and between SOUTHWEST PREMIER
PROPERTIES, L.L.C., a Texas limited liability company, whose
address is P.O. Box 20683, Phoenix, Arizona 85036 ("
Landlord "),
and CENTRAL FREIGHT LINES, INC., a Texas corporation, whose
executive office is 15333 N. Pima Rd., Suite 230, Scottsdale, AZ
85260 ("
Tenant ").
RECITALS
WHEREAS, on the date hereof, Tenant is
selling to Landlord that certain property located at 2100 N.
Dragoon St., Tucson, AZ 85745, more fully described on
Exhibit "A" hereto (the "
Property ");
and
WHEREAS,
Landlord now desires to lease the Property to Tenant, and
Tenant desires to lease the Property from Landlord, in each
case on the terms set forth in this Lease.
NOW,
THEREFORE, in consideration of the foregoing Recitals and the
mutual promises set forth below, and for other good and
valuable consideration the receipt and sufficiency of which
hereby are acknowledged, the parties agree as
follows:
AGREEMENT
ARTICLE
1
THE
LEASE
SECTION
1.01. Subject to the terms and conditions set forth below,
Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Property.
SECTION
1.02. The term of this Lease is ten (10) years and shall
commence on September 19, 2006, and shall end on September 18,
2016, unless it is sooner terminated as hereinafter provided.
Landlord or Tenant may extend this Lease an additional five
(5) years by giving six (6) months written notice of the
extension to the other party. In the event that the term is
extended, the terms and conditions shall remain the same as
during the original term.
ARTICLE
2
RENT
SECTION
2.01. Tenant agrees to pay to Landlord, during the entire term
of this Lease, without abatement or set off, base rent in
monthly installments, each in the amount of Six Thousand Nine
Hundred Thirty and No/100 Dollars ($6,930.00). Rent shall be
paid in advance of each month during the term of this Lease,
on or before the last business day of each calendar month, for
the next succeeding month. Any portion of a month shall be on
a daily prorated basis.
SECTION
2.02. Tenant shall also pay after thirty (30) days notice, and
without abatement, deductions, or set off, as additional rent
hereunder, all sums, costs, and expenses which Tenant in any
other provisions of this Lease agrees to pay. In the event of
nonpayment of such sums, Landlord shall have (in addition to
all other rights and remedies) all the rights and remedies
provided herein or by law for nonpayment of rent.
ARTICLE
3
SECURITY
DEPOSIT
SECTION
3.01. None.
ARTICLE
4
IMPOSITIONS
SECTION
4.01. Tenant shall pay as and when due the charges for water,
sewer, electrical power, data lines, telephone service and
trash collection.
SECTION
4.02. Rent shall be paid to Landlord without notice or demand.
It is the intent of Landlord and Tenant that all rent payable
hereunder shall be absolutely net to Landlord, and shall be
paid, without abatement, deduction, or set off by Tenant.
Tenant shall be responsible for real estate taxes. Tenant
shall also be responsible for the taxes on Tenant's personal
property.
SECTION
4.03. All payments of rent are to be made to Landlord, at such
place as Landlord shall designate in writing to Tenant. If
after initial designation Landlord desires that rent shall be
paid and directed among other parties, then Landlord shall
make such designation in writing to Tenant, otherwise such
designation shall not be effective.
ARTICLE
5
SURRENDER
ON TERMINATION
SECTION 5.01. Tenant shall, on the last
day of the term hereof or upon any earlier termination of
this Lease, surrender the Property to Landlord in as good
condition, reasonable wear and tear excepted, as Tenant
received the Property from Landlord on the first day of the
Lease term, free and clear of all occupancies unless
expressly permitted by Landlord in writing, and free and
clear of all liens and encumbrances other than those to which
this Lease is subject.
SECTION
5.02. Tenant will, at the termination of this Lease by lapse
of time or otherwise, yield up immediate possession to
Landlord, and failing to do so, will pay as liquidated
damages, for the whole time such possession is withheld, the
monthly rent set forth in Article 2 for the month immediately
prior to the termination; but the provisions of this clause
shall not be held as a waiver by Landlord of any right of
re-entry as hereinafter set forth; nor shall the receipt of
said rent or any part thereof, or any other act in apparent
affirmance of tenancy, operate as a waiver of the right to
forfeit this Lease and the term hereby granted for the period
still unexpired, for a breach of any of the covenants
herein.
SECTION
5.03. Upon termination of this Lease, title to all permanent
improvements made or constructed by Tenant and located on the
Property shall vest in Landlord under the following terms and
conditions. Tenant shall be paid for the cost of any permanent
improvements made or constructed subsequent to the date of
this Agreement, and Tenant's cost of such improvements shall
be disclosed and agreed upon by amendment to this
Lease.
SECTION
5.04. All personal property of Tenant which shall remain on
the Property after the termination of this Lease shall, at the
option of Landlord, be deemed to have been abandoned and may
be retained by Landlord as its property or be disposed of,
without accountability, in such manner as Landlord may see
fit. However, Landlord shall also have the right to require
Tenant to remove any such personal property at Tenant's own
cost and expense and to repair any damages caused by such
removal. Upon Tenant's failure to do so upon fifteen (15) days
notice from Landlord, Landlord may cause such personal
property to be removed and charge all cost of removal to
Tenant.
SECTION
5.05. The provision of this Article 5 shall survive the
expiration or any termination of this Lease.
ARTICLE
6
INSURANCE
SECTION 6.01. During the term of the
Lease, Tenant shall at its sole cost and expense, keep all
its personal equipment and furnishings insured. Landlord
assumes no responsibility for Tenant's personal property and
belongings. Tenant shall insure the buildings covered under
this Lease.
SECTION
6.02. In addition to the insurance to be provided and
maintained by Tenant pursuant to Section 6.01 above, Tenant at
its sole cost and expense, but for the mutual benefit of
Landlord and Tenant, shall maintain during the term of this
Lease, personal injury and property damage liability insurance
against claims for personal injury, death, or property damage,
occurring in, on, or about the Property. Such insurance shall
afford minimum single limit protection of not less than Two
Million Dollars ($2,000,000).
SECTION
6.03. Any additional insurance carried by Tenant shall not
reduce the insurance required under this Lease to be carried
by Tenant on behalf of Landlord, nor cause Landlord to become
a co-insurer with any other person or entity.
SECTION
6.04. All insurance provided for in this Article shall be
effected under valid and enforceable policies in form
reasonably satisfactory to Landlord, issued by insurers of
recognized responsibility which are licensed to do business
under the laws of the United States and the State of Arizona.
Upon the execution of this Lease, and thereafter not less than
thirty (30) days prior to the execution dates of the expiring
policies theretofore furnished pursuant to this Article, one
original certificate thereof, bearing notations evidencing the
payment of premiums or accompanied by other evidence
satisfactory to Landlord of such payment, and further showing
Landlord to be listed as an additional named insured and loss
payee on all insurance policies provided for in this Article,
shall be delivered by Tenant to Landlord. Copies
of
all said insurance policies provided for in this Article shall
also be delivered to Landlord upon execution of this Lease and
thereafter not less than thirty (30) days prior to expiration
of said policies.
SECTION
6.05. All policies of insurance provided for in Section 6.01
and 6.02 shall name Landlord and Tenant as the insureds, as
their respective interests may appear.
SECTION
6.06. Each such certificate shall contain an agreement by the
insurer that such policy shall not be canceled or modified
without at least thirty (30) days prior written notice to
Landlord.
ARTICLE
7
LANDLORD'S
RIGHT TO CURE
SECTION 7.01. If Tenant shall at any time
fail to pay any Imposition in accordance with the provision
of this Lease, or to take out, pay for, maintain, or deliver
any of the insurance policies provided for in Article 6, or
shall fail to make any other payment or perform any other act
on its part to be made or performed under this Lease,
including the obligation to maintain and repair the Property,
then Landlord, after thirty (30) days notice to Tenant (or
without notice in case of emergency) and without waiving or
releasing Tenant from any obligation of Tenant contained in
this Lease, may (but shall be under no obligation
to):
(a)
pay
any Imposition by Tenant, or
(b)
make
any other payment or perform any other act on Tenant's part
to be made or performed as in this Lease provided, and may
enter upon the Property for such purpose and take all such
action thereon as may be necessary therefor.
SECTION
7.02. All sums so paid by Landlord and all reasonable costs
and expenses incurred by Landlord in connection with the
performance of any such act (together with interest thereon at
the maximum interest rate then permitted by Arizona law from
the respective dates of Landlord's making of each such payment
or incurring of each cost and expense) shall constitute
additional rent payable by Tenant under this Lease and shall
be paid by Tenant to Landlord upon written
demand.
ARTICLE
8
TENANT'S
DUTY TO MAINTAIN
SECTION
8.01. Throughout the term of this Lease, Tenant, at its own
cost and expense, will repair, maintain, and take good care of
the Property, and appurtenances therein and every part of and
portion of the Property and any sidewalks, parking lots,
driveways, roadways, walls, curbs, and vaults adjoining and/or
appurtenant to the Property and will keep same in good order
and condition. Tenant will neither do or suffer any waste or
injury to the Property or any part thereof, nor make any
alteration of the Property without Landlord's prior written
consent.
SECTION
8.02. Tenant hereby assumes the full and sole responsibility
for the condition, operation, repair, replacement,
maintenance, development, and management of the Property
throughout the entire term of this Lease. Tenant accepts the
Property in the condition existing as of the date of this
Lease and acknowledges that Landlord has not made any
representation or warranty as to the condition of the Property
and the present suitability for the conduct of Tenant's
business on the Property.
ARTICLE
9
COMPLIANCE
WITH LAWS
Subject
to the provision of Article 23 below:
SECTION 9.01. Throughout the term of this
Lease, Tenant at its own cost and expense, will promptly
comply with (a) all present and future laws, ordinances,
orders, rules, regulations, and requirements of every duly
constituted governmental authority or agent, and (b) all
orders, rules and regulations of the National Board of Fire
Underwriters, the Texas Fire Insurance Rating Organization or
any other body exercising similar functions.
SECTION
9.02. Tenant shall likewise observe and comply with the
requirements of all policies of insurance at any time in force
with respect to the Property and of the insurance companies
issuing them.
ARTICLE
10
LIENS
AND MORTGAGES
SECTION 10.01. Tenant will not create or
permit to be created or to remain, and will discharge, any
lien, encumbrance, or charge which might be or become a
charge on the interest of Landlord under the Lease;
provided ,
however ,
nothing herein shall require payment by Tenant of any lien or
encumbrance created by Landlord.
SECTION
10.02. If any mechanic's, laborer's or materialman's lien
shall at any time be filed against the Property or any part
thereof, Tenant, if Landlord shall so require, within ninety
(90) days after commencement of foreclosure action thereon
will cause the same to be discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction or
otherwise. If Tenant shall fail to cause such lien to be
discharged within such period, then, in addition to any other
right or remedy which Landlord may have under this Lease or
otherwise, Landlord may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be
due or by procuring the discharge of such lien by deposit or
by bonding proceedings, and in any such event Landlord shall
be entitled, if Landlord so elects, to compel the prosecution
of an action for the foreclosure of such lien by the lienor
and to pay the amount of the judgment in favor of the lienor
with interest, costs, and allowances, and recover such sums
from Tenant including the cost of discharge by deposit or
bond, plus interest, as herein above provided.
ARTICLE
11
SALE
OF LANDLORD'S INTEREST
SECTION 11.01. In the event of any sale or
exchange of the Property by Landlord and assignment by
Landlord of this Lease, Landlord shall be relieved of all
liability under all of its covenants and obligations
contained in or derived from this Lease arising out of any
act, occurrence or omission relating to the Property of this
Lease occurring after the consummation of such sale or
exchange.
ARTICLE
12
RESTRICTED
LAWFUL USE
SECTION
12.01. Tenant will not use or allow the Property or any part
thereof to be used or occupied for any unlawful purpose or in
violation of any certificate of occupancy or certificate of
compliance covering or affecting the use of the Property or
any part thereof, and Tenant will not suffer any act to be
done or any condition to exist on the Property or any part
thereof, or any article to be brought thereon, which may be
dangerous, unless safeguarded as required by law, or which, in
law, constitutes a nuisance, public or private, or which may
make void or voidable any insurance then in force with respect
thereto, unless consented to by Landlord, in
writing.
ARTICLE
13
HAZARDOUS
MATERIALS
SECTION 13.01. Tenant shall, at its
expense, comply with all applicable laws, regulations, rules,
and orders, regardless of when they become or became
effective, including without limitation those relating to
health, safety, noise, environmental protection, waste
disposal, and water and air quality, and furnish satisfactory
evidence of such compliance upon request of Landlord. Should
any discharge, leakage, spillage, emission, or pollution of
any type occur upon or from the leased Property, due to
Tenant's use and occupancy thereof, Tenant, at its expense,
shall be obligated to clean the Property to the satisfaction
of Landlord and any governmental body having jurisdiction
thereover. Tenant agrees to indemnify, hold harmless, and
defend Landlord against all liability, cost, and expense
(including without limitation, any fines, penalties,
judgments, litigation costs, and attorney's fees) incurred by
Landlord as a result of Tenant's breach of this Section
13.
ARTICLE
14
LANDLORD'S
RIGHT TO INSPECT AND ENTER
SECTION
14.01. Tenant will permit Landlord, and its authorized
representatives, to enter the Property at all reasonable times
during usual business hours for the purpose of (a) inspecting
the same, and (b) making any repairs thereto and performing
any work therein that may be necessary by reason of Tenant's
default under this Lease. Nothing herein shall imply any duty
upon the part of Landlord to do work which Tenant is required
to perform, and performance thereof by Landlord shall not
constitute a waiver of Tenant's default.
SECTION
14.02. Landlord shall upon twenty four (24) hours oral notice
have the right to enter the Property at all reasonable times
during usual business hours for the purpose of showing the
same to prospective purchasers or mortgagors
thereof.
SECTION 14.03. Landlord may, during the
progress of any work performed by Landlord, keep and store
upon the Property all necessary materials, tools, supplies,
and equipment. Landlord shall not be liable for
inconvenience, annoyance, disturbance, loss of business,
or
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