Exhibit 10.1
LEASE
GEORGIA,
CATOOSA COUNTY.
This
Lease, made this 2 nd
day of June 1970, by and between Catoosa Enterprises, Inc.
hereinafter called “Lessor,” and Shop-Rite, Inc.
and American Consumers, Inc., hereinafter jointly called
“Lessee.”
WITNESSETH:
PREMISES
The
Lessor, for and in consideration of the rents, covenants,
agreements, and stipulations hereinafter mentioned, reserved,
and contained, to be paid, kept and performed by the Lessee,
has leased and rented, and by these presents does lease and
rent, unto the said Lessee, and said Lessee hereby agrees to
lease and take upon the terms and conditions which hereinafter
appear, the following described property, hereinafter called
“Premises:” 12,000 square feet of floor
space in the City of Ringgold, Catoosa County, Georgia,
described as follows:
All
that tract or parcel of land lying and being in Land Lots Nos.
170 and 191 in the 28 th
District and 3 rd
Section of Catoosa County, Georgia, and described as
follows: BEGINNING at the point located south 1
degree 25 minutes west 62 feet, south 88 degrees 35 minutes
east 29 feet, and south 1 degree 25 minutes west 150 feet from
the point on the south side of LaFayette Street which is
located north 83 degrees 29 minutes east 442.1 feet from the
southeast corner of the intersection of LaFayette Street and
Nance Lane; thence south 88 degrees 35 minutes east 100 feet;
thence south 1 degree 25 minutes west 120 feet; thence north
88 degrees 35 minutes west 100 feet; thence north 1 degree 25
minutes east 120 feet, containing 12,000 square
feet.
TOGETHER
with an easement for drive and parking area which is described
as follows: BEGINNING at a point on the south side
of LaFayette Street 277.5 feet north 83 degrees 29 minutes
east from the southeast corner of the intersection of
LaFayette Street and Nance Lane; thence north 83 degrees 29
minutes east along the south side of LaFayette Street 164.6
feet; thence south 1 degree 25 minutes west 150 feet; thence
south 88 degrees 35 minutes east 29 feet; thence south 1
degree 25 minutes west 182 feet; thence north 88 degrees 35
minutes west 192 feet; thence north 1 degree 35 minutes east
271 feet to the point of beginning, said easement being for
the common use of all present and future tenants of the
property of Lessor, having been designated by it as Ringgold
Plaza Shopping Center, and the drive and parking areas being
more fully shown on plat of the property herein described
prepared by N. B. DeLoach, Surveyor, and recorded in Plat Book
______, page _____, in the Office of the Clerk of the Superior
Court of Catoosa County, Georgia.
No
easement for light or air is included in the
premises.
II
TERM
The
term of this lease shall be fifteen (15) years, beginning on
the date that said premises are ready for occupancy and
opening for business by Lessee, said commencement date to be
noted in a memorandum agreement which Lessor and Lessee shall
execute and which shall be attached to this lease shall become
a part hereof.
III
RENTAL
Lessee
agrees to pay Lessor a monthly rental of One Thousand, Seven
Hundred Fifty Dollars ($1,750) in advance on the first day of
each month from the commencement of the term of this lease,
said monthly installment being a minimum guaranteed
rental. In addition thereto, Lessee agrees to pay
to Lessor a percentage rental equal to One and One-fourth
percent (1-1/4%) of the Lessee’s gross sales made from
the demised premises in excess of ONE MILLION, SIX HUNDRED
EIGHTY THOUSAND DOLLARS ($1,680,000) for each twelve (12)
months’ period computed from the commencement of the
term of this lease. The term “gross
sales” as used herein is hereby defined to mean and
shall be the total amount of the dollar value of all sales of
merchandise and services by or for the account of Lessee, both
on cash and on credit. The amount of the dollar
value of bona fide refunds or credit granted for return of
merchandise and all state sales or federal excise taxes and
uncollected credit accounts shall be charged as a credit in
reduction of the gross amount of sales for the period within
which such refunds or credits shall have been
made.
IV
RECORD OF SALES
Lessee,
during the term of this lease, shall maintain and keep, or
cause to be maintained and kept, at said premises or such
other location agreeable to Lessor a full, complete, and
accurate permanent record and account of all sales of
merchandise and services and all sums of money paid or payable
for or on account of or arising out of the business and all
business transactions conducted at or from said premises by or
for the account of Lessee, for each day of the term
thereof. Lessee shall furnish to Lessor so much of
an annual certified audit as reflects the foregoing; and
following receipt of said audit annually, Lessor and its duly
authorized agents or representatives shall be entitled to
inspect such records and accounts and supporting records at
reasonable times during ordinary business hours where such
records are located. Lessee shall keep and preserve
or cause to be kept and preserved said records for not less
than twelve (12) months after the due date and payment of any
percentage rental due under the terms thereof.
V
REPORTS
On
or before the end of the second month following the close of
each fiscal year of Lessee and annually thereafter until
termination of this lease, Lessee, at the place where the rent
herein reserved shall be payable, shall deliver to Lessor, or
the person, firm or corporation to whom such rent shall be
payable, a complete written statement showing in all
reasonable detail the gross amount of sales for the preceding
month, including therein a statement of the total amount of
state sales taxes and federal excise taxes paid or payable on
account thereof and the number and dollar amount of all
refunds and credits for return of merchandise, if any, made
during such period. Each such statement shall be
signed by one of the principal officers of Lessee, and if so
required by Lessor, such statements shall be signed under
oath. Lessee shall, concurrently with the delivery
of such statement, pay to the Lessor all percentage rental
payments then due hereunder.
VI
USE OF PREMISES
Premises
shall be used for the retail sale of groceries, meat, poultry,
produce, dairy products and related items ordinarily and
customarily sold by supermarkets, and no
other. Premises shall not be used for any illegal
purposes; nor in any manner to create any nuisance or
trespass; nor in any manner to vitiate the insurance or
increase the rate of insurance on premises.
VII
ABANDONMENT OF LEASED PREMISES
Lessee
agrees not to abandon or vacate leased premises during the
term of this lease.
VIII
UTILITY BILLS
Lessee
shall pay water, gas, electricity, fuel, light, heat, and
power bills for leased premises, or used by Lessee in
connection therewith. If Lessee does not pay the
same, Lessor may pay the same and such payment shall be added
to the rental pf the premises.
IX
REPAIRS BY LESSOR
Lessor
agrees to keep in good order the roof, exterior walls, paved
parking areas, exclusive of all glass, including plate glass,
and water, sewer, and sprinkler systems, but not fixtures
pertaining to such systems. Lessor gives to Lessee
exclusive control of premises and shall be under no obligation
to inspect said premises. Lessee shall at once
report in writing to Lessor any defective condition known to
it which Lessor is required to repair, and failure to do so
report such defects shall make Lessee responsible to Lessor
for any liability incurred by Lessor by reason of such
defect.
X
REPAIRS BY LESSEE
Lessee
will accept the leased premises when completed in accordance
with plans and specifications agreed upon by Lessor and
Lessee, which are attached hereto and made a part hereof by
reference. In accepting the same, Lessee covenants
that the premises have been completed in accordance with such
plans and specifications, and that the premises are suited for
the uses intended by Lessee. Lessee shall, at its
own expense, keep and maintain the said premises and
appurtenances and every part thereof, in good order and
repair, except portions of premises to be repaired by Lessor
under the terms of paragraph 9 hereof. Lessee
agrees also to keep all fixtures pertaining to heating, air
conditioning, water, sewer, electrical and sprinkler systems
in good order and repair; and agrees also that it is liable
for any damage to such heating, air conditioning, water,
sewer, electrical and sprinkler systems if such damage is due
to negligence of Lessee. Lessee agrees to return
said premises to Lessor at the expiration of this lease in as
good condition and repair as when first received, natural wear
and tear, damage by storm, fire, lighting, earthquake, or
other casualty alone excepted. Lessor agrees to
assign to Lessee all warranties on fixtures pertaining to
heating, air conditioning, water, sewer, electrical and
sprinkler systems issued to it, including all 1-year service
warranties and 5-year parts warranties.
XI
SIGNS
Lessee
shall install and maintain electric, or other artistic signs
capable of being illuminated, advertising its business or
products sold in the demised premises; and Lessee shall obtain
the necessary permits from municipal authorities for the
erection and maintenance of said signs. All such
signs are subject to the approval of Lessor and Lessee must
obtain such approval in writing prior to
installation.
XII
RUBBISH REMOVAL
The
Lessee shall keep the premises clean, both inside and outside,
at its own expense, and will remove the ashes, garbage,
excelsior, straw and other refuse from said
premises. The Lessee shall not burn any materials
or rubbish of any description upon said premises unless the
same is burned in incinerators of such structure, design and
capacity as may be approved by Lessor. The Lessee
also agrees to keep the parking area immediately adjacent to
said store free from rubbish, dirt, ashes, garbage, excelsior,
straw and other refuse. Lessee agrees to keep all
accumulated rubbish in covered containers and to have same
removed regularly. In the event the Lessee fails to
keep the demised premises and other portions heretofore
described in the proper condition, the Lessor may cause the
same to be done for the Lessee and the Lessee hereby agrees to
pay the expenses thereof on demand as additional
rent.
XIII
SIDEWALKS
The
Lessee shall neither encumber nor obstruct the sidewalks
adjoining said premises nor allow the same to be obstructed or
encumbered in any manner except in normal course of business,
and keep said sidewalks free of ice, snow, rubbish, and
dirt. The Lessee shall not place, nor cause to be
placed, any merchandise, vending machines or anything on the
sidewalk or exterior of premises without prior written consent
of the Lessor.
XIV
PARKING AREA AND LIGHTING FACILITIES
Lessor
will keep the parking area in repair and provide lighting
facilities, but not electricity, therefor, which shall be
mutually acceptable to the parties for such
purposes. The Lessee shall pay to the Lessor
monthly as billed its prorate share of the cost of the
electricity and providing traffic direction at request of
Lessee by uniformed police, if necessary, for the parking area
during reasonable hours, such expense to be considered as
additional rent reserved hereunder. The Lessor
shall, on behalf of the Lessee and other tenants of Lessor,
which shall include present drugstore and Shop-Rite, Inc.,
keep the parking areas, driveways, and landscaped areas if
any, in a neat and orderly condition, including the removal of
snow, ice and rubbish therefrom. The Lessee agrees
hereunder to pay its prorata share of cost thereof as
additional rent when billed. The Lessee’s
prorate share of any cost or expense shall be in the
proportion that its front foot occupancy bears to the front
foot occupancy of the entire frontage of tenants of Lessor,
including existing buildings occupied by the drugstore,
occupying other portions of the tract of land owned by Lessor
of which the leased premises are a part. Lessee
shall have the right to inspect Lessor’s records of any
such charges annually for purpose of determining accuracy
thereof.
XV
DESTRUCTION OF OR DAMAGE TO PREMISES
If
premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this lease shall terminate as of
the date of such destruction, and rental shall be accounted
for as between Lessor and Lessee as of that
date. If premises are damaged but not wholly
destroyed by any such casualties, rental shall abate in such
proportion as use of premises has been destroyed and Lessor
shall restore premises to substantially the same condition as
before damaged as speedily as practicable, whereupon full
rental shall recommence.
XVI
INDEMNITY
Lessee
agrees to indemnify and save harmless the Lessor against all
claims for damages to persons or property by reason of the use
or occupancy of the leased premises, excluding common areas,
and all expenses incurred by Lessor on account thereof,
including attorney’s fees and court costs.
XVII
GOVERNMENTAL ORDERS
Lessee
agrees at is own expense, to promptly comply with all
requirements of any legally constituted public authority made
necessary by reason of Lessee’s occupancy of said
premises. Lessor agrees to promptly comply with any
such requirements if not made necessary by reason of
Lessee’s occupancy. It is mutually agreed,
however, between Lessor and Lessee, that if in order to comply
with such requirements, the cost to Lessor or Lessee, as the
case may be, shall exceed a sum equal to one year’s
rent, then Lessor or Lessee, whichever is obligated to comply
with such requirements is privileged to terminate this lease
by giving written notice of termination to the other party by
registered or certified mail, which termination shall become
effective sixty days after receipt of such notice, and which
notice shall eliminate the necessity of compliance with such
requirement by party giving such notice unless party receiving
such notice of termination shall, before termination becomes
effective, pay to party giving notice all costs of compliance
in excess of one year’s rent, or secure payment of said
sum in manner satisfactory to party giving
notice.
XVIII
CONDEMNATION
If
the whole of the leased premises, or such portion thereof as
will make premises unuseable for the purposes herein leased,
be condemned by any legally constituted authority for any
public use or purpose, then in either of said events the term
hereby granted shall cease from the time when possession
thereof is taken by public authorities, and rental shall be
accounted for as between Lessor and Lessee as of that
date. Such termination, however, shall be without
prejudice to the rights of either Lessor or Lessee to recover
compensation and damage caused by condemnation from the
condemnor. It is further understood and agreed that
neither the Lessee nor Lessor shall have any rights in any
award made to the other by any condemnation
authority.
XVIX
ASSIGNMENT AND SUBLETTING
Lessee
may sublease portions of the leased premises to other provided
sublessee’s operation is a part of the general operation
of Lessee and under the supervision and control of Lessee, and
provided such operation is within the purposes for which said
premises shall be used. Except as provided in the
preceding sentence, Lessee shall not, without the prior
written consent of Lessor endorsed hereon, assign this lease
or any interest hereunder, or sublet premises or any part
thereof, or permit the use of premises by any party other than
Lessee. Lessor covenants that such consent shall
not be unreasonably withheld. Consent to any
assignment or sublease shall not destroy this provision, and
all later assignments or subleases shall be made likewise only
on the prior written consent of Lessor. Assignee of
Lessee, at the option of Lessor, shall become directly liable
to Lessor for all obligations of Lessee hereunder, but no
sublease or assignment by Lessee shall relieve Lessee of any
liability hereunder.
XX
REMOVAL OF FIXTURES
Lessee
may, if not in default hereunder, prior to the expiration of
this lease or any extension thereof, remove all fixtures and
equipment which it has placed in premises, provided Lessee
repairs all damage to the premises caused by such
removal.
XXI
CANCELLATION OF LEASE BY LESSOR
It
is mutually agreed that in the event the Lessee shall default
in the payment of rent herein reserved when due and fails to
cure default with five days after written notice thereof from
Lessor; or if Lessee shall be in default in performing any of
the terms or provisions of this lease other than the provision
requiring the payment of rent and fails to cure such default
within thirty days after the date of receipt of written notice
of default from Lessor; or if Lessee, or either Lessee, is
adjudicated bankrupt; or if a permanent receiver is appointed
for Lessee’s, or either Lessee’s, property and
such receiver is not removed within sixty days after the
written notice from Lessor to such Lessee to obtain such
removal; or if, whether voluntarily or involuntarily, Lessee,
or either Lessee, takes advantage of any debtor relief
proceedings under any present or future law, whereby the rent
or any part thereof is, or is proposed to be, reduced or
payment thereof deferred; or if Lessee, or either Lessee,
makes an assignment for benefit of creditors; or if
Lessee’s, or either Lessee’s effects shall be
levied upon or attached under process against such Lessee, not
satisfied or dissolved within thirty days after written notice
from Lessor to such Lessee to obtain satisfaction thereof;
then, and in any of said events, Lessor at its option may at
once, or within six months thereafter, but only during
continuance of such default or condition, terminate this lease
by written notice to Lessee; whereupon this lease shall
end. After an authorized assignment or subletting
of the entire premises covered by this lease, the
occurrin
