STONEWOOD VILLAGE
FULTON COUNTY, GEORGIA
STONEWOOD PARTNERS, LLC
as
Landlord
DOVER SADDLERY, INC. D/B/A DOVER SADDLERY
as
Tenant
LEASE AND AGREEMENT
STONEWOOD VILLAGE SHOPPING CENTER
ALPHARETTA, GEORGIA
STORE
# ____________
Dated:
December ____________, 2007
STONEWOOD VILLAGE
LEASE
THIS LEASE is made as of the
___ day of December, 2007, by and between STONEWOOD PARTNERS,
LLC, a Georgia limited liability company whose address is
3801 Parian Ridge Rd, N.W., ATLANTA, GEORGIA 30327
(hereinafter referred to as “Landlord”) and DOVER
SADDLERY RETAIL, INC. D/B/A DOVER SADDLERY, a Massachusetts
corporation, with its address at 525 Great Road, Littleton,
Massachusetts 01460 (hereinafter referred to as
“Tenant”).
SECTION 1
DEFINITIONS
1.1 Shopping Center . The term
“Shopping Center” or the “Center” means all
that certain land and all buildings, improvements, equipment and
facilities erected thereon, located at Highway 9 and Cogburn Road,
in Fulton County, Alpharetta, Georgia 30004, as more particularly
described in the legal description of Exhibit
“A” attached hereto and by this reference made a
part hereof, as same may be altered, expanded or reduced from time
to time, subject to the provisions hereof.
1.2 Common Areas . The term
“Common Areas” means those areas, facilities,
utilities, improvements, equipment and installations in the
Shopping Center which are from time to time designated by Landlord
for the nonexclusive use or benefit of Landlord and tenants of the
Shopping Center, their employees, agents, customers, licensees and
invitees. Landlord hereby grants to Tenant: (i) the
non-exclusive right to use, in common with other tenants and
occupants of the Shopping Center, their subtenants, licensees and
invitees, the Common Areas, including but not limited to parking
areas, roads, streets, drives, cart corrals, truck and delivery
passages and areas, customer loading zones, landscaped and planted
areas, service areas, shared trash enclosures and facilities,
parking lot lighting, exterior ramps, entrances to and exits from
the Shopping Center, sidewalks, pylon or monument sign structures,
and shared utility facilities now or hereafter made available or
maintained by Landlord in the Shopping Center and (ii) all
easements or other rights under any instrument creating covenants,
conditions, easements, restrictions or other rights with respect to
any portion of the Shopping Center.
SECTION 2
DEMISE OF PREMISES AND TERM
2.1 (a) Premises . Landlord
hereby leases and demises to Tenant those certain premises
slant-hatched in red on the site plan (“Site Plan”)
attached hereto as Exhibit “A-1” and by this
reference made a part hereof, which premises contains approximately
ten thousand (10,000) square feet of floor area with dimensions of
approximately 60 feet in width and approximately 171.3 feet in
depth (hereinafter referred to as the “Premises”) in
the Shopping Center together with the nonexclusive right to use the
Common Areas subject to such rules and regulations attached hereto
as Exhibit “B” and incorporated herein.
(b)
Remeasurement . Tenant shall have the right to measure the
Premises and to inspect the Premises within ninety (90) days
of Landlord’s delivery of possession of the Premises, in
order to ensure that the “as built” leasable square
feet of the Premises differs from the floor area of the Premises
set forth in the Lease. A common factor will not be added to the
leaseable square footage when determining such square footage. The
leasable square footage of the Premises shall be calculated by
measuring to the mid-point of demising walls and to the outside of
exterior walls with no deductions for columns or chases within the
Premises. In the event that the square footage of the Premises, as
determined by Tenant’s licensed architect or space planner
shall be more or less than the square footage specified in
Section 2.1 (a) hereof, then Tenant shall provide
Landlord with written notice of such dispute within ten
(10) days of the date of Tenant’s architect’s or
space planner’s measurement. If the dispute over the
leaseable square
1
footage
is not resolved by the parties within thirty (30) days of such
written notice then the parties shall submit the issue for binding
arbitration with a mutually acceptable, independent architect. In
the event that the square footage of the Premises is less than ten
thousand (10,000) square feet then the square footage of the
Premises as specified in this Lease shall be adjusted to reflect
the actual size of the Premises, otherwise there shall be no
adjustment. In accordance with the preceding sentence, the Minimum
Rent and as a result the Tenant’s proportionate share
specified herein, Landlord’s Cash Allowance specified in
Exhibit E hereof, and any other calculation based upon the
floor area of the Premises shall be adjusted based upon such actual
size of the Premises as measured and the per square foot rental
rate provided herein but in no event shall Minimum Rent increase
per the adjusted actual size..
2.2 (a) Commencement and
Expiration Dates of Term . The term of this Lease (herein
“Term”) and Tenant’s obligation to pay Minimum
Rent, additional rent and any charges hereunder shall commence the
earlier of: (i) the date Tenant opens for business in the
Premises, or (ii) ninety (90) days following
Landlord’s Delivery Date (as hereinafter defined) of the
Premises to Tenant (the “Commencement Date”).
Notwithstanding anything to the contrary set forth herein, in no
event shall the Commencement Date be deemed to occur until the
parking areas of the Shopping Center shall be in good condition,
properly lighted, properly paved and line painted and with curbs,
curb cuts and roadways of the Shopping Center, as designated on
Exhibit A-1 in good repair and properly marked. In addition,
notwithstanding anything to the contrary set forth herein, in no
event shall Tenant be required to accept possession of the Premises
nor shall Landlord’s Delivery Date be deemed to occur until
Tenant has obtained any and all permits necessary for Tenant to
commence performance of Tenant’s Work in the Premises. Tenant
agrees that Tenant shall use due diligence to apply for all such
permits within ten (10) days of Landlord’s approval of
Tenant’s Plans (as defined in Section 2.3(b) hereof) and
Tenant shall thereafter utilize its commercially reasonable efforts
to obtain such permits as expeditiously as possible. The Term shall
end, unless sooner terminated as hereinafter provided, on the last
day of the ten (10) consecutive Lease Years following the
Commencement Date. As used in this Lease, “Term,”
“Lease Term,” and “Term of this Lease”
include the Renewal Periods of the Term of the Lease.
(b)
Lease Year . The first lease year shall commence on the
Commencement Date as defined in Section 2.2(a) hereof and end
on the January 31 st following
twelve (12) consecutive full calendar months (“First
Lease Year”). Landlord and Tenant acknowledge the First Lease
Year shall be more than twelve (12) calendar months. Each
subsequent lease year shall commence on February 1 st and end on the
following January 31 st (herein
“Lease Year”).
(c)
Renewal Periods . Provided Tenant shall not then be in
default under this Lease beyond applicable grace periods, Tenant
shall have the option to extend the Term hereof for two
(2) additional periods of five (5) years each (the
“Renewal Periods”), upon the same terms and conditions
as set forth in the Lease, taking into account increases in Minimum
Rent set forth in this paragraph. Tenant may exercise a Renewal
Period by notifying Landlord in writing not less than one hundred
eighty (180) days prior to the expiration of the Term. In the
event that Tenant shall fail to notify Landlord in writing within
such one hundred eighty (180) period, the Renewal Period shall
be deemed to have been waived and shall be null and void, and
Tenant shall have no further right or privilege to exercise any
such Renewal Period.
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Lease Years |
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Rent Per Sq. Foot |
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Annual Minimum Rent |
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Monthly Minimum Rent |
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11-15
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$ |
19.97 |
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$ |
199,650.00 |
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$ |
16,637.50 |
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16-20
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$ |
21.96 |
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$ |
219,615.00 |
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$ |
18,301.25 |
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Based upon a floor area of Premises
of 10,000 square feet
2.3 Acceptance of Premises by
Tenant .
(a) Except
for Landlord’s Work and any delivery requirements
specifically provided herein, Tenant agrees to otherwise accept
possession of the Premises in an “as is” condition as
tendered by Landlord. Tenant agrees that no representations with
respect to the conditions of the Premises and no
2
promises
to decorate, alter, repair or improve the Premises have been made
by Landlord, except as may be otherwise expressly set forth in this
Lease and/or on Exhibit “D” hereto.
(b)
Landlord’s Delivery Date . Landlord shall construct
the Premises in accordance with Landlord’s scope of work,
specifications and conditions entitled “Stonewood Village
— Landlord’s Work” annexed hereto and made a part
hereof as Exhibit “D” (“Landlord’s
Work”). Landlord shall perform all Landlord’s Work as
identified on Exhibit “D” at Landlord’s
sole cost and expense prior to delivery of possession of the
Premises to Tenant. Landlord and Tenant hereby agree that in the
event of an ambiguity between this Lease and Exhibit
“D” attached hereto, Exhibit “D”
shall supercede and take precedence over such ambiguity.
Notwithstanding any provision contained within this Lease to the
contrary, Landlord and Tenant represent, covenant and agree that
“Landlord’s Delivery Date” shall not be deemed to
occur unless and provided that at the time of delivery of
possession of the Premises to Tenant, the Premises shall be:
(i) constructed with Landlord’s Work substantially
completed;
(ii) vacant, free of occupants, fixtures and merchandise and
broom clean;
(ii) free
of mold and Hazardous Materials (as defined in Section 14.30
hereof) including but not limited to asbestos containing
materials;
(iii) the
plumbing, electrical, and all other necessary utility services
shall be brought up to the Premises, including the hook-up and
energizing of all utilities, and that the plumbing, electrical,
heating and air conditioning systems will all be in good working
order;
(iv) the
roof of the Building will be in good repair and free of all
leaks;
(v) Landlord shall provide Tenant with no less than thirty
(30) days prior written notice that the Premises is available
and delivery of possession, as provided herein has been made to
Tenant.
(c) Outside Delivery
Date. Landlord represents, covenants and agrees that Landlord
shall use due diligence and commercially reasonable efforts so that
Landlord’s Delivery Date shall occur and be satisfied prior
to July 1, 2008 (the “Estimated Turnover Date”).
If Landlord nonetheless fails to deliver possession of the Premises
to Tenant by August 1, 2008 for reasons other than casualty or
force majeure, then notwithstanding any contrary Lease provision,
Tenant shall receive a two (2) day for one (1) day
Minimum Rent abatement for each day Landlord delays said delivery
beyond the Estimated Turnover Date. In the event Landlord fails to
deliver possession of the Premises to Tenant by February 1,
2009 (regardless of such delay being caused by a casualty or force
majeure event), then Tenant shall have the right following such
date to terminate this Lease by providing thirty (30) days
written notice to Landlord and if said notice shall be provided
then this Lease shall terminate as provided in said notice and
neither party shall be further obligated hereunder; provided,
however, Landlord may void Tenant’s termination by achieving
Landlord’s Delivery Date prior to the expiration of such
thirty (30) day notice period.
2.4 Conditions Precedent.
(a) Landlord represents,
covenants and agrees that Landlord shall comply with the following
provisions (i) through (iv) (herein referred to as
“Conditions”) within thirty (30) days of the
Effective Date (as defined in Section 14.22 hereof) as a
condition of this Lease:
(i) Landlord
shall deliver to Tenant a copy of its most recent title insurance
policy covering the Shopping Center (the “ Title
Report ”) together with legible copies of all
documents listed as exceptions in the Title Report;
(ii) Landlord
shall deliver to Tenant a copy of the Phase I environmental
assessment of the Shopping Center which it obtained upon
acquisition of the property (the “ Environmental
Report ”).
3
Landlord
shall, at Landlord’s sole cost and expense, remove any
Hazardous Substances within the Shopping Center identified in the
Environmental Report and which are objectionable to Tenant prior to
delivery of possession of the Premises to Tenant;
(iii) Landlord
shall deliver to Tenant a Subordination, Nondisturbance and
Attornment Agreement in recordable form as provided in Exhibit
“G” attached hereto, executed by the holders of any
deeds of trust, liens, encumbrances or mortgages upon or affecting
the Shopping Center, or any part thereof, which is prior or
superior to the rights of Tenant herein;
(iv) if
Landlord is a corporation, limited liability company, partnership
or trust, Landlord shall furnish Tenant prior to the execution
hereof evidence of: (a) the legal existence of the entity or trust,
and (b) the authority of the officer, member, manager, partner
or trustee to bind the entity or trust as contemplated
herein.
(b) Contingency Notice
Notwithstanding any provision contained herein to the contrary,
within fifteen (15) days following receipt of the documents
provided in paragraph 2.4 (a) (i) through (iv) hereof
Tenant shall notify Landlord by written notice whether the
Conditions as set forth in (i) through (iv) above are
satisfied, unsatisfied, or waived (the “ Contingency
Notice ”). In the event Tenant fails to deliver the
Contingency Notice as required herein, the Conditions shall be
deemed to be satisfied.
2.4 Tenant’s Opening and
Operation .
(a) Tenant agrees following its
receipt of its use and occupancy permit which Tenant agrees to use
due diligence to obtain, to open the Premises for business on the
Commencement Date, fully fixtured, stocked and staffed. Anything
contained in this Lease, express or implied, to the contrary
notwithstanding, it is agreed that following the first thirty-six
(36) months of the Term of the Lease (herein “Operating
Period”) Tenant shall be under no duty or obligation
thereafter, either express or implied, to continuously conduct, its
business in the Premises. Further, Tenant’s failure following
the Operating Period to continuously conduct its business in the
Premises, shall not, in any way, be deemed an event of default
under this Lease, nor shall such a failure otherwise entitle
Landlord to commence or to maintain any action, suit, or
proceeding, whether at law or in equity, relating in any way to
Tenant’s failure to continuously conduct its business in the
Premises, provided that Tenant shall otherwise perform and obey the
other covenants and agreements contained in this Lease on the part
of Tenant to be performed, including the payment of all Minimum
Rent and other charges due hereunder.
(b) In the event Tenant shall
cease to operate its business in the Premises for more than ninety
(90) consecutive days, Landlord shall have the right, at any time
thereafter, for as long as Tenant’s cessation to operate is
still in effect, to terminate this Lease by giving Tenant Thirty
(30) days’ written notice of such election, and this Lease
shall terminate Thirty (30) days after receipt by Tenant of
Landlord’s written notice unless Tenant has reopened the
Premises for business during such Thirty (30) day period. For
the purpose of this paragraph, Tenant shall not be deemed to have
ceased operating its business in the Premises if Tenant is closed
temporarily for remodeling or due to any force majeure, fire or
casualty, or if Tenant is closed due to strike, lockout, inability
to obtain merchandise or any other cause beyond the reasonable
control of Tenant.
2.5 Tenant Estoppel
Certificate . The parties agree that promptly upon the
establishment of the Commencement Date, they will execute a
stipulation acknowledging said date, the expiration of the Term
date, and other relevant Lease data which shall be attached to this
Lease and made a part hereof. In addition, at any time during the
Term hereof, within fifteen (15) days after written request by
either Landlord or Tenant, the non-requesting party shall execute,
acknowledge and deliver to the other a certificate stating that
this Lease is in full force and effect and has not been modified,
supplemented or amended in any way, except as indicated in such
certificate; that all conditions and agreements hereunder to be
performed by Landlord have been satisfied or performed, except as
set forth in said certificate; that Tenant is not in default in the
payment of rent or any of the other obligations required of Tenant
hereunder; that Tenant has paid Minimum Rent, Percentage Rent and
any Additional Rent set forth hereunder as of the date set forth in
the certificate; and such other statements as Landlord may
reasonably request.
4
SECTION 3
RENT
3.1 Minimum Rent . Commencing
on the Commencement Date and subject to the provisions of this
Lease, Tenant shall pay to Landlord the following sums, without
demand, deduction or set off, except as otherwise specifically
provided herein, as Minimum Rent in advance on the first day of
each month during each Lease Year:
SEE EXHIBIT “E” FOR MINIMUM
RENT
Minimum Rent for any partial calendar
month during the Term hereof shall be prorated on a per diem
basis.
3.2 Percentage Rent . Landlord
and Tenant hereby acknowledge and agree that Tenant shall have no
obligation to pay Landlord Percentage Rent or a percentage of sale
as percentage rent hereunder nor shall Tenant have the obligation
to report its sales to Landlord unless specifically provided
hereunder.
3.3 Operating Costs ,
(a) Subject to the requirements of governmental authorities
having jurisdiction over the Shopping Center, Landlord agrees to
provide and maintain during the Term of this Lease, in reasonably
good condition the Common Areas of the Shopping Center as shown on
the Site Plan attached as Exhibit “A-1” hereto.
Landlord shall maintain and repair the Common Area in a reasonably
good manner including sweeping, striping, cleaning and repairing
the parking area, maintaining any Shopping Center monument or pylon
sign structure, removal of Common Area trash and garbage, lighting
the Common Area and maintaining landscaping. All of the aforesaid
obligations of Landlord shall be performed in accordance with good
and accepted shopping center practices throughout the Term,
Landlord recognizing that the Common Areas must be available, in
good order and condition, to serve Tenant’s customers,
employees and vendors. Landlord shall comply with all governmental
laws and regulations now in force or which may hereafter be in
force, affecting the Common Area and shall indemnify Tenant against
any liability arising from Landlord’s failure to so comply.
From the Commencement Date, and subject to the provisions hereof,
Tenant shall pay to Landlord, as additional rent, Tenant’s
proportionate share of all costs incurred by Landlord in
maintaining, repairing, operating and insuring the portions of the
Shopping Center which are the responsibility of Landlord hereunder,
hereinafter called “Operating Costs,” including,
without limitation, the total costs of operating, repairing,
lighting, cleaning, maintaining, painting, securing, managing and
insuring (including liability insurance for personal injury,
wrongful arrest or detainer, death and property damage; insurance
and extended coverage against fire, theft, flood or other casualty;
rent insurance; Worker’s Compensation insurance; fidelity
bonds for personnel; and plate glass insurance) the Shopping Center
and paying all taxes, public charges and assessments of whatsoever
nature directly or indirectly assessed or imposed upon the land,
buildings, equipment and improvements constituting the Shopping
Center and the rents therefrom, including but not limited to all
real property taxes, rates, duties and assessments, local
improvement taxes, import charges or levies, whether general or
special, that are levied, charged or assessed against the Shopping
Center by any lawful taxing authority whether federal, state,
county, municipal, school or otherwise (other than income,
inheritance and franchise taxes thereon); plus an administrative
cost (herein “Administrative Fee”) not to exceed ten
(10%) percent of Operating Costs excluding on such administrative
cost calculation taxes and assessments of any kind.
(b) Operating Costs
Exclusions . In addition to any exclusions provided in this
Lease, the following shall not be included in Operating Costs
charges to Tenant:
(A) any
dues, charges or promotional or advertising expenses for a
merchants’ or other association of the tenants in the
Shopping Center;
(B) maintenance, repairs or replacements (1) necessitated
by the negligent or wrongful act of Landlord or any other tenant,
made to correct any construction defect, or to correct
5
damage caused
by subsidence or adverse or substandard soil conditions, or
(2) of utility systems not part of the Common Area;
(C) amounts paid to entities related to Landlord in excess of
the cost of such services from any competitive source;
(D) amounts actually reimbursed from insurance proceeds,
repairs or replacements of any item under warranty or reimbursed or
reimbursable by any other tenant in the Shopping Center (excluding
tenant reimbursement of Operating Costs Charges);
(E) premiums for commercial general liability insurance on the
Common Area for coverage in excess of the limits established by
this Lease;
(F) reserves for anticipated future expenses;
(G) interest, late charges or penalties incurred as a result
of Landlord’s failure to pay bills in a timely manner;
(H) any
amounts expended by Landlord as environmental response costs for
removal, encapsulation, enclosure, clean-up, remediation or other
activities regarding Landlord’s compliance with federal,
state, municipal or local hazardous waste and environmental laws,
regulations and ordinances;
(I) capital expenditures and replacements to Common Areas
including roof replacements and parking lot repaving (other than
pot hole resurfacing or a top coat) provided, however, Landlord
shall otherwise be entitled to include the annual amortization of
capital expenditures as a part of the Operating Costs provided
Landlord amortizes the same in accordance with generally accepted
accounting principles;
(J) expenditures made more than twelve (12) months prior
to submission of demand; or
(K) Any
management, administrative or such other fees added to Operating
Costs other than the Administrative Fee specified in the preceding
Section 3.3 (a).
(c) Tenant’s
proportionate share of Operating Costs . Tenant’s
proportionate share of Operating Costs is currently 9.43% based
upon a gross leasable area of the Shopping Center of 105,282 feet.
Tenant proportionate share shall be modified and changed upon
increase or decrease of the Shopping Center or Premises in
accordance with the following formula. Tenant’s proportionate
share of Operating Costs shall be computed by multiplying Operating
Costs by a fraction, the numerator of which shall be the number of
square feet of gross leasable area of the Premises and the
denominator of which shall be the number of square feet of gross
leasable area of the Shopping Center. Tenant shall pay its
proportionate share of Operating Costs in advance based on
estimates made by Landlord from time to time but not more
frequently than twice during any calendar year. Estimates shall be
revised on or before May 1 of each Lease Year on the basis of
actual Operating Costs for the preceding year of operations. Should
Operating Costs be underestimated, Tenant shall pay any deficiency
along with the payment of Minimum Rent next due and thereafter pay
its adjusted proportionate share of Operating Costs in equal
monthly installments as herein provided. Any excess payments shall
be credited against the payments of Operating Costs next due (or
refunded to Tenant if the Term has expired), less any amounts owed
by Tenant to Landlord.
(d) Operating Costs Cap.
The Operating Costs for the first year of the Lease are estimated
to be $.75 per square foot for common area maintenance, plus an
estimate of real estate taxes of $1.25 per square foot, plus an
estimate of insurance costs of $.50 per square foot. In no event
shall the Operating Costs (exclusive of real estate taxes and
insurance costs) exceed $.75 per square foot for 2008. The
increases in the Operating Costs for each Lease Year following 2007
shall not exceed the lesser of: (i) the actual increases in
the cost comprising the Operating Costs or (ii) five percent
(5%) of the previous year’s
6
Operating Costs (herein “Operating Costs Cap”)
excluding from such Operating Costs Cap however real estate taxes,
insurance costs, common area utilities and security costs which
shall not be subject to the Operating Costs Cap and shall increase
at the rate that such costs actually increase as applicable).
(e) Audit Rights .
Tenant shall have the right to audit Landlord’s imposition of
Operating Costs for the most recently ended Lease Year provided
Tenant shall be required to utilize the services of a certified
public accountant who is not compensated on a contingency basis to
perform such audit. Tenant shall have the right to audit and
examine the books and records of Landlord with respect to any
billing to Tenant. Such audit shall be made at the sole cost and
expense of Tenant and shall be completed with all reasonable
diligence. If such audit or examination discloses any overcharge by
Landlord, Landlord shall promptly reimburse Tenant for any such
overpayment and if such overpayment by Tenant is in excess of three
percent (3%) of Tenant’s proportionate share of Operating
Costs charges, Landlord shall reimburse Tenant for the reasonable
cost of such audit or examination together with the overpayment of
such Operating Costs charges.
3.4 Common Area Control .
(a) Landlord shall have the right, subject to the provisions
of this Lease to change the size, location, elevation, nature
and/or use of any portion or all of the Common Areas, the Shopping
Center or any part thereof as Landlord may from time to time
determine, including the right to change the size thereof, to erect
buildings thereon, to sell or lease part or parts thereof, to
change the location and size of the landscaping and buildings on
the site, and to make additions to, subtractions from or
rearrangements of said buildings.
(b) Notwithstanding the
preceding paragraph 3.4 (a) to the contrary, Landlord
represents, covenants and agrees that the Shopping Center layout
shown on Exhibit “A-1” will be adhered to during
the Term so as to maintain the position of the buildings, the
parking areas, the traffic patterns, and the roadways and
passageways, and the space of Tenant. Landlord further agrees
throughout the Term, to maintain the curb-cuts as shown on
Exhibit “A-1” . Landlord agrees that there will
be no additional construction in the Shopping Center within the
area outlined and identified on Exhibit A-1 hereto as
“No Build Area”, nor any additional construction which
would impair Tenant’s use of the Premises and any
Construction Activities in the Shopping Center (as defined in
Section 3.4 (d) hereof) shall be subject to the provisions of
Section 3.4 (d) hereof. Landlord further represents,
covenants and agrees that there will be no change in the location,
shape, or dimensions of the Premises demised; and, that there will
be no change in the Shopping Center layout which would adversely
affect the accessibility to the Premises from the parking areas or
from the public streets and roadways bordering the Shopping Center,
or the visibility of Tenant’s signs or storefronts, without
Tenant’s prior written consent in each instance. Other than
the No Build Area as depicted on Exhibit “A-1”
or as required by the Design Review Board of the City of
Alpharetta, Landlord further agrees not to place any kiosks,
planters, trees, shrubs, stairs, or other obstructions in any place
in front of the Premises without Tenant’s prior written
consent in each instance.
(c) In addition to the
foregoing, Landlord covenants and agrees that it will not permit
any projections, either vertical or horizontal, to be erected or
maintained (other than Tenant’s signs or identifications)
which will project along the front or rear of the Building in which
the Premises are situated in such a manner as to obstruct the
visibility of Tenant’s signs or its storefront in any
manner.
(d) Changes to Shopping
Center Buildings . (i) Landlord may as Landlord may
reasonably determine to be appropriate, perform such demolition,
remodeling, reconstruction, renovations or changes (collectively,
“Construction Activities”) to the buildings in the
Shopping Center and the Common Areas, other than the Premises; the
area outlined and identified on Exhibit A-1 hereto as
“No Build Area”, and further, only provided Landlord
complies with the following provisions of Section 3.4 (d)
(ii) hereof.
(ii) Prior to commencing any
Construction Activities, Landlord shall submit to Tenant, for
Tenant’s review and approval, which approval shall not be
unreasonably withheld (1) a construction schedule,
(2) barricade plans and (3) a site plan indicating a
proposed construction staging area. Landlord agrees that any such
Construction Activities (i) shall be undertaken and completed
in a manner that will create compatibility of appearance and
architectural harmony with the balance of the Shopping Center,
(ii)
7
shall
not interfere with or impede at any time full-sized truck access to
the Premises and (iii) shall not materially or adversely
affect (A) pedestrian or vehicular access to or from the
Premises, or the internal circulation of vehicular traffic within
the Shopping Center, (B) visibility of the Premises or any
permitted Tenant signage, (C) the business conducted by Tenant
in the Premises or (D) the parking serving the Premises.
Landlord agrees that it shall use commercially reasonable efforts
and due diligence to minimize the impact of Construction Activities
on Tenant’s business or the operation of the Shopping Center.
Landlord, during the performance of any Construction Activities,
shall keep the areas subject to such activities in an orderly
condition and store all construction materials and equipment from
within or from an enclosed staging area approved by Tenant, The
foregoing provisions shall not be deemed to prohibit the use of
debris boxes during such remodeling by Landlord in a manner that is
consistent with standard practices in the state in which the
Premises is located during such Construction Activities.
(e) In the event that Landlord shall violate or permit a
violation of any of the provisions or covenants of this
Section 3.4, then Tenant, at any time thereafter shall have
the right to seek injunctive relief in law and equity and if
permitted by law, Tenant shall have no obligation to prove damages
or economic harm in seeking such injunctive relief.
3.5 Security Deposit .
Intentionally Deleted.
3.6 Taxes .
(a) Landlord shall pay to the
local tax authorities and other governmental agencies, all real
estate taxes, and all assessments which may be levied against the
Shopping Center and the land and buildings comprising the same.
Tenant agrees to pay to the local tax authorities and other
governmental agencies all personal property taxes which may be
levied against Tenant’s merchandise, trade fixtures, and
other personal property in and about the Premises. It is the
intention of Tenant and Landlord that all taxes and increased
taxes, assessments, fees, levies and charges for such services,
including any future levies which are a substitution or in addition
to taxes currently levied (such as, for example, taxes levied based
on the rents received by Landlord) shall be included within the
definition of Taxes for the purposes of this Lease.
(b) Commencing as of the
Commencement Date, included within Operating Costs as specified in
Section 3.3 hereof, Tenant agrees to reimburse Landlord for
Tenant’s proportionate share of any such real estate taxes
and assessments levied against the Shopping Center land and
buildings for each tax fiscal year of the Term, with the exception
of any assessment penalty added to the taxes as a result of
Landlord’s failure to timely file, with the applicable
governmental authority, any annual notification of income and
expenses for which Landlord shall be solely responsible. At least
Thirty (30) days prior to the commencement of the Term,
Landlord shall submit to Tenant Landlord’s informed estimate
of said taxes and assessments for the first full tax fiscal year to
occur during the Term.
(c) Upon request Landlord shall
forthwith provide tenant with a copy of the receipted tax bill for
which Tenant is being charged taxes under this Lease and a
computation of Tenant’s proportionate share.
3.7 Rent . As used herein, the
term “Rent”, “rent” or “rental”
shall include Minimum Rent, Percentage Rent, Tenant’s share
of Operating Costs and all other Additional Rent payable to
Landlord hereunder. As used herein, “Additional Rent”
or “additional rent” may be used to refer to all
amounts payable by Tenant to Landlord hereunder other than Minimum
Rent, and Landlord’s remedies with respect to failure to pay
of Additional Rent shall be the same as those for Minimum Rent.
“Additional Rent” shall mean Tenant’s share of
Operating Costs and all other amounts due from Tenant hereunder in
addition to Minimum Rent and Percentage Rent.
SECTION 4
USAGE
4.1 Use . During the time that
Tenant shall operate in the Premises Tenant shall only use, occupy
and operate in the Premises for the purpose of the operation of
sales and display of saddles and
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tack;
specialized apparel; horse care and stable products; and such
merchandise and related products as are sold from time to time in
any of Tenant’s other stores or catalogs, or via internet or
other electronic commerce or technologies offered by Tenant, and
related items as the same are currently operated by Tenant and for
no other purpose whatsoever.
4.2 Trade Name . Tenant shall
operate in the Premises under the trade name “Dover
Saddlery” or such other name used and adopted by Tenant
in a majority of its stores or as used by any approved or permitted
assignee or sublessee hereunder.
4.3 Rules and Regulations .
Tenant shall observe faithfully and comply with the Rules and
Regulations attached hereto as Exhibit “B” and
made a part hereof by this reference, provided such rules shall be
uniformly and nondiscriminatorily enforced and applied. In
addition, Landlord may adopt and Tenant shall comply with other
reasonable Rules and Regulations from time to time reasonably
adopted by Landlord and uniformly and nondiscriminatorily enforced
and applied for the safety, operation, care and cleanliness of the
Shopping Center or the preservation of good order therein, provided
that Tenant is notified of same. Landlord shall not be liable to
Tenant for any violation of the Rules and Regulations, or for the
breach of any covenant or condition in any lease, by any other
tenant in the Shopping Center. Landlord shall not adopt any
additional rule or regulation from those Rules and Regulations
attached hereto as Exhibit “B” which impose any
additional financial or economic consequence, fine or penalty on
Tenant or abrogate any of the provisions hereunder.
4.4 Exclusive Use . Landlord
covenants, represents and agrees that Tenant shall be the only
tenant in the Shopping Center with the right to sell saddles and
tack; specialized apparel; horse care and stable products of any
type (herein “Exclusive Use”) except such Exclusive Use
shall not apply to: (i) existing tenants with signed leases in the
Shopping Center where the permitted use of such lease at the time
of execution hereof permits the sale of saddles and tack;
specialized apparel; horse care and stable products. In the event
Tenant’s Exclusive Use is violated, the same shall be a
Landlord default and Tenant shall have the right at such time to
pay 3% of gross sales in lieu of Minimum Rent, additional rent and
all extra charges as otherwise provided hereunder, until the
violation is corrected. Should the violation of Tenant’s
Exclusive Use not be cured within 30 days of Tenant’s
notice of such violation, Tenant shall have the right thereafter,
until such default is cured, to terminate the Lease upon written
notice to Landlord. If Tenant shall provide such notice that it is
terminating this Lease then this Lease shall cease and terminate on
the date specified in such notice. Notwithstanding the foregoing,
in the event of a violation of Tenant’s Exclusive Use by
another tenant who does not have a right to change use, provided
Landlord shall use due diligence and commercially reasonable
efforts, including seeking judicial relief to prevent such
violation, Landlord shall have twelve (12) months to pursue
cessation of such violation, during which time Tenant shall
continue to pay the rental required under the Lease and Tenant
shall have no right to terminate.
SECTION 5
ALTERATION, REPAIR AND MAINTENANCE
5.1 Alterations by Tenant
.
(a) Alterations Requiring
Consent . Other than Tenant’s Work as defined herein for
which Tenant has Landlord’s approval, Tenant shall not make
any structural alterations to (including but not limited to
alterations to the exterior, the storefront, signs building
systems) nor alterations exceeding $50,000.00 for such work at such
period of time, without Landlord’s prior written approval
which approval Landlord agrees not to unreasonably withhold or
delay. All alterations, fixtures, betterments and improvements made
to or installed upon the Premises shall remain upon the Premises,
and shall become Landlord’s property upon the expiration or
earlier termination of this Lease at no cost to Landlord.
Notwithstanding anything herein to the contrary, Tenant agrees to
perform the work, if any, described on Exhibit
“C” hereto (“Tenant’s Work”)
pursuant to the provisions therein set forth and as set forth in
this Lease, following receipt of applicable permits for the
performance of such work.
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(b) Nonconsent
Alterations . Tenant shall be permitted to perform
nonstructural alterations to the Premises and to revise the
interior layout of the Premises without Landlord’s prior
written consent. Tenant shall obtain Landlord’s written
consent to any alterations or construction which affect the
structural nature of the Premises or shared building systems, which
consent shall not be unreasonably withheld or delayed.
(c) Changes Required by
Law . Any structural changes, alterations or additions in or to
the Premises or the Common Area which may be necessary or required
by reason of any law, rule, regulation or order promulgated by
competent governmental authority shall be made at the sole cost and
expense of Landlord, including but not limited to asbestos removal
and disposal and interior and exterior compliance with the
Americans with Disabilities Act (ADA) etc. Notwithstanding the
foregoing, if any such changes, alterations or additions are
required as a result of improvements made by Tenant during the Term
hereof, such changes, alterations or additions shall be made at the
sole cost and expense of Tenant. Tenant may contest the validity of
any such law, rule, regulation or order, but shall indemnify and
save Landlord harmless against the consequences of continued
violation thereof by Tenant pending such contest.
5.2 Repairs .
(a) Landlord Repairs .
Landlord shall make, at its own cost and expense, all necessary
repairs, maintenance (including painting and cleaning) or
replacements to, the exterior (excluding Tenant’s storefront
as set forth below) and the structural portions of the Premises and
the Building, including, without limitation, the roof and roof
supports, flashings, gutters, downspouts, footings, foundations,
structural supports, columns, exterior walls, bearing walls,
retaining walls, floor slab, chimney (if any), and loading docks,
so as to keep the same in good condition and repair; and Landlord
shall further maintain in good working order and repair, and shall
maintain and replace as necessary, all plumbing, pipes, tubes and
all other conduits and utility lines leading to or from the
Premises and any fire sprinkler system which may be located in or
outside of the Premises. Landlord shall also be responsible, at its
sole cost, for any required inspections, testing and/or monitoring
of any fire sprinkler and/or alarm systems in the Building.
Landlord agrees, during the first full year of Tenant’s
occupancy, to make all repairs required because of building
settlement or faulty materials or workmanship in Landlord’s
construction and to furnish Tenant with all guaranties and
warranties relating to the HVAC system. In addition to
Landlord’s obligations hereunder, Landlord shall be
responsible for the proper remediation of any mold or similar
condition at the Premises of affecting the Premises.
Landlord’s costs under this Section 20 if any shall not
in any way be included within Operating Costs. Any such repairs to
the Premises shall be made so as not to adversely affect the
appearance of Tenant’s finished Premises design upon
Landlord’s completion of such repairs. Tenant shall give
Landlord immediate written notice of the necessity for such repair
as same affects the Premises.
(b) Tenant Repairs .
Except as provided in the preceding paragraph, Tenant shall keep
the interior of the Premises, together with the storefront and all
doors of the Premises, and all electrical, plumbing, heating,
ventilating, air conditioning, sprinkler systems, and any other
mechanical installations within the Premises and exclusively
serving the Premises or located therein, whether or not in or under
the floor slab or on the roof of the Premises, in good working
order and repair (including the replacement of same, if necessary),
at its expense. Landlord will provide to Tenant a one (1) year
warranty of all parts, wiring and labor. After the warranty period,
Tenant will be responsible for all HVAC repairs, including any
required replacement thereof. Tenant agrees to employ a HVAC
contractor approved by Landlord to perform Tenant’s
obligations for maintenance of the heating, cooling and ventilating
system of the Premises, including at least quarterly inspections
and cleaning of the system together with such servicing as each
such inspection discloses or as shall be required by Landlord.
Tenant shall promptly repair, at its expense, any damage to the
Premises caused by bringing into the Premises any property for
Tenant’s use, or by the installation or removal of such
property regardless of fault or by whom such damage any be caused.
In the event Tenant fails to make such repairs, Landlord may, at
its option, but need not, following at least ten (10) days
notice to Tenant, make same and Tenant agrees to pay Landlord as
Additional Rent the cost thereof promptly upon demand by Landlord.
Tenant shall not overload the floor slab, electric wiring or
utilities serving the Premises and shall install at Tenant’s
sole expense, after first obtaining Landlord’s written
approval, any additional electric wiring that may be required in
connection with Tenant’s apparatus, equipment or
fixtures.
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(c) If Landlord fails to make
any of the repairs required to be made by Landlord under this Lease
within thirty (30) days after receipt of written notice from
Tenant of the necessity therefore, Tenant, in addition to any other
rights it may have hereunder, shall have the right to make said
repairs on behalf of Landlord and to charge Landlord for the
reasonable cost thereof. If, in an emergency, in Tenant’s
reasonable opinion, any such repairs are immediately necessary for
the proper use and enjoyment of the Premises or to avoid material
damage to the Premises, no prior thirty (30) days notice shall
be required, but Tenant shall give Landlord whatever notice is
reasonable in the circumstances and may make said repairs on behalf
of the Landlord and charge Landlord for the reasonable cost
thereof. In either event, if Landlord shall fail to pay Tenant
within thirty (30) days of receipt of an invoice therefore
with supporting documentation, Tenant may deduct the reasonable
cost thereof from up to fifty percent (50%) of Minimum Rent due or
to become due hereunder.
5.3 Liens . Tenant hereby
indemnifies Landlord against, and shall keep the Premises and the
Shopping Center free from liens for any work performed, material
furnished, or obligations incurred by the Tenant. Should liens or
claims be filed against the Premises or the Shopping Center by
reason of Tenant’s acts or omissions, Tenant shall cause same
to be discharged by payment or bond within thirty (30) days
after filing.
5.4 Use of Roof . Landlord
shall have the exclusive right to use the roof and Tenant shall not
affix any sign, aerial or other equipment or improvement on or to
the roof of the Premises.
SECTION 6
DAMAGE, DESTRUCTION OR CONDEMNATION
6.1 Casualty . Except as
otherwise provided herein, if the Premises are damaged by fire or
other insured casualty, the damage shall be promptly repaired by
Landlord to the extent of the insurance proceeds available
therefor. Landlord shall commence such repair and/or rebuilding
within sixty (60) days after the date of such damage or
destruction provided Landlord has received insurance proceeds for
the same and further provided Landlord has obtained all necessary
governmental approvals therefore, and complete such repair and/or
rebuilding within one hundred eighty (180) days after the date of
such damage or destruction. Tenant shall restore Tenant’s
improvements thereto immediately upon the completion of
Landlord’s work or simultaneously with such work to the
extent practicable. Until repairs to the Premises are completed by
Landlord, Minimum Rent, additional rent and all charges hereunder
shall be abated in proportion to the part of the Premises, if any,
which is unusable by Tenant in the conduct of its business. If:
(a) the Premises is damaged to the extent of more than forty
percent (40%) of the replacement cost thereof; or (b) the Shopping
Center or the building in which the Premises is located including
at least forty percent (40%) of the square footage of the Premises
is damaged by fire or other insured casualty to the extent of
twenty five percent (25%) or more of the replacement cost thereof,
either Landlord or Tenant may at their option terminate this Lease
by written notice to the other given within sixty (60) days
after the occurrence of the damage or destruction.
If Landlord should elect or be
obligated pursuant to this Section 6.1 to repair or rebuild
because of any damage or destruction, Landlord’s obligation
shall be limited to the basic building and any other work or
improvements which may have been originally performed or installed
at Landlord’s expense. If the cost of performing
Landlord’s obligation exceeds the actual proceeds of
insurance paid or payable to Landlord on account of such casualty,
Landlord may terminate this Lease. Tenant shall replace all work
and improvements originally installed or performed by Tenant at its
expense (including from Tenant’s insurance proceeds).
Upon the termination of this Lease
pursuant to the provisions of this Section 6.1, the parties shall
be released thereby without further obligations to the other party
coincident with the surrender of possession of the Premises to
Landlord, except for items which have theretofore accrued and be
then unpaid and such other obligation specified to survive the
termination hereof (or which by their nature must survive such
termination). In the event of such termination, all of
Tenant’s insurance proceeds covering
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Tenant’s leasehold improvements, but excluding proceeds for
trade fixtures, merchandise, signs and other personal property,
shall be disbursed and paid to Landlord, and Tenant hereby assigns
same to Landlord.
Notwithstanding any contrary
provision contained herein, in the event Landlord fails to commence
such repair and/or rebuilding within one hundred twenty
(120) days after the date of such damage or destruction or
complete such repair and/or rebuilding within two hundred seventy
(270) days after the date of such damage or destruction, then
Tenant shall have the option to terminate this Lease by giving
written notice to Landlord within thirty (30) days after the
expiration of either of such periods.
Either party hereto shall have the
right to terminate this Lease if, during the last two
(2) years of the then existing Term of this Lease, the
Premises is damaged by a cause or casualty covered by the insurance
required to be carried by Landlord, in an amount exceeding
sixty-six percent (66%) of the then reconstruction cost of said
building (which reconstruction cost for the purposes of this
Section 6.1 shall be limited to only the cost of actually
reconstructing said Premises), provided that in such event such
termination of this Lease shall be effected by written notice
within ninety (90) days of the happening of the casualty
causing such damage. Notwithstanding anything to the contrary in
this Section 6.1, in the event that Tenant has an option to
extend or renew this Lease, and the time within which said option
may be exercised has not yet expired, Tenant shall exercise such
option, if it is to be exercised at all, no later than twenty
(20) days after the occurrence of any such partial destruction
or damage occurring within the last two (2) years of the Lease
Term. If Tenant duly exercises such option during said twenty
(20) day period, then the other provisions of this
Section 8 shall apply as if the Lease Term at the time of the
damage had more than two years to run.
6.2 Condemnation .
(a)
Takin g. An appropriation or taking under the power of
eminent domain of all, or a portion, of the Shopping Center, are
sometimes hereinafter called a “taking.”
(b)
Total Taking of the Premises . If all of the Premises shall
be taken this Lease shall terminate and expire as of the date of
taking of actual physical possession of such portion of the
Premises by the condemnor, and Landlord and Tenant shall thereupon
be released from any and all further liability hereunder. In such
event Tenant, shall be entitled to participate in any condemnation
award so as to be compensated for the cost of relocation, removal
and decrease in value, as a result of such taking of Tenant’s
fixtures, equipment and stock-in-trade located in the Premises and
any other items to which Tenant is entitled under applicable law,
and, the value of the leasehold of which Tenant is being deprived
for the remainder of the Term hereof. Nothing in this
Section 6.2 shall be construed as a waiver by Landlord of any
rights vested in it by law to recover damages from a condemnor for
the taking of its right, title, or interest in the Shopping
Center.
(c)
Partial Taking.
In the event of the taking of:
(i) any portion of the Premises,
or any portion of the Shopping Center, so that the remainder
thereof is not reasonably adapted to the continued leasing of the
Premises by Tenant; or
(ii) any portion of the Common
Area of the Shopping Center so that a portion of said Common Area
is so separated from the remainder thereof that in Tenant’s
reasonable opinion the Common Area available to customers of Tenant
is so limited that the continued leasing of the Premises by Tenant
is impracticable or unprofitable; or if such change would reduce
the available number of parking spaces to less than seventy percent
(70%) of the existing parking spaces within two hundred
(200) feet of Tenant’s entrance, as such existing
parking spaces are shown on the Site Plan which is Exhibit
“A-1” hereto; or
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(iii) access, whether by a
taking or otherwise, of the Shopping Center or a portion thereof to
adjoining thoroughfares, so that accessibility is so limited and
reduced that in Tenant’s reasonable opinion the continued
leasing of the Premises by Tenant will become impracticable or
unprofitable;
then
Tenant shall have the right to cancel and terminate this Lease as
hereinafter provided. Within ninety (90) days after receipt by
Tenant from Landlord of written notice that a condemnation action
has been commenced, Tenant may, by written notice to Landlord,
notify Landlord of its election to terminate this Lease, whereupon
the parties shall be released from any and all further obligations
under this Lease and Tenant shall share in any award or sale price
as provided in Section 6.2(b) hereof.
(d)
Repair . Unless terminated pursuant to Sections 6.2(b)
or 6.2(c) above, this Lease shall remain in full force and effect.
Landlord shall promptly, at its expense to the extent of the
proceeds of the taking, make all repairs and alterations to the
Shopping Center and the improvements thereon (including, without
limitation, the Premises) necessitated by such taking so that the
portions of the Shopping Center not taken constitute a complete
architectural unit. Tenant shall repair, alter, remove or replace
its equipment and trade fixtures in the Premises as necessitated by
such taking.
(i) Tenant shall continue to
utilize the Premises for the operation of its business to the
extent that it may be practicable to do so from the standpoint of
good business. Prior to the completion of repair and restoration
work by Landlord, Minimum Rent and other charges payable by Tenant
shall be equitably abated in the proportion that the unusable part
of the Premises bears to the whole thereof effective as the date of
taking. When Tenant completely resumes business in the Premises,
Minimum Rent and other charges shall be reduced in the proportion
which the area taken or sold bears to the total area of the
Premises.
(ii) If it is impracticable for
Tenant to continue to utilize the Premises, all Minimum Rent and
other charges shall equitably abate from the time of the actual
taking or any material and adverse disturbance of Tenant’s
possession of the Premises resulting from such taking and/or the
enjoyment by Tenant of its rights in the Shopping Center hereto
resulting from such taking pursuant to this Lease, until completion
of such repair and restoration work by Landlord, arid the
expiration of such further reasonable time as shall be necessary to
enable Tenant to resume doing business in the Premises, such
reconstruction period of Tenant not to exceed ninety
(90) days.
(e)
Notice of Proceedings . Upon service on either party hereto
of any legal process in connection with any condemnation
proceedings, the party so served shall give immediate notice
thereof to the other party hereto.
(f)
Temporary Taking , In the event of a taking of the Premises,
the Common Areas and/or any other area within the Shopping Center,
or any portion thereof, for temporary use (specifically one not
exceeding sixty (60) days in duration), without the taking of
the fee simple title thereto, this Lease shall remain in full force
and effect. All awards, damages, compensation and proceeds payable
by the condemnor by reason of such taking relating to the Premises,
or relating to the Common Areas but reasonably attributable to the
Premises, for periods prior to the expiration of the Lease shall be
payable to Tenant. All such awards, damages, compensation and
proceeds for periods after the expiration of the Lease shall be
payable to Landlord. Anything contained herein to the contrary
notwithstanding, a temporary taking for any period in excess of
sixty (60) days may, at Tenant’s option, be deemed a
permanent taking and shall be governed by Sections 6.2(a) or
6.2(b), as applicable.
(g)
Taking of Sign . In the event of the taking of any pylon or
monument sign on which Tenant has installed or has the right to
install identification panels Landlord shall provide a substitute
site reasonably acceptable to Tenant for such sign with adequate
electrical power, located so as to be visible to vehicular traffic
or roadways adjacent to the Shopping Center (and Landlord shall
replace and/or rebuild any of such signage so taken at its sole
cost).
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(h)
Lease Prevails . In the event of any taking, the rights and
obligations of the parties shall be determined by this Lease and
Landlord and Tenant waive any rights at law to the contrary.
SECTION 7
UTILITIES
7.1 Payment . From the date of
Tenant’s possession of the Premises, Tenant shall promptly
pay all charges for utilities and other services furnished to the
Premises whether by Landlord or the applicable utility
company.
7.2 Utilities, Landlord
Installations, Repairs . Landlord shall have the right to run
utility lines, pipes, roof drainage pipes, conduit, wire, ductwork
or sprinkler systems where necessary, above or beneath the Premises
and to maintain the same in a manner which does not unduly
interfere with Tenant’s use thereof. Notwithstanding any
contrary provision herein, Landlord agrees that in no event shall
any Landlord installations, maintenance or repairs materially
interfere with Tenant’s use of the Premises. In the event of
substantial, material or unreasonable interference with
Tenant’s use of the Premises as a result of Landlord’s
work, repairs, alterations or modifications for more than
forty-eight (48) consecutive hours, the Minimum Rent reserved
hereunder shall be equitably abated during the duration of such
interference. Landlord covenants and agrees that it shall use all
commercially reasonable efforts to not interrupt Tenant within the
Premises during the performance of any repairs, maintenance or
installation of materials or systems in the Premises. Landlord
agrees not to make any repair or alteration to the Premises which
would require Tenant to perform any layout or cosmetic
modifications (other than de minimus changes) to the Premises.
Should Tenant be commercially unreasonably able to operate in the
Premises for the Permitted Use for a period in excess of
forty-eight (48) hours as a result of Landlord’s
interruption, Minimum Rent shall abate until Tenant is so able to
operate. Landlord shall not install, erect or maintain any signs
upon the Premises during the Term except for safety, informational
and directional signs, except that, unless this Lease shall have
previously been extended or renewed, Landlord may erect a “To
Rent” sign during the last one hundred twenty (120) days
of the Primary Term and the Extended Term, if any; provided,
however, that such sign shall not obstruct any sign of Tenant or
interfere unreasonably with the conduct of Tenant’s
business.
SECTION 8
INDEMNIFICATION
8.1 Indemnification . Tenant
hereby agrees to indemnify and hold Landlord harmless from any and
all claims, damages, liabilities or expenses arising out of
(a) Tenant’s use, possession, enjoyment, occupation or
operation of the Premises or the Shopping Center, (b) any and
all claims arising from any failure or refusal of Tenant to comply
with or perform any obligation of Tenant under this Lease,
(c) any act, omission or negligence of Tenant, its agents or
employees, except for matters attributable to Landlord’s sole
negligence or willful misconduct. Tenant further releases Landlord
from liability for any damages sustained by Tenant or any other
person claiming by, through or under Tenant due to the Premises,
the Shopping Center, or any part thereof or any appurtenances
thereto becoming out of repair, or due to the happening of any
accident, including but not limited to any damage caused by water,
snow, windstorm, tornado, gas, steam, electrical wiring, sprinkler
system, plumbing, heating and air conditioning apparatus and from
any acts or omissions of co-tenants or other occupants of the
Shopping Center, except for matters arising from Landlord’s
sole negligence or willful misconduct. Landlord shall not be liable
for any damage to or loss of Tenant’s personal property,
inventory, fixtures or improvements, from any cause whatsoever
except the willful misconduct or sole negligence of Landlord, and
then only to the extent not covered by insurance to be obtained by
Tenant in accordance with Section 9 hereof. Landlord hereby
agrees to indemnify and hold Tenant harmless from any and all
claims, damages, liabilities or expenses arising out of
(a) Landlord’s use, possession, enjoyment, occupation or
operation of any portion of the Shopping Center, (b) any and
all claims arising from any failure or refusal of Landlord to
comply with or perform any obligation of Landlord under this Lease,
(c) any act, omission or gross negligence of Landlord, its
agents or employees, except for matters attributable to
Tenant’s negligence or willful misconduct.
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SECTION 9
INSURANCE
9.1 Tenant Liability Insurance
. Tenant shall maintain at its sole expense during the Term hereof,
public liability insurance covering the Premises in an amount of
$1,000,000.00 for injury or death to any one person and
$3,000,000.00 for injury and/or death to any number of persons in
any one accident and property damage insurance in an amount of
$1,000,000.00 in companies licensed to business in the State where
the Premises is located. Tenant shall also keep in force Special
Form (“all-risk”) insurance for the full replacement
value of Tenant’s improvements and Tenant’s personal
property, including, but not limited to, inventory, trade fixtures,
furnishings and other personal property. Tenant will cause such
insurance policies to name Landlord (and at Landlord’s
request, any mortgagee of the premises or Shopping Center) as an
additional insured and to be written so as to provide that the
insurer waives all right of recovery by way of subrogation against
Landlord (and at Landlord’s request, any mortgagee of the
Shopping Center) in connection with any loss or damage covered by
the policy. In addition, Tenant shall keep in force workers
compensation or similar insurance to the extent required by law.
Tenant shall deliver said policies or certificates thereof to
Landlord within ten (10) days of the commencement of the Term.
Should Tenant fail to effect the insurance called for herein
Landlord may, at its sole option, following twenty (20) days
prior written notice to Tenant, procure said insurance and pay the
requisite premiums, in which event, Tenant shall pay all sums so
expended to Landlord, as Additional Rent following invoice. Each
insurer under the policies required hereunder shall agree by
endorsement on the policy issued by it or by independent instrument
furnished to Landlord that it will give Landlord no less than
thirty (30) days prior written notice before the policy or
policies in question shall be altered or canceled. Tenant’s
policy shall cover the Premises and the business operated by Tenant
and shall name Landlord as an additional insured.
9.2 Landlord Coverage .
(a) Landlord shall keep in full force and effect during the
Term upon the buildings and appurtenances in the Shopping Center,
property insurance with coverage at least as broad as Special
Form Causes of Loss (ISO Form 1030 or the equivalent)
with an ordinance or law coverage endorsement (ISO Form CP
0405).
(i) Said property insurance
shall name as insured Landlord, Tenant (as a loss payee to the
extent of its insurable interest in the Shopping Center) and the
beneficiary or mortgagee of any first deed of trust or first
mortgage affecting the Premises.
(ii) Said insurance shall be
written by a company or companies licensed to do business in the
state in which the Premises is located and rated Class A:VII
or better in Bests Key Rating Guide of Property-Casualty Insurance
Companies.
(iii) Said insurance shall be in
an amount of the full replacement value with a commercially
reasonable deductible for which Landlord shall be fully
responsible.
(iv) Other than the collateral
assignment to Landlord’s mortgagee, Landlord agrees that it
shall not assign, transfer or convey to any party its right in or
right to receive all or any portion of the proceeds of said
insurance without the prior written consent of Tenant.
(b) Landlord agrees that it
shall maintain in force a policy or policies of commercial general
liability insurance written by one or more responsible insurance
carriers licensed to do business in the state in which the Premises
is located which shall insure against liability for injury to
and/or death of and/or damage to property of any person of persons,
with policy limits of not less than $3,000,000.00 combined single
limit for injury to or death of any number of persons or for damage
to property of others not arising out of any one occurrence. Said
policy or policies shall provide, among other things, blanket
contractual liability insurance recognizing and insuring the
assumption of liability assumed by the purchaser thereof pursuant
to the terms of this Lease as applicable. Landlord’s policy
shall cover the Common Area of the Shopping Center.
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(c) Each of the parties hereto
agrees to maintain and keep in force, during the Term hereof, all
Workers’ Compensation and Employers’ Liability
Insurance required under applicable Workers’ Compensation
Acts.
(d) Within thirty (30) days
after written request, each of the parties hereto agrees to deliver
to the other an ACORD Form 27 as evidence that the policies of
insurance required by this Section have been issued and are in
effect. Each of such forms shall provide that the insurer shall
give the party named as an “additional interest” thirty
(30) days written notice of termination and written notice of
changes to the policy.
(f) Notwithstanding anything to
the contrary contained within this Section 9, Landlord’s
or Tenant’s obligations to carry the insurance provided for
herein may be brought within the coverage of a so- called blanket
policy or policies of insurance carried and maintained by the
insuring party, provided, however, the non-insuring party shall be
named as an additional insured thereunder as its interest may
appear and that the coverage afforded such party will not be
reduced or diminished by reason of the use of such blanket policy
of insurance, and provided further that the requirements set forth
herein are otherwise satisfied. Each party agrees to permit the
other at all reasonable times to inspect the policies of insurance
of the other which apply to the Premises.
(g) Neither Landlord nor Tenant
shall be liable to the other or to any insurance company (by way of
subrogation or otherwise) insuring the other party for any loss or
damage to any building, structure or other tangible property, or
any resulting loss of income, or losses under worker’s
compensation laws and benefits, even though such loss or damage
might have been occasioned by the acts or omissions of such party,
its agents, contractors or employees; provided the provisions of
this subparagraph shall apply only to the extent of the insurance
Coverage maintained with respect to sueh loss or damage.
SECTION 10
DEFAULT AND REMEDIES
10.1 Default and Remedies . In
the event that Tenant (a) fails to pay all or any portion of
any Rent due from Tenant hereunder or pursuant to any exhibit
hereto within ten (10) days of the date such amount is due and
Tenant’s receipt of notice of such failure (provided such
notice shall not be required any more than once in any twelve
(12) month period); (b) fails to comply with or perform
any other obligation of Tenant hereunder (i.e., any obligation not
involving the payment of money by Tenant) within thirty
(30) days of the date the same is required to be performed and
Tenant’s receipt of notice of such failure (provided such
notice shall not be required any more than twice in any twelve
(12) month period); (c) fails to conduct business in the
Premises during the Operating Period as herein required except for
closures not to exceed ninety (90) days due to casualty,
remodeling or renovation; (d) becomes bankrupt, insolvent or
files any debtor proceeding, takes or has taken against Tenant any
petition of bankruptcy; takes action or has action taken against
Tenant for the appointment of a receiver for all or a portion of
Tenant’s assets, files a petition for a corporate
reorganization; makes an assignment for the benefit of creditors,
or if in any other manner Tenant’s interest hereunder shall
pass to another by operation of law (any or all of the occurrences
in this said Section 10.1(d) shall be deemed a default on
account of bankruptcy for the purposes hereof and such default on
account of bankruptcy shall apply to and include any Guarantor of
this Lease); (e) abandons the Premises, failing to continue to
pay all rent hereunder; or (f) commits waste to the Premises;
then Tenant shall be in default hereunder and Landlord may, at its
option and without further notice to Tenant, terminate
Tenant’s right to possession of the Premises, with or without
terminating this Lease, and re-enter and resume possession of the
Premises, and may thereupon remove all persons and property from
the Premises, with resort to process of a court of competent
jurisdiction. Landlord shall be obligated to use reasonable efforts
to mitigate damages hereunder provided the same shall not require
Landlord to provide preferential treatment to the leasing of the
Premises as opposed to the leasing of other available space in the
Shopping Center. If Landlord terminates Tenant’s right to
possession of the Premises without terminating this Lease, Landlord
may, at any time thereafter, terminate this Lease. Tenant hereby
waives all rights of redemption and all other statutory or judicial
rules at variance with the provisions of this Lease.
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Notwithstanding such re-entry by
Landlord, Tenant hereby indemnifies and holds Landlord harmless
from any and all loss or damage which Tenant may incur by reason of
the termination of this Lease and/or Tenant’s right to
possession hereunder pursuant to this Section 10.1 or any
other provision of this Lease. In no event shall Landlord’s
termination of this Lease and/or Tenant’s right to possession
of the Premises abrogate Tenant’s agreement to pay rent and
additional charges due hereunder for the full Term hereof.
Following re-entry of the Premises by Landlord, Tenant shall
continue to pay all such rent and additional charges as same become
due under the terms of this Lease, together with all other
reasonable expenses incurred by Landlord in regaining possession
until such time, if any, as Landlord relets same and the Premises
are occupied by such successor. Upon reletting, sums received from
such new lessee by Landlord shall be applied first to payment of
costs incident to reletting; any excess shall then be applied to
any indebtedness to Landlord from Tenant other than for Minimum and
any excess shall then
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