Contract
Exhibit
10.3
THIS
LEASE, made as of this 17th day of
July, 1995 by & between DMK Associates, L.P., a Virginia Limited
Partnership, whose address is X X Xxx 0000, Xxxxxxx, XX
00000-0000 (hereinafter referred to as "LANDLORD") and Dollar Tree Stores, Inc.
a Virginia corporation, whose address is 0000 Xxxxxxxx Xxxxxx, _Xxxxxxx, Xxxxxxxx
00000, (hereinafter referred to as "TENANT").
WITNESS ETH:
That in
consideration of the mutual covenants and agreements herein contained, it
is
agreed by
and between Landlord and Tenant as follows:
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A. BASIC
LEASE PROVISIONS: The following constitute the
basic provisions of this Lease:
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1
..
2.
Premises
a. Address
County
Square Footage
b.
c.
Space
Number Trade Name
Volvo
Parkway S/C
Volvo
Parkway &
Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
5,000.00
50.00 Ft
X 100.00 Ft
16 ^
DOLLAR
TREE Me
3. Permitted
Use
The
retail sale of general merchandise including, but not limited to, home decor and
accessories, costume jewelry, bathroom accessories, toys, stationery, auto
accessories, apparel, kitchen accessories, novelty
candy and snacks. Tenant agrees that no one category will
become the principal product of the retail business, and Landlord covenants that
Tenant will be permitted to occupy the Premises for the entire Term for the uses
herein specified.
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4. Delivery
Date for Possession of
Premises
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5. Lease
Commencement Date
6. Term
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7. Option
1 Option 2 Option 3
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8. Address
for notices: Landlord:
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Tenant
9. Minimum
Rent
Original
Term 1-Four Years
10. Option 1 1-Four
Years
Option
2 1-Four
Years
Option
3 1-Four
Years
10/01/1995
Sixty
days from xxxx of delivery of possession as stated in A.4 above or the date
Tenant opens for business, whichever is earlier.
Four
Years
1
- Four
Years option
1
- Four
Years option
1
- Four
Years option
DMK
Associates, L.P.
X X Xxx
0000
Xxxxxxx, XX 00000-0000
Per Sq
Ft
8.00
9.00
10.00
11,00
Dollar
Tree Stores, Inc. Real Estate Department 0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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Per Annum
40,000,00
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45,000.00
50,000,00
55,000.00
11. Percentage
Rent:
Page
1
. Original
Term 1,333,333.00 3.00%
Option
1 1,500,000.00 3.00%
Option
2 1,666,667.00 3.00%
Option
3 1,833,333.00 3.00%
12. Estimated
Operating Charges for the first year per square foot
CAM .30
Taxes .70
Insurance .07
Landlord
represents the first year's charges will not vary more than 5% from the amount
above stated charges.
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13. Annual
increases for Charges for Common Area Maintenance will not exceed more
than Fifteen percent (15.00%) of those charges for the previous
year.
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14. Radius
Restriction: None
15. Security
Deposit: None
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B. DEMISED PREMISES: Landlord hereby Leases to Tenant the demised premises
("Premises") described as
follows:
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1. The
space within a one-story unit (without basement, balcony, or mezzanine)
having an approximate total square footage of 5,000.00 square feet as
measured from the exterior face of any exterior walls and to the
centerline of common walls, identified as Unit #16 and outlined in
red on the site plan, attached hereto as Exhibit "A". The "Shopping
Center" is more fully described in the legal description, attached hereto
as Exhibit "B".
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2. Landlord
reserves the right to remeasure the Premises to determine the gross
leasable area of the Premises. In the event the remeasurement discloses
that the actual gross leasable area of the Premises as set forth in the
preceding paragraph is incorrect, Landlord and Tenant shall execute an
amendment to the Lease (i) reflecting the actual gross leasable area
of the Premises, (ii) adjusting the Minimum Rent based on the new
square footage, and (iii) adjusting Additional Rent (as defined in Section
Y.12 of this Lease) and all other charges accruing under the Lease which
are based on the actual gross leasable area of the Premises. In the event
of an adjustment, Tenant will pay any excess rent owed to Landlord within
fifteen (15) days after receipt of a statement, or Tenant shall take a
credit for any overpayment against the next minimum rent and additional
rent payments.
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C. TERM •
•' .
1. The
term of this Lease shall commence upon the earlier of:
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(a) The date which is sixty (60) days after the date Landlord delivers the
Premises to Tenant, or
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(b) The
date on which Tenant opens the Premises for business to the
public,
such date
being hereinafter called the Commencement Date and expiring on the Lease
Expiration Date in Section A.6 above, unless sooner terminated as provided
herein. Lease Year shall consist of twelve (12) full calendar months, and the
first Lease Year shall commence on the Commencement Date if the
Commencement Date shall occur on the first day of a calendar month. If the
Commencement Date does not occur on the first day of a calendar month, the first
Lease Year shall consist of the partial first month plus the following twelve
(12) full calendar months. Each succeeding Lease Year shall be twelve (12)
consecutive months following the expiration of the first Lease
Year.
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2. At
the time the Commencement Date is established, upon the request of
Landlord, the parties will promptly execute a written instrument
stipulating the Commencement Date and Expiration Date of the term of this
Lease.
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D. CONSTRUCTION
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1. Landlord shall deliver the Premises to Tenant on 10/01/1995. If Landlord is
unable to deliver the Premises within ten (10) days after the turnover date
specified, the Lease shall be null and void with no further obligation on
the part of the Landlord or the Tenant. If the
Landlord's failure to perform such
terms,
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covenants
and conditions is due to any strike, lockout, labor dispute, civil commotion,
warlike operation, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, Acts of God, fire or other
casualty which is beyond the reasonable control of Landlord, then the time
period for the turnover of the premises shall be extended for each day of delay.
TIME IS OF THE ESSENCE
OF THIS LEASE.
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2. Landlord
warrants that the heating, ventilating and air conditioning system (HVAC)
for the Premises will be in good working order on the date the
Premises are turned over to the
Tenant,
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3. Landlord
and Tenant's work are detailed in Exhibit C of this Lease.
E. RENT f
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1. Minimum
Rent. Tenant agrees to pay to Landlord, at its office or other place as
Landlord may from time to time designate, as Minimum Rent for the
Premises during the term of this Lease, without any deduction or setoff,
$8.00 per square foot, $3,333.33 in advance on the first day of each
calendar month. The amounts to be paid by Tenant for rent and additional
rent shall be prorated on a per diem basis for any partial month in the
first Lease Year.
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2. Percentage
Rent. As a further inducement for Landlord's entering into this Lease,
Tenant shall pay to Landlord, in addition to the Minimum Rent, a
percentage rate ("Percentage Rent") equal to the product obtained when the
amount of Tenant's Gross Sales {as herein defined) for any Lease Year in
excess of the Percentage Rent Breakpoint is multiplied by the Percentage
Rent Rate. The Percentage Rent for each Lease Year shall be due and
payable once Gross Sales exceed the Percentage Rent Breakpoint for such
Lease Year, Tenant shall make estimated monthly payments, on or before the
fifteenth (15th) day of each calendar month, in an amount equal to the
product of the Percentage Rent Rate times the Gross Sales for the prior
month (for the month in which the Gross Sales exceed the Percentage Rent
Breakpoint, such payments shall be made only on the excess above the
Percentage Rent Breakpoint). Tenant's obligation for the payment of
Percentage Rent shall survive the expiration or earlier termination of
this Lease.
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3. Gross
Sales. The term "Gross Sales" shall mean the aggregate gross amount of all
sales of merchandise made and all charges for services performed in the
Premises (including orders taken in the: Premises for delivery from places
other than the Premises), whether wholesale or retail, and whether cash or
credit, and including the value of all consideration other than money
received for any of the foregoing, and all amounts received by Tenant from
conducting business on or from the Premises, including without
limitation, all display fees, slotting allowances, promotional
considerations, rebates or other payments received by Tenant to stock,
promote or advertise any product, less (1) cash refunds or credit for
merchandise returned if the price of such merchandise was originally
included in Gross Sales, (2) the amount of sales and excise taxes to the
extent included in sales, and (3) the amount of sales representing
uncollectible bad checks. Merchandise transferred from the Premises to
other stores of Tenant, or merchandise returned for credit to factories or
jobbers shall not be included in determining Gross Sales. No deduction
shall be allowed for uncollected or uncollectible credit or charge
accounts.
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(a) Reporting
of Gross Sales. Tenant shall submit to Landlord on or before the fifteenth
(15th) day of each calendar month a complete and accurate record of
Tenant's gross sales for the preceding calendar month. On or before the
thirtieth (30th) day of the month following the end of each Lease
Year, Tenant shall furnish to Landlord a statement certified by Tenant's
corporate financial officer of the Gross Sales for the preceding Lease
Year.
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(b) Books
of Account. Tenant agrees to prepare and maintain at Tenant's principal
office, accurate records of the Gross Sales, which records shall be kept
in accordance with generally accepted accounting procedures, together with
local sales tax returns of Tenant relating to Tenant's Gross Sales. The
foregoing shall be open at all reasonable times to Landlord or its
representatives to enable Landlord to determine the accuracy of the
statements of Tenant's Gross Sales during and for three (3) years after
the end of the Lease Year to which the same relate. In the event an
examination or audit of records of Tenant discloses that Gross Sales as
reported in the aforesaid statements were less, by two percent (2%) or
more than the actual Gross Sales for any Lease Year, Tenant agrees to pay
Landlord the reasonable cost of any such examination or audit. If such
examination or audit discloses a discrepancy of three percent (3%) or
more, and such under-reporting of Gross Sales by Tenant shall be
deliberate in bad faith, Landlord shall also have the right to terminate
this Lease.
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Landlord
shall have the right to inspect the records of Tenant in connection
with sales made by Tenant from other stores operated by it, but only in the
event such examination becomes necessary to ascertain the Gross Sales made by Tenant
from the Premises.
F. TAXES
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1. Real
Estate Taxes and Assessments. Tenant agrees to pay Tenant's
proportionate share of all real estate taxes and assessments, together
with any and all expenses incurred by Landlord in negotiating, appealing
or contesting such taxes and assessments, both general and special, levied
and assessed against the land, buildings, and all other
improvements which may be added thereto, or constructed with the Shopping
Center. Tenant's proportionate share shall be the total amount of such
taxes and assessments multiplied by a fraction, the numerator of which
shall be the number of square feet of floor area within the Premises, and
the denominator of which shall be the gross leasable area of the existing
buildings within the Shopping Center at the time such taxes were levied or
assessed, but excluding the floor area of any
buildings within the Shopping Center which are separately assessed for tax
purposes and billed to an entity other than Landlord or paid directly by
an entity other than Landlord, even though billed to
Landlord.
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During
the term of this Lease, or any renewals thereof, Tenant shall pay to Landlord,
monthly in advance, an amount equal to one-twelfth (l/12th) of Tenant's
proportionate share of real estate taxes and assessments for the current tax
year, as reasonably estimated by Landlord. If Tenant's proportionate share of
real estate taxes and assessments with respect to any tax year is less than the
total amount theretofore paid by Tenant for such period, the excess shall be
credited against the payments next becoming due. If Tenant's proportionate share
of real estate taxes and assessments for any tax year exceeds the total amount
theretofore paid by Tenant for such period, Tenant shall, upon receipt of
invoices from Landlord, pay the difference between the actual amount paid by
Tenant and Tenant's proportionate share of real estate taxes and
assessments.
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2. Municipal, County, State or Federal Taxes. Tenant shall pay, before
delinquent, all municipal, county and state or
federal taxes assessed against any
Leasehold interest of Tenant or any fixtures, furnishings, equipment,
stock-in-trade or other personal property of any kind
owned, installed or used in or on the
Premises.
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3.
Should any governmental taxing authority levy, assess, or impose any tax,
excise or assessment (other than income, inheritance, gift or franchise
tax) upon or against the rentals payable by Tenant to Landlord, by
way of substitution for any existing tax on land and buildings,
Tenant shall be responsible for and shall pay any such tax, excise or
assessment, or shall reimburse Landlord for the amount hereof, as the case
may be.
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G. COMMON
AREAS
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1. Common
Areas. Landlord grants to Tenant and Tenant's customers and invitees the
right to use, in common with all others to whom Landlord has or may
hereafter grant rights to use same, the Common Areas located within the
Shopping Center. The term "Common Areas", as used in this Lease, shad mean
the parking areas, roadways, pedestrian sidewalks, loading docks, delivery
areas, landscaped areas, service courts, open and enclosed courts and
malls, fire corridors, meeting areas and public restrooms, and all other
areas or improvements which may be provided by Landlord for the common use
of the tenants of the Shopping Center. Landlord hereby reserves the
following rights with respect to the Common
Areas:
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(a) To
establish reasonable rules and regulations for the use
thereof;
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(b) To
use or permit the use by others to whom Landlord may have granted such
rights for promotional
activities!;
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(c) To
close all or any portion thereof as may deemed necessary by Landlord's
counsel to prevent a dedication thereof or the accrual of any rights to
any person or
the public therein;
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(d) To change the layout of such Common Areas, including the right to
reasonably add to or subtract from
their shape and size, whether
by the addition of building improvements or otherwise, and
may make installations^ and/or construct or erect
buildings, structures, booths therein or
thereon and move or remove the same and shall have the right to retain
revenue, ''
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. from income producing events whether
or not conducted for promotional
purposes or by or through the Merchant's Association, if any;
and
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(e) Landlord
shall operate, manage, equip, light, repair and maintain said Common
Areas for their intended purposes in an efficient and economical manner
and may from time to time change the size, location, elevation, nature
and/or use of any Common
Areas.
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2.
Common Area Charge, Tenant shall pay to Landlord as a "Common Area Charge"
a proportionate share of all costs and expenses of every kind and nature
paid or incurred by Landlord in operating, maintaining, and repairing the
Common Areas. Such costs and expenses shall include but not be limited to
cleaning, lighting, repairing, maintaining, and replacing all common area
improvements (provided, however, that any replacement of a common
area improvement which is deemed a capital improvement by generally
accepted accounting principles shall be amortized over its useful life);
including without limitation, paving, roadways, sprinkler equipment
(including standby charges), driveways, sidewalks, curbs, culverts and
drainage facilities, barriers, retaining walls, fences, directional and
Shopping Center signage (other than signs to be maintained by individual
tenants), sewer and water supply lines and related facilities; snow
removal, parking lot striping, painting, and painting of exterior
walls, landscaping, providing security, providing public liability,
property damage, fire and extended coverage and such other insurance as
Landlord deems appropriate; including, but not limited to, the cost of
Landlord's insurance provided for in Section L; total compensation and
benefits (including premiums for Workmen's Compensation and other
insurance) paid to or on behalf of employees; personal property taxes,
supplies, fire protection and fire hydrant charges, water and sewer
charges, utility charges, licenses and permit fees, reasonable
depreciation of equipment used in operating and maintaining the Common
Areas and rent paid for leasing such equipment, and administrative costs
equal to fifteen (15%) per cent of the total cost of all the foregoing
items (excluding insurance premiums paid by Landlord pursuant to Section L
hereof). Tenant's Common Area Charge shall be determined by multiplying
the total cost incurred by Landlord by the ratio of the square feet within
the Premises to the gross leasable area within all of the existing
buildings in the Shopping Center as of the date of the
billing.
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Tenant's
Common Area Charge shall be paid in monthly installments on the first day of
each month in an amount to be estimated by Landlord. Within ninety (90) days
following the end of the period used by Landlord in estimating Landlord's cost,
Landlord shall furnish to Tenant a detailed statement of the actual amount of
Tenant's proportionate share of such Common Area Charge for such period. Within
fifteen (15) days thereafter, Tenant shall pay to Landlord or Landlord shall
remit to Tenant, as the case may be, the difference between the estimated
amounts paid by Tenant and the actual amount of Tenant's Common Area Charge for
such period as shown by such statement, subject to Section A. 12 and A.
13.
The
Common Area Charges described in this Section G shall be subject to
audit
by a
certified public accounting firm of Tenant's choice, at the address
Landlord
set forth
in this Lease, at Tenant's expense during regular business hours
for
one (1)
year following the end of the period used by Landlord in
estimating
. Landlord's
cost. Landlord shall use its best efforts to operate the
center
economically
and efficiently.
H. UTILITIES
AND RUBBISH DISPOSAL
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1.
Gas and Electric Charges. Commencing with the date on which Landlord
delivers the Premises to Tenant, Tenant shall pay for gas, if the same is
available to the Premises, electric current and all other utilities
required for the proper operation of Tenant's business, together with
all taxes levied or other charges on such utilities, and governmental
charges based on utility consumption. In the event Tenant's utilities
shall be separately metered from all other tenants of the Shopping
Center, Tenant shall, at its sole cost arid expense, pay for the cost of
installation of such meters and any and all related costs and expenses,
unless such costs and expenses are the express responsibility of Landlord
pursuant to Exhibit "C" of this
Lease.
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2. Water
and Sewer Charges. Commencing on the date on which Landlord delivers the
Premises to Tenant, Tenant shall pay all water rents, all charges
resulting from any sprinkler system and sewer charges charged against the
Premises.
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If any
such utilities are not separately metered or assessed or are only partly
separately metered or assessed and are used in common with other tenants of the
Shopping Center, Tenant shall pay to Landlord an apportionment of such charges
for utilities used in common, computed by multiplying such charges
by
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ratio of square feet within the Premises to the square feet of
all tenants
! using
such common facilities, in addition to Tenant's payments of the
separately
j metered
charges.
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Rubbish Disposal. In the event Landlord shall acquire and install facilities
in
! the
Shopping Center for the consolidation of accumulated rubbish, Tenant
shall
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permitted to use said facilities at the rates reasonably determined
by
Landlord,
provided that the rates charged by Landlord are competitive
with
! other
rubbish removal companies in the area.
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f In no event shall Landlord be liable for the quality, quantity, failure, or
I interruption of the foregoing utility and rubbish disposal services to the
' Premises
unless caused by Landlord's negligence or willful acts.
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j I. USE
OF PREMISES BY TENANT
1. Tenant's
Use of Premises will be for the permitted use set forth
in Section A.3
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2. Trade
Name. Tenant agrees to conduct its business in the Premises under the name
of DOLLAR TREE.
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3. Operation
of Business. Tenant agrees to open its store for business, fully fixtured,
stocked and staffed and to continuously operate in 100% of the Premises
during the hours set by Landlord for all Tenants of the Shopping
Center, on all business days the Shopping Center is open for business,
except where Tenant is prevented from doing so by strikes, casualty or
other causes beyond Tenant's control. In no event, however, will Tenant be
open for business after 10:00 PM or before 9:00 AM on any day without
Landlord's prior written consent. Tenant shall be permitted to close the
Premises for a period not to exceed three (3) days per year to conduct
inventory or due to the death of a store
manager.
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J. TENANT'S
COVENANTS WITH RESPECT TO OCCUPANCY
Tenant
Agrees:.
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1. To
occupy the Premises in a safe and careful manner in compliance with all
laws, ordinances, rules, regulations and orders of any governmental
bodies having jurisdiction over the Premises, and without committing or
permitting waste;
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2. To
neither do nor suffer anything to be done or kept in or about the
Premises
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which
contravenes Landlord's insurance policies or increases the
premiums
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therefor;
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3. To
keep its show or display windows, canopy and electric signs lighted until
at least 9:30 PM local time of each day or until a time which is thirty
(30) minutes after the close of each business day, whichever is
later;
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4. To
permit no reproduction of sound which is audible outside the Premises nor
permit odors to be dispelled from the
Premises;
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5. To
place no sign on the exterior of the Premises or on the interior surface
of any windows of the Premises (except for Tenant's standard window
decal treatment which in no event shall occupy more than fifteen percent
(15%) of said window) unless it meets the standards as set forth in Exhibit
D attached hereto and made a part hereof and without also obtaining
Landlord's prior written consent, and to maintain in good repair and
promptly remove and repair any damage caused by such permitted sign;;.
Tenant agrees not to display any pennants, search lights, window
signs, balloons, or similar temporary advertising media. Tenant may
display banners inside the premises within two (2) feet from the front of
the store as long as they are professionally prepared. Tenant agrees to
maintain its signs in good states of repair and save
Landlord-harmless from any loss, cost, or damage as a result of their
condition and shall-'
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repair
any damage which may have been caused by the erection, existence, maintenance or
removal of such signs, Upon vacating the storeroom. Tenant agrees to remove
all signs and repair all damages caused by such removal.
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6. To
place no merchandise, sign or other thing of any kind in the vestibule or
entry outside of the Premises or on the sidewalks or other Common Areas
adjacent thereto or elsewhere on the exterior of the
Premises;
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7. To
park Tenant's vehicles and to require all employees to park only in such
places as may be designated from time to time by Landlord for the use of
Tenant and its employees, and specifically not to permit parking by any of
them in any service court area (Landlord reserves the right to have towed,
at the owner's cost and expense, any automobile parked in violation of
this clause);
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8. To
keep any refuse in proper containers in the interior of the Premises until
the same is removed from the Shopping Center and to permit no refuse to
accumulate around the exterior of the
Premises;
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9. To
neither load nor unload or permit the loading or unloading of merchandise,
equipment or other property from any doors of the Premises that open onto
the front sidewalk areas, nor from any other doors except from the rear of
the Premises and to use its best efforts to prevent the parking
or standing of vehicles and equipment upon Shopping Center land except
when actually engaged in loading or
unloading;
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10.
To conduct no auction, fire or going-out-of-business sale without the
prior written consent of
Landlord;
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11. To
permit Landlord free access to the Premises at all reasonable times after
notice to Tenant (except
in the event of an emergency when no prior notice shall be
required) for the purpose of examining the same or making alterations or
repairs to the Premises that Landlord may deem necessary for the safety or
preservation thereof;
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12. To
adequately heat and cool the Premises;
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13. To
permit no Hen, notice of intention to file lien or other charges (whether
arising out of work of any contractor, mechanic, laborer or material man
or any mortgage, condition sale, security agreement or chattel
mortgage otherwise) which might be or become a lien or encumbrance or
charge upon the Premises or any part thereof or the income therefrom, and
to suffer no other matter or thing whereby the estate, right and interest
of Landlord in the Premises or any part thereof might be
impaired;
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14. To
solicit no business in the Common Areas, nor distribute handbills or other
advertising matter to customers, nor place the same in or on automobiles
in the Common Areas;
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15. To
comply with all reasonable rules and regulations which Landlord may from
time to time establish and uniformly enforce for all tenants of the
Shopping Center for the use and care of the Premises, the Common Areas,
and other facilities and buildings on the Shopping
Center;
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16. To
cooperate fully with Landlord and other tenants of the Shopping
Center in promoting the use of trade names and slogans as may be
adopted for the Shopping Center and in all promotional and advertising
campaigns;
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17. To
shut off all exhaust fans, if any servicing the Premises, at all times
when Premises are closed; if Tenant's Premises front on an enclosed mall
Tenant shall maintain positive air pressure so as to prevent the drawing
of heated or cooled air from the enclosed mall and shall keep the Premises
heated or air conditioned, as the case may be, to at least the same
minimum temperature (in the case of heat) or at the same maximum
temperature (in the case of air conditioning) as Landlord shall attempt to
maintain in such mall;
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18. To
handle and dispose of all rubbish, garbage, and waste in accordance with
regulations established by Landlord and not permit the accumulation
(unless in sealed metal containers) or burning of any trash, rubbish,
refuse, garbage or waste materials in, on, or about any part of the
Shopping Center;
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19. To
prohibit the Premises to be used in any way which will injure the
reputation of the Shopping Center or which may be a nuisance, annoyance,
inconvenience or damage to the tenants or the Shopping Center or to
the neighborhood including, without limiting the generality of the
foregoing, noise by the playing of any musical instrument or radio or
television, or the use of a microphoneT—
loud speaker, electrical equipment, or utilizing flashing lights or
search lights
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7 x'\
or* any other equipment which in
the judgment of Landlord might cause disturbance, impairment or interference
with the use or enjoyment by any other tenant in the Shopping
Center;
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20. To
prohibit the operation in the Premises or any part of the Shopping Center
of any coin or token-operated vending machines or similar devices
(including without limitation, pay telephones, pay lockers, pay toilets,
scales, amusement devices and machines for the sale of merchandise and/or
commodities);
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21. To
permit Landlord or its agents, on or after ninety (90) days next preceding
the expiration of the term of this Lease, to have the right to show the
Premises to potential tenants, and to place notices offering the Premises
"To Lease" or "For Sale" on the front of the Premises or any part thereof;
and
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22. That
it shall not make any penetrations through the roof of the Premises
without the prior written consent of
Landlord;
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23. To
defend, protect, indemnify and hold Landlord harmless from and against any
and all claims, causes of action, liabilities, damages, costs and
expenses, including, without limitation, attorney fees, arising from or in
any way connected with Hazardous Waste (as hereinafter defined)
within the Shopping Center which are the result of Tenant's use, occupancy
or operation of the Premises. As used herein the term "Hazardous Waste"
shall be defined as any hazardous substance, containment, pollutant or
hazardous release (as such terms are defined in any federal, state or
local law, rule, regulation or ordinance,
including without, limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended) and other
said wastes.
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In the
event Tenant shall cause or permit the presence of Hazardous Waste in, on or
under the Premises or any other portion of the Shopping Center, Tenant shall
promptly, at Tenant's sole cost and expense, take any and all action necessary
(as required by appropriate government authority or otherwise) to return the
areas affected thereby to the condition existing prior to the presence of any
such Hazardous Waste thereon, subject to Landlord's prior written consent. The
foregoing covenants shall survive the termination of this
Lease.
K. REPAIRS
AND ALTERATIONS
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1. Repairs
by Landlord. Landlord shall keep the foundations, roof, and structural
portions of the outer walls of the Premises in good repair, except for
repairs required thereto by reason of the acts of Tenant, Tenant's
employees, agents, licensees, or contractors. Tenant shall give Landlord
written notice of the necessity for repairs coming to the attention
of Tenant following which Landlord shall have a reasonable time to
undertake and complete such repairs. Notice from Tenant of the need for
Landlord to perform a repair to the Premises shall not be a condition to
Landlord commencing such repair if Landlord has actual knowledge of the
need for repairs from any other independent source. The provisions of this
Subsection K.I shall not apply in the case of damage or destruction by
fire or other casualty or by Eminent Domain, in which events the
obligations of Landlord shall be controlled by either Section M or Section
O hereof.
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It is
expressly understood that Landlord shall not be responsible for any portions of
the Premises constructed by Tenant.
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2. Repairs
by Tenant. Except as
provided in Subsection
K.I, Tenant shall keep
the Premises and every
part thereof
and any fixtures, facilities or equipment
contained therein, in good
condition
and repair, including, but
not limited to, exterior and interior portions of all
doors, door checks and operations, windows,
plate glass, and showcases surrounding the Premises, the heating, air
conditioning, electrical, plumbing and sewer systems, the
exterior doors, window
frames, and all portions of the store front area, and shall make any
replacements thereof of all broken and/or cracked plate and window glass
which may become necessary during the term of this Lease, and
any renewal thereof, excepting any repairs to items of Landlord's original
construction made necessary by reason of damage due to fire or other
casualty covered by standard fire and extended coverage
insurance. In connection with Tenant's obligation
to maintain the HVAC system servicing the Premises, Tenant
shall, during the term of this
Lease, and any renewals thereof, at its sole cost and expense, maintain a
service contract for the routine performance of standard HVAC system
maintenance, including but not
limited to, periodic replacement of
filters, oiling of mechanical components and inspection for
wear and tear. Within fifteen (15) days of
Landlord's written request, Tenant shall
provide Landlord with a copy
of the foregoing HVAC service contract. If Tenant refuses or neglects to"'
commence or complete repairs promptly
and adequately, Landlord may
make or'
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8 / X
complete
said repairs and Tenant shall pay the cost thereof to Landlord upon demand,
together with the sum of fifteen percent (15%) of said costs for
overhead.
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3. Alterations
or Improvements by Tenant. Tenant shall not, without Landlord's prior
written consent, make, nor permit to be made, any alterations, additions
or improvements to the Premises. Any alterations which may be permitted by
Landlord shall be based upon plans and specifications submitted by Tenant
and approved by Landlord and upon the condition that Tenant shall promptly
pay all costs, expenses, and charges thereof, shall make such alterations
and improvements in accordance with applicable laws and building
codes and ordinances and in a good workmanlike manner, and shall fully and
completely indemnify Landlord, which indemnification shall be in a form
acceptable to Landlord against any mechanic's lien or other liens or
claims in connection with the making of such alterations,
additions, or improvements. Tenant shall promptly repair any damages
to the Premises, or to the buildings of which the Premises are a part,
caused by any alterations, additions or improvements to the Premises by
Tenant. Landlord's approval of Tenant's plans shall not be unreasonably
withheld.
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4. Removal
of Improvements. All Items of Landlord's construction, all heating and air
conditioning equipment, and all alterations, additions and other
improvements by Tenant shall become the property of Landlord at the
termination of the Lease and shall not be removed from
the Premises. All trade fixtures, furniture, furnishings, and signs
installed in the Premises by Tenant and paid for by Tenant shall remain
the property of Tenant and may be removed upon the expiration of the
term of this Least:; provided (a) that any of such items as are affixed to
the Premises and require severance may be removed only if Tenant repairs
any damage caused by such removal and (b) that Tenant shall have fully
performed all of the covenants and agreements to be performed by Tenant
under the provisions of this Lease. If Tenant fails to remove
such items from the Premises prior to the expiration or earlier
termination of this Lease, all such trade fixtures,
furniture, furnishings, and signs shall become the property of
Landlord unless Landlord elects to require their removal, in which
case Tenant shall promptly remove same and restore the Premises to its
prior condition. In the event Tenant fails to remove all such
trade fixtures, furniture, furnishings, and signs within ten (10) days
after Landlord elects to require their removal, Landlord shall have the
right to remove same and sell such trade fixtures, furniture, furnishings,
and signs to pay for the cost of
removal.
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Tenant further
agrees that all personal property of
every kind or description which may at any time
be in the Premises shall be at the Tenant's sole risk. Landlord shall not be
responsible or liable to Tenant for any loss or damage that
may be occasioned by the acts or omissions of persons occupying any space
adjacent to or adjoining Tenant's Premises. Landlord
shall not be responsible or liable to Tenant for any loss or damage resulting to
Tenant or its property from roof
leaks, water, gas, steam, fire, or the
bursting, stoppage, or leakage of
sewer pipes, or from the heating or plumbing fixtures, or
from electric wires, or from gas odors unless caused by its own negligent or
willful acts.
Nothing
contained in this Lease shall be construed to release Landlord from
liability for damages proximately caused by its own negligent or willful
acts.
INDEMNITY
AND INSURANCE
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1. Indemnification
by Tenant. Tenant will indemnify and hold Landlord harmless from and
against all loss, cost, expense, and liability whatsoever (including
Landlord's cost of defending against the foregoing, such cost to include
attorney's fees) resulting or occurring by reason of Tenant's
construction, use or occupancy of the
Premises.
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2. Public
Liability Insurance, Tenant agrees to carry public liability insurance
covering the Premises and Tenant's use thereof, together with contractual
liability endorsements covering Tenant's obligations set forth in
Subsection L(l), with a minimum limit of One Million and
00/100 Dollars ($1,000,000.00) on account of bodily injuries to or death
or property damage for each occurrence and a minimum limit of Two
Million Dollars and 00/100 ($2,000,000.00) general aggregate. Such
insurance shall also provide that the general aggregate limits apply
separately to each insured location, if applicable. Tenant shall
deposit said policy or policies (or certificates thereof) with Landlord
prior to the date of any use or occupancy of the Premises by Tenant; said
policy or policies shall name Landlord, Tenant and such other parties as
Landlord may from time to time notify Tenant in writing to be named as
additional insureds under such insurance policy and shall bear
endorsements to the effect that the insurer-__ agrees to notify Landlord
and such other parties designated by Landlord
as
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9 / ^
additional
insureds not less than thirty (30) days in advance of any modification or
cancellation thereof. Landlord agrees to maintain at least the same public
liability coverage with respect to the Shopping Center.
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3. Landlord's
Insurance. Landlord agrees to carry policies insuring the improvements on
the Shopping Center against fire and such other perils as are normally
covered by extended coverage endorsements in the county where the Premises
are located, in an amount equal to at least eighty percent (80%) of the
insurable value of such improvements, together with insurance against such
other risks (including loss of rent) and in such amounts as
Landlord deems appropriate. Tenant agrees that the total cost of the
foregoing insurance shall be included in the Common Area charge as
provided for in Subsection G(2) of this Lease and that Tenant shall pay
its proportionate share of the foregoing insurance per said
Subsection; provided, however, that Tenant shall have no rights in said
policy or policies maintained by Landlord and shall not, by reason of
such reimbursement, be entitled to be a named additional insured
thereunder, In the event any of Landlord's policies insures Premises or
risks other than the Shopping Center or the rents therefrom, the statement
of the insurer shall be conclusive as to the portion of the
total premium attributable to the Shopping
Center.
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4. Tenant
agrees to carry insurance against fire and such other risks as are, from
time to time, included in standard extended coverage endorsements,
insuring Tenant's stock-in-trade, trade fixtures, furniture, furnishings,
special equipment, floor and wall coverings, and all other items of
personal property to Tenant located on or within the Premises, such
coverage to be in an amount equal to at least eighty percent (80%)
of the replacement
cost thereof.
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5. Tenant
may self-insure its Leasehold improvements, inventory, fixtures,
equipment and plate glass in the Premises during the term of this Lease
and any renewals or extensions thereof so long as Tenant shall have a net
worth of at least Three Million and 00/100 Dollars ($3,000,000.00).
Prior to the Commencement Date of the Lease, Tenant shall furnish Landlord
with a certificate evidencing such coverage or net worth, as the case may
be,
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6. Mutual
Waiver of Subrogation. All property insurance policies carried by either
party covering the Premises, including but not limited to contents, fire,
and casualty insurance, shall to the extent permitted by law expressly
waive any right on the part of the insurer against the other party. The
parties hereto agree that their policies will include such waiver clause
or endorsement so long as the same shall be obtainable without extra cost,
or if extra shall be charged therefor, so long as the other party pays
such extra cost. If cost shall be chargeable therefor, each party shall
advise the other of the amount of extra cost, and the other party, at its
election, may pay the same, but shall not be obligated to do so. The
failure of any insurance policy to include such waiver clause or
endorsement shall not affect the validity of
this Lease.
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M. DAMAGE
AND DESTRUCTION
In the
event the Premises are damaged by a peril covered by standard policies of fire and extended coverage
insurance to an extent which is fess than fifty percent (50%) of the cost of
replacement of the Premises, the damage shall, except as hereinafter provided,
promptly be repaired by Landlord, at Landlord's expense but, that in no event
shall Landlord be required to repair or replace Tenant's stock-in-trade, trade
fixtures, furniture, furnishings, equipment or personal property. In the
event (a) the Premises arc damaged to the extent of fifty percent (50%) or more
of the cost of replacement of the Premises, (b) the buildings on the Shopping
Center are damaged to the extent of fifty percent (50%) or more of the cost
of replacement, notwithstanding the extent of damage to the Premises, or (c) any
damage to the Premises occurs during the last one (1) year of the
term of this Lease, Landlord may elect either to repair or rebuild the Premises
and the buildings that are a part of the Shopping Center, as the case may be, or
to terminate this Lease upon giving notice of such election in writing to Tenant
within ninety (90) days after the event causing the damage. If the casualty,
repairing, or rebuilding shall render the Premises untenantable, in whole or in
part, a proportionate abatement of the Minimum Rent shall be allowed
until the date Landlord completes the repairs or rebuilding. If Landlord is
required or elects to repair the Premises, Tenant shall repair or replace its
stock-in-trade, trade fixtures, furniture, furnishings, equipment, and personal
property in a manner and to at least a condition equal to that prior to its
damage or destruction and the proceeds of all insurance carried by Tenant shall
be held in trust by Tenant for the purpose of such repair and
replacement.
N. ASSIGNING
AND SUBLETTING
Page
10
Tenant
shall have the right to assign the lease or to sublet the whole or any part of
the Demised Premises at any time provided:
1. Tenant
will remain liable hereunder;
2. Tenant's
assignee or sub-tenant will assume all obligations under the
Lease;
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3. The
Demised Premises will continue to be used only for the retail sale of
items enumerated in the Use clause;
and
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4. Tenant's
successor shall have retail experience comparable to that of
Tenant.
Tenant is a publicly owned corporation, and any change in
ownership of its shares shall not constitute an Assignment
for the purposes of this Lease.
O. EMINENT
DOMAIN
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1. In
the event the Shopping Center or any part thereof shall be taken or
condemned either permanently or temporarily for any public or quasi-public
use or purpose by any authority in appropriate proceedings or by any right
of eminent domain, the entire compensation award thereof, including, but
not limited to, all damages as compensation, for diminution in value of
the Leasehold, reversion and fee, shall belong to Landlord, without any
deduction therefrom for any present or future estate of Tenant, and Tenant
hereby assigns to Landlord all its right, title, and
interest to any such award. However, Tenant shall have the right to
recover from the condemning authority, but not from Landlord, such
compensation as may be separately awarded to Tenant on account of the
values of Landlord improvements made by Tenant and for moving and
relocating expenses.
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2. In
the event of taking under the power of eminent domain of (a) more than
twenty-five percent (25%) of the Premises or (b) a sufficient portion of
the Shopping Center so that after such taking less than fifty percent
(50%) of the leasable floor area within all buildings located on the
Shopping Center (as constituted prior to such taking) are occupied by
tenants, either Landlord or Tenant shall have the right to terminate this
Lease by notice in
writing given within ninety (90) days after the condemning
authority takes possession, in which event all rents and other charges
shall be prorated as of the date of such
termination.
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3. In
the event of a taking of any portion of the Premises not resulting in a
termination of this Lease, Landlord shall use so much of the proceeds
of Landlord's award for the Premises as is required therefore to
restore the Premises to a complete architectural unit and this Lease shall
continue in effect with respect to the balance of the Premises, with a
reduction of Minimum Rent in proportion to that portion of the Premises
taken.
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P. DEFAULT
BY TENANT
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1. If
Tenant defaults in the payment of Minimum Rent, Percentage Rent, or other
charges, or in the performance of any other of Tenant's obligations
hereunder, and Tenant fails to remedy such default within ten (10) days
after written notice from Landlord (unless default relates to matters
other than the payment of money and cannot be remedied within ten (10)
days; and Tenant commences to remedy such default within said ten (10) day
period after written notice from Landlord and thereafter diligently
pursues correction thereof, in which event the time to remedy such default
shall be extended to the time reasonably required therefore), or if a
receiver of any property of Tenant on the Premises is appointed, or
Tenant's interest in the Premises is levied upon by legal process, or
Tenant be adjudged bankrupt and Tenant fails within thirty (30) days to
cause the vacation of such appointment, levy or adjudication, or if Tenant
files a voluntary petition in bankruptcy, disposes of all or substantially
all of its assets in bulk, or makes an assignment for the benefit of its
creditors, then and in any such instance, without further notice to
Tenant, Landlord may enter upon the Premises and terminate this Lease. In
the event of such termination, the obligations of Landlord hereunder shall
cease, without prejudice, however, to the right of Landlord to
recover from Tenant any sums due Landlord for Minimum Rent and other
charges payable by Tenant hereunder, including reasonable attorney's fees
to the date of such entry, and also liquidated damages equal to any
deficiency between the then rental value of the Premises for the unexpired
portion of the term and the Minimum Rent provided for that portion of the
term, discounted at six percent (6%) per annum to present net worth. In
addition, Landlord may enter upon the Premises without terminating this
Lease and may relent the Premises in its own name for the account of
Tenant for the remainder of the term at the highest rent then obtainable
and immediately recover from Tenant any deficiency for the balance of the
term between the
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I Page
11
amount
for which the Premises were relet, less expense of reletting, and the rent
provided hereunder. If Landlord submeters electric current, gas, or water to the
Premises, then if at any time Tenant fails to pay rent or other charges for same
within ten (10) days after they are due, Landlord may, at its option, in
addition to the foregoing remedies and without further notice to Tenant, cease
furnishing such electric current, gas or water. No failure of Landlord to
enforce its right or remedies upon default of Tenant shall prejudice or affect
the rights of Landlord upon any subsequent or similar
default.
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2. If
Tenant at any time shall fail to pay any taxes, assessments, or liens, to
make any payment or perform any act required by this Lease to be made or
performed by it, Landlord, without waiving or releasing Tenant from
any obligation or default under this Lease, may (but shall be under no
obligation to) at any time thereafter make such payments or perform such
act for the account and at the expense of Tenant. All sums so paid by
Landlord and all costs and expenses so incurred including reasonable
attorney's fees, shall accrue interest at the rate of two (2%) above the
prime lending rate of NationsBank N.A. from the date of payment or
incurring thereof by Landlord and shall constitute additional rent payable
by Tenant under this Lease and shall be paid by Tenant to Landlord upon
demand. All other sums payable by Tenant to Landlord under this Lease, if
not paid when due,
shall accrue interest at the rate of two percent (2%) above the prime
lending rate of NationsBank N.A. from their due date until paid, said
interest to be considered additional rent under this Lease and shall be paid to Landlord by
Tenant upon demand. If Tenant shall issue a check to Landlord which is
dishonored by Tenant's depository bank and returned unpaid for any reason,
including without limitation, due to insufficient funds in Tenant's
checking account, Tenant shall pay to Landlord in addition to any other
rights or remedies available to Landlord at law, the sum of Seventy five
and 00/100 Dollars ($75.00) for Landlord's administrative expense in
connection therewith.
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3. In
the event either Landlord or Tenant shall be required to commence
legal proceeding to enforce any of the terms of this Lease, the prevailing
party in such proceeding shall be entitled to reimbursement from the
non-prevailing party of all reasonable attorney fees and court costs
incurred in connection
therewith.
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All
rights and remedies of Landlord herein enumerated shall be cumulative, and none
shall exclude any other remedies allowed under law or in
equity.
Q. SECURITY
DEPOSIT. None
R. NOTICES
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1. Any
notice or consent required to be given by or on behalf of either party to
the other shall be deemed given when mailed by registered or
certified mail, postage prepaid, return receipt requested, or by any other
method providing for reasonable verification of receipt thereof, addressed
as follows:
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Landlord: - , DMK
Associates, L.P.
DMK
Associates PC Xxx 0000
Xxxxxxx, XX 00000-0000
Tenant; Dollar
Tree Stores, Inc.
Real
Estate Department 0000 Xxxxxxxx Xxxxxx Xxxxxxx,
XX 00000
Notwithstanding
any provision to the contrary contained herein, Landlord shall not mail or
deliver any notice or consent required to be given by or on behalf of Landlord
to the Premises.
S. MORTGAGE
SUBORDINATION
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1. Landlord
is the fee simple
owner of the Shopping Center. This Lease is and shall at all times,
unless Landlord shall otherwise elect, be subject and subordinate to
all covenants, restrictions, easements and encumbrances now or hereafter
affecting the fee title of the Shopping Center and to all mortgages, deeds
of trust, financing or refinancing in any amounts which may now or
hereafter be placed against or affect any or all of the land or any or all
of the building and improvements now or at any time hereafter constituting
part of or adjoining the Shopping Center. The aforesaid provision shall be
self-operative and no further instrument or document shall be required to
effectuate said subordination unless otherwise requested. Tenant also
agrees that'-an-y™ mortgagee or trustee may elect to have this Lease prior
to the lien of its
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mortgage
or deed of trust, and upon notification by such mortgagee or trustee to Tenant
to that effect, this Lease shall be deemed prior in lien to the said mortgage or
deed of trust, whether this Lease is dated prior to or subsequent to the date of
said mortgage or deed of trust. Tenant agrees that if Landlord's mortgagee or
trustee requests confirmation of such subordination, within ten (10) days
after receipt of written request therefor. Tenant shall execute and deliver
whatever instruments (including but not limited to a Memorandum of
Lease and/or a Non-Disturbance and Attornment Agreement in recordable form)
which may be required for such purposes and to carry out the intent of this
section.
T. ESTOPPEL
CERTIFICATES
At any
time and from time to time, Tenant agrees, upon request in writing from
Landlord, to execute and deliver to Landlord, for the benefit of such persons as
Landlord names in such request, a statement in writing and in form and substance
satisfactory to Landlord certifying to such of the following information as
Landlord shall request: (a) that this Lease constitutes the entire agreement
between Landlord and Tenant and is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); (b) the dates to which the
Minimum Rent and other charges hereunder have been paid; (c) that the Premises
have been completed on or before the date of such letter and that all conditions
precedent to the Lease taking effect have been carried out; (d) that Tenant
has accepted possession, that the Lease term has commenced, that Tenant is
occupying the Premises, that Tenant knows of no default under the Lease by
Landlord and that there are no defaults or offsets which Tenant has against
enforcement of this Lease by Landlord; (e) the actual commencement date of the
Lease and the expiration date of the Lease; and (f) that Tenant's store is open
for business, provided such facts are true and ascertainable.
U. MERCHANT'S
ASSOCIATION. None. V. QUIET
ENJOYMENT
Landlord
hereby covenants and agrees that if Tenant shall perform all the covenants and
agreements herein stipulated to be performed on Tenant's part, Tenant shall at
all times during the continuance hereof have the peaceable and quiet enjoyment
and possession of the Premises without hindrance from Landlord or any
person.
W. LIABILITY
OF LANDLORD
Notwithstanding
anything to the contrary provided in this Lease, it is specifically understood
and agreed, such agreement being a primary consideration for the execution of
this Lease by Landlord, that if Landlord shall fail to perform any covenant,
term or condition of this Lease upon Landlord's part to be performed and, as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against the
right, title, and interest of Landlord in the Shopping Center, as the same may
then be encumbered, and neither Landlord, nor, if Landlord be a partnership, any
of the partners comprising such partnership shall be liable for any deficiency.
It is understood that in no event shall Tenant have any right to levy execution
against any property of Landlord other than its interest in the Shopping
Center as hereinbefore expressly provided. In the event of the sale or
other transfer of Landlord's right, title and interest in the Premises or the
Shopping Center, Landlord shall be released from all liability and obligations
hereunder so long as its transferee shall assume in writing the obligations
of Landlord herein set forth. Nothing contained herein shall reduce the recovery
under Landlord's liability insurance policies covering the Shopping
Center.
X. ENVIRONMENTAL
MATTERS: NO HAZARDOUS SUBSTANCES
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1. Landlord
warrants that upon delivery to Tenant the Premises are free of asbestos
and other hazardous materials and gases, and if found, Landlord will
remove at Landlord's expense.
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2. Tenant
shall not engage in operations at the Premises which involve the
generation, manufacture, refining, transportation, treatment, storage,
handling or disposal of "hazardous substances" or "hazardous waste", as
such terms are defined under the Environmental Cleanup Responsibility Act,
N.J.S.A. !3:.1K-6, et.seq., without the prior written consent of
Landlord, which consent shall be at Landlord's sole
discretion.
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Y. MISCELLANEOUS
PROVISIONS
Page
13
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2. Accord
and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the rental herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy provided for in this Lease or available under law
or in equity.
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2. No
waiver of any condition or legal right or remedy shall be implied by the
failure of Landlord to declare a forfeiture, or for any other reason, and
no waiver of any condition or covenant shall be valid unless it be in
writing and signed by Landlord. No waiver by Landlord with respect to one
or more tenants or occupants of the Shopping Center shall constitute a
waiver in favor of any other tenant, nor shall the waiver of a breach of
any condition be claimed or pleaded to excuse a future breach of the same
condition or covenant.
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3. Broker's
Commission. Landlord and Tenant hereby warrant to the other that there are
no claims for broker's commissions or finder's fees in connection with the
execution of this Lease, and Landlord and Tenant agree to indemnify and
save the other harmless from any liability that may arise from such
claims, including reasonable attorney's
fees.
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4. No
Partnership. Landlord does
not, in any way or for any purpose, become a
partner of Tenant in the conduct of its business, or otherwise,
or joint venturer or a member of a joint enterprise with
Tenant.
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5. Section
Headings. The section headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the
scope or intent of this Lease nor in any way affect this
Lease.
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6. Lease
Inures to the Benefit of Assignees. This Lease and all of the covenants,
provisions, and conditions herein contained shall inure to the benefit of
and be binding upon the heirs > personal representatives,
successors and assigns respectively, of the parties hereto, provided,
however, that no assignment by, from, through, or under Tenant in
violation of the provisions hereof shall vest in the assigns any
right, title, or interest
whatsoever.
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7. Entire
Agreement. This Lease and the exhibits attached hereto set forth all the
covenants, promises, agreements, conditions, and understandings between
Landlord and Tenant concerning the Premises, and there are no covenants,
promises, agreements, conditions or understandings, either oral or
written, between them other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by
them.
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8. Surrender
and Holding Over. Tenant shall deliver up and surrender to Landlord
possession of the Premises upon the expiration of the Lease term, or its
prior termination for any reason, in as good condition and repair as the
same shall be at the commencement of said term (damage by fire and other
perils covered by standard fire and extended coverage insurance and
ordinary wear and decay only excepted). No agreement to accept a surrender
of the Premises prior to the natural expiration of the term of this Lease
shall be valid and binding against Landlord unless such agreement shall be
in writing and signed by Landlord. Should Tenant remain in possession of
the Premises after any termination of this Lease, no tenancy or
interest in the Premises shall result therefrom, but such holding over
shall be an unlawful detainer and all such parties shall be subject to
immediate eviction and removal, and after a two (2) month "good faith
grace period" necessary to complete negotiations for renewal, Tenant shall
upon demand pay to Landlord, as liquidated damages, an amount equal
to two hundred percent (200%) of the Minimum Rent payable during the
calendar month immediately preceding the expiration or earlier termination
of this Lease for any period during which Tenant shall hold the
Premises after the stipulated term of this Lease shall have expired or may
have terminated.
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9. Additional
Rent. Any amounts to be paid by Tenant to Landlord pursuant to the
provisions of this Lease, whether such payments are to be periodic
and recurring or not, shall be deemed to be "additional rent" and
otherwise subject to all provisions of this Lease and of law as to the
default in the payment of
rent.
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10. Delivery
of Documents. In the event Tenant fails to
execute, acknowledge, and deliver any documents or
agreements required to be provided to Landlord under.. . Section
J, Section R, Section S or
Section T of this Lease
within fifteen (15)
days after Tenant's receipt of Landlord's written request therefor, the
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1 Page
14 /
documents
or agreements requested shall be deemed approved, acknowledged and accepted by
Tenant, provided that such documents or agreements in no way alter, diminish or
affect the terms of this Lease.
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11. Severability.
In the event that any provision or section of this Lease is rendered
invalid by the decision of any court or by the enactment of any law,
ordinance or regulation, such provision of this Lease shall be deemed to
have never been included therein, and the balance of this Lease shall
continue in effect in accordance with its
terms.
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12. Option
to Renew. Provided Tenant is not in default under any of the terms and
provisions herein contained, Landlord hereby grants to Tenant the option
to renew this Lease for the periods stipulated in Section A.7. The First
Renewal Term and each succeeding Renewal Term shall be based upon all the
terms and conditions contained in this Lease except for payment of
Minimum Rent which shall be increased per Section A. 10. The foregoing
options to renew shall be exercised by written notice to Landlord given
not less than six (6) months prior to the expiration of the original Term
of the Lease, or the First Renewal Term,, or each succeeding Renewal Term
as the case may be.
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13. Counterparts.
This Lease may be executed in multiple counterparts, each of which shall
constitute an original and all of which shall constitute a
document.
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14. Force
Majeure. The period of time during which Landlord or Tenant is prevented
or delayed in the performance of the making of any improvements or repairs
or fulfilling any obligation required under this Lease due to delays
caused by fire, catastrophe, strikes or labor trouble, civil commotion,
acts of God, governmental prohibitions or regulations, inability or
difficulty to obtain materials or other causes beyond either party's
control, shall be added to that party's time for performance hereof, and
Landlord or Tenant shall have no liability by reason thereof. This clause
shall not apply to Tenant's obligations to pay
rent.
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15. Recording.
This Lease shall not be recorded. However, upon the request of either
Landlord or Tenant, the other party agrees to execute a memorandum of
Lease setting forth such terms and provisions as may be acceptable to both
Landlord and Tenant which may be recorded at the cost of the party
desiring recording.
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16. Early
Termination. In the event Tenant's sales during the second full lease year
do not exceed Six hundred thousand dollars and no/100 ($600,000.00),
Tenant shall the right to vacate the premises and terminate the lease
provided the Tenant has given Landlord sixty (60) days written
notice of its intention to do so at the end of the second lease year along
with a copy of Tenant's certified sales. If Tenant fails to exercise
its termination right in the specified time period, then the
right will expire and the Lease will remain in full
force.
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Page
15
IN
WITNESS THEREOF, Landlord and Tenant have caused this Lease to
be signed as of the date and year first above written.
LANDLORD: DMK
Associates, L.P.
a(n)
Virginia Limited Partnership
By:___ /s/ Macon
X. Xxxxx, Xx._
Typed
Name Macon X. Xxxxx,
Xx.
Title General
Partner ____
ATTEST:
/Xxxxxxxxx
C, Xxxxx / Assistant Secretary
(Corporate
Seal)
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TENANT:
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DOLLAR
TREE
STORES, INC.
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Virginia
corporation
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/s/ X. X.
Xxxxxxx
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Typed
Name
X. X. Xxxxxxx
Title Executive_Vice P
resident_
LANDLORD'S
NOTARY ACKNOWLEDGEMENT:
STATE
OF VIRGINIA
COUNTY
OF NORFOLK
¥J
'
, a
Notary Public for said County and State do hereby
Macon X. Xxxxx, Xx. General
Partner of DMK
Associates , a
I, .Xxxxxx
X. Cox_
certify that
__________________ _________ __ ___ ______
Virginia Limited Partnership
, and being duly authorized to sign in behaif of said Limited Partnership
personally appeared before me this day and acknowledged the due execution of the
foregoing instrument.
Witness
my hand and Notarial Seal this
17th
day of July, 1995.
Notary
Public
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My
Commission Expires;
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/s/ Xxxxxx X.
Xxx
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August
31. 1995
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(Notary
Seal)
TENANT'S NOTARY
ACKNOWLEDGEMENT:
This
17th
day of July, 1995 personally came before me X. X. Xxxxxxx, who being duly sworn,
says that he is the Executive Vice President of Dollar Tree Stores, Inc., and
that the seal affixed to the foregoing instrument in writing is the corporate
seal of the corporation and that said writing was signed and sealed by him in
behalf of said corporation by its authority duly given.
My
commission expires:
August
31,
1999 /S/ Xxxxx X.
Xxxxxxxx
Notary Public
(Notary
Seal)
Dollar
tree stores, inc
Lease
Administration Pax: (000) 000-0000 Direct Dial: (000)
000-0000
September
27,2006
0000
Xxxxxx Xxxx Xxxxx 000, XX Xxx 000 Xxxxxxxx Xxxxx, Xxxxxxxx
00000
Re: Occasions
Store #00000
Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxxxxx
Dear Sir
or Madam;
Pursuant
to Section C.2 of that certain Lease dated July 17, 1995 and Amendment dated
October 13, 2005, relating to the above referenced store; please confirm that
the following information is correct by signing and returning a copy of this
Commencement Certificate for our file.
1
.. The store
opened as Occasions on September 26, 2006,
3. The turnover date for
Occasions was August 14, 2006.
3. The
rent will increase on December 1,2007.
4. The
expiration date of the current term is November 30, 2011.
Your
prompt attention to that matter will be greatly appreciated. W« look forward to
a long and prosperous relationship with your company. Thank
you,
Very
truly yours,
DOLLAR
TREE STORES, INC.
/s/
Xxxxxxxx D, Iman,
Manager,
Lease Administration
The
foregoing is approved this 28th day of
September 2006.
Name
of Company: DMK Associates
By:
/s/ Xxxxx Xxxxxxxx
000 Xxxxx
Xxxxxxx Xxxxxxxxxx, XX
2.1320
Domin O
Adminlstrator/DLTR
09/26/2006
10:27 AM
To Xxxxx Xxxxx/REA/DLTR@DLTR
cc bcc
Subject Store Announcements Subscription
The Real
Estate Department is pleased to announce the following nev/ or re-opened
stores:
H 50001
- Occasions, Chesapeake,
VA DT
- 5000 SF 09/26/2006, OPEN
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