Exhibit 10.6
XXXXXX BLOCK LEASE
LANDLORD: X.X. XXXXXX LIMITED PARTNERSHIP
TENANT: DOVER SADDLERY, INC.
PREMISES: 000-000 XXXXXXXXXX XXXXXX XXXXXXXXX, XXXXXXXXXXXXX 00000
TERM: Nine years and 11 months, commencing August 1, 1997 and ending
June 30, 2007
EXTENSIONS: One (1) successive period of five (5) years
INDEX
PAGE
----
I. INTRODUCTORY CLAUSE 1
II. LEASE OF PREMISES IN SHOPPING AREA:
LANDLORD'S RESERVATIONS 1
III. FIXED COMMENCEMENT AND TERMINATION 2
IV. MINIMUM RENT 2
V. INTEREST ON LATE RENT 2
VI. PERCENTAGE SHARE OF INCREASES IN TAXES
AND LANDLORD'S EXPENSES 3
VII. HIGH CLASS RETAIL OPERATION 6
VIII. LANDLORD'S RIGHT TO ENFORCE
PARKING REGULATIONS 7
IX. MAINTENANCE AND REPAIR 7
X. TENANT'S DUTY TO OBTAIN PERMITS AND LICENSES 8
XI. TENANT'S OBLIGATION TO COMPLY WITH LAWS, ETC. 9
XII. TENANT TO PAY AND PROVIDE FOR UTILITIES 10
XIII. FIXTURES TO BECOME PROPERTY OF LANDLORD 10
XIV. LANDLORD'S CONSENT REQUIRED: DUTY TO RESTORE 11
XV. NO LIENS: ADDITIONS TO BELONG TO LANDLORD 12
XVI. TENANT'S RIGHT TO INSTALL SIGNS: INDEMNITY TO LANDLORD 12
ii
PAGE
----
XVII. TENANT'S OBLIGATION TO INSURE: ALL INCLUSIVE FORM 13
XVIII. TENANT NOT TO INCREASE RISK 13
XIX. TENANT TO REPLACE GLASS AND CARRY INSURANCE 14
XX. FIRE, CASUALTY, OR EMINENT DOMAIN 14
XXI. COMPREHENSIVE RIGHTS OF LANDLORD 15
XXII. RIGHT TO REPAIR PREMISES AFTER DEMAND 16
XXIII. RIGHT TO CURE DEFAULTS WITHOUT NOTICE 16
XXIV. LEASE UNAFFECTED BY LANDLORD'S NONPERFORMANCE FOR ANY OUTSIDE
CAUSE 17
XXV. INDEMNITY AGAINST CLAIMS ARISING FROM TENANT'S ACTS 17
XXVI. DELIVERY TRUCKS 18
XXVII. QUIET ENJOYMENT WITH REPRESENTATION OF OWNERSHIP AND NO
ENCUMBRANCE 18
XXVIII. TENANT TO RESTORE PREMISES: ABANDONMENT OF TENANT'S PROPERTY 18
XXVIX. EXTENSIONS 19
XXX. ASSIGNMENT 20
XXXI. SUBORDINATION AND NONDISTURBANCE 21
XXXII. ESTOPPEL CERTIFICATE BY TENANT 22
XXXIII. EVENTS OF DEFAULT AND RIGHTS OF LANDLORD 22
XXXIV. PRESENT CONDITION AND USE 25
iii
PAGE
----
XXXV. RULES AND REGULATIONS: SHOPPING AREA 25
XXXVI. NOTICE BY PERSONAL OR MAIL DELIVERY: SEVERAL TENANTS 26
XXXVII. AMENDMENTS TO LEASE 26
XXXVIII. ENTIRE AGREEMENT: AMENDMENTS 26
XXXIX. WAIVER BY PARTIES OF JURY TRIAL 27
XL. APPLICABLE LAW 27
XLI. GENERAL RULES OF CONSTRUCTION 27
XLII. CAPTIONS 27
XLIII. CONFLICT BETWEEN RIDER AND PRINTED LEASE 28
XLIV. INVALIDITY OR INAPPLICABILITY OF CLAUSE 28
XLV. SUCCESSORS OR ASSIGNS 28
XLVI. NO WAIVER OF CONSENT BY LANDLORD 28
XLVII. COVENANTS AS CONDITIONAL LIMITATIONS 29
XLVIII. HOLDING OVER NOT CONSTRUED AS RENEWAL 29
XLIX. LANDLORD RELIEVED FROM LIABILITY FOLLOWING TRANSFER 29
L. USE AND OCCUPANCY OF 000 XXXXXXXXXX XXXXXX 30
LI. RENT PAYABLE ON 000 XXXXXXXXXX XXXXXX 30
LII. CONSTRUCTION AT 000 XXXXXXXXXX XXXXXX 31
LIII. BUSINESS DESCRIPTION 32
iv
I. INTRODUCTORY CLAUSE
This Indenture made and dated this 29th day of May, 1997 between the X. X.
XXXXXX LIMITED PARTNERSHIP, under agreement dated November 15, 1993, which
acquired title by deed recorded at Norfolk Registry of Deeds, Book 10235 Page
578, c/o its general partner, The Xxxxxx Corporation, 00 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as the "Landlord") and
DOVER SADDLERY, INC., a Massachusetts corporation with a principal office at 00
Xxxx Xxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred
to as the "Tenant").
II. LEASE OF PREMISES IN SHOPPING AREA:
LANDLORD'S RESERVATIONS
Landlord hereby leases to Tenant and Tenant hires and takes from Landlord,
the Premises (hereinafter called "the Demised Premises"), located in shopping
area known as the Xxxxxx Block on Washington and Church Streets in the town of
Wellesley, County of Norfolk, Massachusetts (hereinafter the "Shopping Area"),
being more specifically designated as the two contiguous stores numbered 591 and
000 Xxxxxxxxxx Xxxxxx comprising approximately 1,300 and 1600 square feet
respectively on the first floors and two basements.
SUBJECT TO and with the benefit of the terms, covenants, conditions, and
provisions of this Lease;
TOGETHER with the appurtenances specifically granted in this Lease,
including the use in common with others of the Common Areas as hereinafter more
fully provided, but reserving and excepting to Landlord (1) the use of the
exterior faces of the aforesaid walls; and (2) the right to install, maintain,
use, repair, and replace pipes, ducts, conduits, and wires leading through the
Demised Premises, in locations which will not materially interfere with Tenant's
use thereof, and serving other parts of the Shopping Area.
Tenant and employees, agents, contractors and customers of Tenant shall
have the right to use, in common with and with due regard for the rights of
others entitled to use the same, the common areas of the Shopping Area for all
such purposes as said various common areas shall be designated by Landlord, but
only in connection with business upon the Xxxxxx Block. Landlord reserves the
right at any time and from time to time to change the location or size of any of
the common areas, but no such change shall materially impede the access to or
visibility of the premises from Washington Street.
-1-
III. FIXED COMMENCEMENT AND TERMINATION
The term of the aforesaid letting shall be for nine (9) years and ten (10)
months commencing on the first (1st) day of August, 1997, and ending on the
thirtieth (30th) day of June, 2007, both dates inclusive, unless sooner
terminated, as herein provided.
IV. MINIMUM RENT
During the term of this Lease, Tenant covenants and agrees to pay the
Landlord a fixed minimum rent (hereinafter called the "Minimum Rent"), in lawful
money of the United States of America, as and at the time of payment shall be
legal tender for the payment of public or private debts, in equal monthly
installments on the first day of each and every month in advance, at the office
of the Landlord, or such other place as the landlord may designate as follows:
Commencing on the first (1st) day of August, 1997 and terminating on the
thirtieth (30th) day of June 1998 an annual MINIMUM RENT of FORTY-EIGHT
THOUSAND ONE HUNDRED TWENTY ($48,120.00) dollars payable in eleven (11) equal
monthly installments of $4,010.00; and commencing on July 1, 1998 and each July
1st thereafter the MINIMUM RENT shall be increased by the percentage increase in
the CPI-U (U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price
Index for All Urban Consumers, Boston, Massachusetts) as follows. The base CPI-U
shall be the CPI-U for November 1996; the base MINIMUM RENT shall be $48,120.00
per year and the next CPI-U shall be the May preceding the July 1 change. For
example, for the lease year beginning July 1, 1998, if the November 1996 CPI-U
is 165 and if we assume the CPI-U for May of 1998 is 168.3, a two percent
increase, the new MINIMUM RENT beginning July 1, 1998 would increase by two (2%)
percent and be $49,082.40 per year or $4,090.20 per month; and if we assume the
CPI-U for May 1999 is 171.6, a four percent increase over November 1996, then
the new MINIMUM RENT beginning July 1999 would be $50,044.80 per year or
$4,170.40 per month.
V. INTEREST ON LATE RENT
Interest shall accrue at the lesser of (a) eighteen percent (18%) per annum
or (b) the highest lawful rate of interest which landlord may charge to tenant
without violating any applicable law, from and after the due date of any payment
of fixed minimum rent,
-2-
percentage rent, tax rent, utility service charge, or any additional rent
hereinafter described. Provided, however, the interest shall be waived if the
rent is received within ten (10) days of the due date.
VI. PERCENTAGE SHARE OF INCREASES IN TAXES
AND LANDLORD'S EXPENSES
In addition to this Tenant shall pay Tenant's proportionate share of
Landlord's expenses and taxes incurred in operating the demised premises as
follows.
Common Areas
1. "The common areas of the Shopping Area" shall be the public or common
stairways, parking areas, driveways, walks, entrances, exits and service roads
from time to time existing in the Shopping Area. All costs and expenses incurred
by Landlord (including, as an expense, amounts determined in accordance with
generally accepted accounting practices as reasonable and appropriate reserves
for the replacement of equipment not real estate in nature used incident
thereto) in removing snow, ice and refuse from, cleaning, providing water and
other utilities for, insuring, operating, managing, equipping, policing (if and
to the extent provided by Landlord), lighting, repairing, replacing,
maintaining, landscaping and gardening, as to the grounds (including the
maintenance of utilities lines, conduits, fixtures and equipment located
therein) shall be determined, and Tenant shall share in paying the same, all as
hereinafter provided. For purposes hereof, a supervisory fee which shall not
exceed five (5%) percent thereof may be included as part of said costs and
expenses. Tenant's share of said costs and expenses shall be equal to the
product of (a) "Tenant's Portion" (hereinbelow defined), and (b) the total of
said costs and expenses. Tenant's Portion shall be NINE and EIGHT TENTHS (9.8%)
percent. If and when Landlord makes capital improvements to the common areas it
shall expense or depreciate them over those number of years allowed under the
Internal Revenue Code and shall collect same from Tenant over the same number of
years as the expense or depreciation is taken. Payment on account of Tenant's
share of said costs and expenses shall be paid, as part of Tenant's total rent,
monthly, and at the times and in the fashion herein provided for the payment of
MINIMUM RENT. For an initial period from the commencement of the term of this
Lease, until June 30, 1998, the additional amount so to be paid each month is
$278.62 per month based on calendar year 1996. Beginning on July 1, 1998 and on
each July 1st thereafter Tenant shall pay its proportionate share of the said
costs and expenses as
-3-
set forth in section 6., below. The monthly payment on account of said costs and
expenses shall be adjusted each year to equal one-twelfth (1/12) of Tenant's
Portion thereof for the immediately preceding accounting period (e.g. for the
payments beginning July 1, 1998 the cost and expenses for the calendar year 1997
shall be used).
Real Estate Taxes
2. Tenant shall pay to Landlord, as additional rent, the real estate taxes
allocated to the demised premises for each calendar year during the term hereof.
For the calendar years during which the term of this Lease shall commence and
terminate, Tenant shall pay a pro rata portion of the real estate taxes
allocated to the demised premises. If there shall be more than one taxing
authority, the real estate taxes for any period shall be the sum of the real
estate taxes for said period attributable to each taxing authority. For purposes
of this Lease, the real estate taxes allocated to the demised premises shall be
equal to the product of (a) "Tenant's Portion: (hereinbelow defined), and (b)
the real estate taxes upon the Shopping Area. Tenant's Portion shall be a NINE
and EIGHT TENTHS (9.8%) percent. Payment on account of the real estate taxes
allocated to the demised premises shall be paid, as part of Tenant's total rent,
monthly, and at the times and in the fashion herein provided for the payment of
MINIMUM RENT. For the initial period from the commencement of the term of this
Lease until June 30, 1998 the additional amount so to be paid each month is
$311.40 per month based on 1996. Beginning on July 1, 1998 and on each July 1st
thereafter, Tenant shall pay its proportionate share of the real estate taxes as
set forth in section 5. below. The payments due on the real estate taxes
allocated to the demised premises shall be paid monthly by a payment which is
one-twelfth (l/l2th) of the real estate taxes allocated to the demised premises
for the previous calendar year.
3. In the event of any abatements, refunds or rebates of the real estate
taxes upon the Shopping Area, an appropriate adjustment shall be made between
Landlord and Tenant to take into account such abatements, refunds or rebates
less all costs of securing the same. Furthermore, an equitable adjustment shall
be made in the event of any change in the method or system of taxation from that
which is now applicable, including without limitation any change in the dates
and period for which such taxes are levied.
4. Tenant shall pay all taxes upon its signs and other property in or upon
the demised premises. For the purpose of this Article such taxes shall not be
included within real estate taxes upon the Shopping Area. If upon the assessment
day for real estate taxes for any tax year any construction shall be incomplete,
an
-4-
appropriate adjustment shall be made to carry out the intent of the parties. The
expression "real estate taxes" shall include betterment assessments, so-called
rent taxes and other governmental charges which may be charged, assessed or
imposed upon the Shopping Area.
5. Tenant's present share of the common area expenses is $278.62 per month
and its share of the real estate taxes is $311.40 per month, both of which are
to be paid in addition to the MINIMUM RENT and shall continue at such level
through June 30, 1998. Said amounts are based on total common area expenses of
$38,130.00 for calendar year 1996 and total real estate taxes for calendar year
1996 of $34,117.00. For the period commencing July 1, 1998 and each year
thereafter TENANT'S PORTION of said expenses and taxes shall be paid by Tenant
in addition to the MINIMUM RENT. From and after July 1, 1998, the aggregate of
the MINIMUM RENT and the TENANT'S PORTION of both the common area expenses and
the real estate taxes shall not under any circumstances except as noted
hereinafter fall below $4,600.00 per month, unless reduced by abatement as
provided above.
6. Any controversy which may arise concerning the designation under this
article of the proper manner to compute the adjustment in annual rental rate and
monthly installments as herein provided, shall be determined by submission of
said dispute to the American Arbitration Association in Boston, Massachusetts.
7. Within forty-five (45) days after the end of each calendar year,
Landlord will furnish to Tenant a statement in reasonable detail setting forth
its compilation of Operating Costs, as hereinafter defined, and setting forth
Tenant's share of Operating Costs, which statement shall be prepared in
accordance with generally accepted accounting principles. Tenant shall be
entitled, at its expense, to audit Landlord's statement of Operating Costs and
if such audit reveals an overcharge, Landlord will pay to Tenant the amount of
such overcharge. If the audit reveals an overcharge that is greater than three
(3%) percent of the Operating Costs, Landlord will, in addition to paying such
overcharge, pay to Tenant the costs of the audit.
8. The term "Operating Costs" shall NOT include (i) the cost of enlarging
the building, (ii) the cost of structural repairs to the building, (iii) repair
and maintenance to any portion of the building leased to other tenants, (iv)
leasing commissions, (v) management fees and other charges and expenses related
to the operation of the building in excess of fees, charges or expenses which
could be obtained from unrelated third party professionals for similar services
rendered, and (vi) all other costs and/or expenses which are not classified as
building operating expenses pursuant to generally accepted accounting
principles. "Building maintenance,
-5-
repair, and operating costs" shall also exclude the cost of utilities or
services provided to other tenants of the Building but not to Tenant, exclusive
of common areas; interest, principal, and financing costs incurred in connection
with any debt associated with the Building; costs associated with tenant
improvements, brokerage commissions, or legal expenses for new tenancies of the
Building; penalties and other costs resulting from Landlord's violation of any
governmental requirement.
VII. HIGH CLASS RETAIL OPERATION
1. It being recognized that the premises where the demised premises is
located has been developed and is maintained by Landlord as a location for an
outstanding type of business occupancy, Tenant, as a special inducement to
Landlord to enter into this Lease, hereby represents and warrants, and covenants
and agrees, that the business to be conducted by Tenant at the demised premises
and the kind and quality of tenant merchandise will be "first class" and
reputable in every respect and that the sales methods to be employed by Tenant
in the business as well as all other elements of merchandise, display, and
advertising will be defined by and in conformity with standards of practice
followed by superior types of stores, shops, or concerns dealing in the same or
similar merchandise or conducting a similar business in the Shopping Area and in
the immediate vicinity of the demised premises. Under no circumstances shall any
auction be conducted at the premises, nor shall any liquidation sale, "going out
of business" sale, or the like be carried on therein other than such as those
incident to the normal routine of Tenant's business with its regular clientele.
2. Tenant covenants that they shall for five days per week and twelve
months per year occupy and use the entire premises for the purpose or purposes
specified herein. Lessee shall at all times carry a full and complete stock of
seasonable merchandise and shall maintain adequate personnel for the efficient
service of its customers, and in general employ its best judgment, efforts and
abilities so as to operate the business conducted by it on the premises in a
manner calculated to produce the maximum volume of sales and transactions
obtainable. Lessee shall keep the demised premises open and available for
business activity therein during all usual days and hours for such business in
the vicinity except when prevented by strikes, fire, casualty, or other such
unavoidable occurrences.
3. Tenant warrants and covenants to Landlord that it will conduct its
business solely as described herein and on the attached
-6-
"Business Description" rider.
VIII. LANDLORD'S RIGHT TO ENFORCE PARKING REGULATIONS
Tenant shall have the temporary right to use in common with the other
tenants in the building two parking spaces as provided by Landlord in the
parking area adjacent to Xxxxxx Street, for the parking of Tenant's automobile
or its employees or invitees, subject to the rules and regulations now or
hereafter adopted by the Landlord.
Tenant is not entitled to the use of more than two spaces. Tenant shall not
use nor permit any of its officers, agents, employees, invitees or licensees to
use any parking area owned by the Landlord other than the parking area adjacent
to Xxxxxx Street provided, however, all other articles to the contrary
notwithstanding, if Landlord deems it advisable, Landlord may set aside 100
percent of the total parking area for use as a separate area for customers of
the Shopping Area and may charge a parking fee to customers and the Tenant.
Landlord reserves the right to tow away or affix self-adhering "Illegally
Parked" stickers to the windshields of automobiles illegally parked and to adopt
any regulations necessary to curtail unauthorized parking including the required
use of "parking permits." Tenant will, on request, furnish Landlord with
automobile license numbers assigned to automobiles belonging to or used by
Tenant or such other persons.
IX. MAINTENANCE AND REPAIR
1. Landlord shall repair and maintain in good order and condition the
exterior and structure of the demised premises, including without limitation the
outside walls, foundations, roof, gutters, downspouts, all structural members
and all wiring, plumbing, pipes, conduits, and other utility and sprinkler
fixtures and equipment which serve any premises in the Shopping Area including
the demised premises, and shall in addition make all repairs and alterations
necessary to keep the demised premises and any basement thereunder dry,
excepting, however, repairs to the same necessitated by act, default, or
negligence of Tenant, its employees, agents, licensees, or contractors.
2. Tenant shall keep and maintain, subject to damage by fire, taking,
casualty, or other cause beyond Tenant's control, structural defects and
reasonable wear and tear only excepted, the interior of
-7-
said premises, including the heating and air-conditioning systems, and the
plumbing and electrical systems, within the demised premises and not used in
common with other tenants (including the replacement of all or any part of the
plumbing and electrical systems as aforesaid which are beyond repair), and all
glass, including that in windows, doors, and skylights, in good order, repair,
and condition, and shall replace any glass which may be injured or broken with
glass of the same quality, except, provided that Tenant shall have complied with
the provisions hereof with respect to maintenance, that Landlord shall replace
all or any part of the heating and air-conditioning systems which are beyond
repair.
3. Landlord shall make all repairs, alterations, and additions which may be
required by any laws, ordinances, orders, or regulations or any public
authorities having jurisdiction over the demised premises, except that Tenant
shall make all such repairs, alterations, and additions required by any special
use made of the demised premises by Tenant.
4. Tenant shall have the right, at its expense, from time to time, to
redecorate the demised premises and to make such nonstructural alterations and
changes in the interior thereof as it shall deem expedient or necessary for its
purposes, provided however, that such alterations and changes shall not injure
the safety of the structure of the demised premises, nor diminish its value, and
shall be done in a good and workmanlike manner. Landlord hereby authorizes
Tenant to install, if Tenant so elects, all refrigerating and other equipment,
including water-saving devices, in the demised premises and on the roof thereof.
Landlord shall execute and deliver upon request of Tenant such instrument or
instruments embodying the approval of Landlord which may be required by any
public or quasi-public authority for the purpose of obtaining any license or
permit for the making of such alterations, changes and/or installations in, to
or upon said demised premises, Tenant agreeing to pay for such license or
permit.
X. TENANT'S DUTY TO OBTAIN PERMITS AND LICENSES
The Tenant shall, at its own cost and expense, procure each and every
permit, license, certificate or other authorization and any renewals, extensions
or continuances of the same required in connection with the lawful and proper
use of the demised premises or required in connection with any building or
improvements on the demised premises. Neither a failure on the part of the
Tenant to procure such permit, license, certificate or other authorization, nor
the revocation of the same, shall in any way affect the
-8-
liability of the Tenant for the payment of the rent herein reserved or the
performance or observance of any of the covenants or conditions herein contained
on the Tenant's part to be performed and observed.
XI. TENANT'S OBLIGATION TO COMPLY WITH LAWS, ETC.
The Tenant covenants to comply with any and all laws, statutes, ordinances,
and regulations, federal, state, county, or municipal, now or hereafter in
force, applicable to the leased premises as opposed to the building relating to
use or occupancy thereof or to the making of repairs thereto or of changes,
alterations, or improvements therein, ordinary or extraordinary, seen or
unforeseen, including but not limited to the performance of any duty imposed
upon the Landlord or Tenant by such laws, statutes, ordinances, or regulations
in respect of the sidewalks, curbs, streets, or vaults adjacent to the leased
premises. The Tenant also covenants to comply with any and all rules and
regulations applicable to the leased premises issued by the Board of Fire
Underwriters, or by any other body hereinafter constituted exercising similar
functions and insurance companies writing policies covering the demised premises
which now or hereafter may become applicable to the demised premises. The Tenant
shall pay all costs, expenses, claims, fines, penalties, and damages that may in
any manner arise out of or be imposed because of the failure of Tenant to comply
with this section, and in any event agrees to indemnify the Landlord from all
liability with reference to the same. The Landlord and Tenant shall each
promptly give notice to the other of any notice of violation received by the
Tenant or Landlord respectively.
Without diminishing the obligation of the Tenant, if the Tenant shall at
any time fail or neglect to comply, to the extent reasonably appropriate and as
expeditiously as reasonably feasible, with any of said laws, rules,
requirements, orders, directions, ordinances or regulations concerning or
affecting the demised premises, or the use and occupation thereof, or of any
building thereof, as hereinbefore provided, and, if a stay is necessary, shall
have failed to obtain a stay or continuance thereof, the Landlord in addition to
any other remedies shall be at liberty, after thirty (30) days prior written
notice to Tenant, to comply therewith, and reasonable expenses consequent
thereon shall be borne and paid by the Tenant; and upon Tenant's failure so to
pay, the Landlord may pay the same and any payments so made by the Landlord,
together with the interest thereon to be computed at the rate of
-9-
eighteen percent per annum from the date of payment, shall be considered as
additional rent to be added to the installment of fixed rental next accruing,
and shall entitle the Landlord to enforce any of the terms, provisions,
conditions and covenants herein contained that may be applicable to such rent.
Tenant shall have the right to contest by appropriate legal proceedings in
the name of Tenant or Landlord, or both, without cost or expense to Landlord,
the validity or application of any law, ordinance, rule or requirement referred
to above and Landlord agrees to cooperate with Tenant and will execute and
deliver any appropriate papers which may be necessary and proper to permit
Tenant to contest the validity or application of any such law, ordinance, order,
rule, or requirement.
XII. TENANT TO PAY AND PROVIDE FOR UTILITIES
The Tenant shall pay such water and sewer charges or rentals as may, during
the term of this Lease, be assessed or imposed for the water used or consumed in
or on the leased premises, whether determined by meter or otherwise, as soon as
the same may be payable. The Tenant shall pay for all gas, oil, water, sewer
usage, electricity and other utilities consumed on the leased premises during
the term of this Lease.
XIII. FIXTURES TO BECOME PROPERTY OF LANDLORD
All fixtures, equipment, improvements and appurtenances attached to, or
built into, the premises herein demised at the commencement of or during the
term, whether by the Landlord at its own expense or at the expense of the
Tenant, or by the Tenant, shall at Landlord's option (which may be exercised on
a piece by piece basis) be and remain part of the premises and shall not be
removed by the Tenant at the end of the term, unless otherwise expressly
provided in this Lease. All electric, plumbing, heating, sprinkling, telephone
(not including telephone sets), telegraph, communication and radio systems (not
including stereo receivers/speakers which are not built in), fixtures and
outlets, partitions, railings, gates, doors, vaults, paneling, molding,
shelving, radiator enclosures, corks, rubber, linoleum, tile, composition and
other permanent floors, and ventilating silencing, air-conditioning and cooling
equipment shall be deemed to be included in such fixtures, equipment,
improvements and appurtenances, at Landlord's said option. Tenant shall in a
good
-10-
and workmanlike manner remove all property not deemed a fixture and restore the
premises to its original condition.
Where not built into the space and if furnished by or at the expense of the
Tenant, all removable electric fixtures, carpets, wind deflectors, electric
fans, water coolers, furniture, trade fixtures, and business equipment shall not
be deemed to be included in such fixtures, equipment, improvements, and
appurtenances and may be removed by the Tenant upon condition that such removal
does not materially damage the building and upon condition also that the cost of
repairing any damage to the premises or the building arising from such removal
shall be paid by the Tenant.
All the outside walls of the premises, including corridor walls and the
outside entrance doors to the premises, any balconies, terraces or roofs
adjacent to the premises, and any space in the premises used for shafts, stacks,
pipes, conduits, ducts, or other building facilities, and the use thereof, as
well as access thereto in and through the premises for the purpose of operation,
maintenance, decoration and repair, are expressly reserved to the Landlord, and
the Landlord has not conveyed any rights to the Tenant therein.
Without limiting the generality of the foregoing, where ceiling lighting
fixtures have been provided by the Landlord, and the Landlord has not conveyed
any rights to the Tenant, the Tenant shall not install additional ceiling
lighting fixtures without having first obtained written consent by the Landlord.
XIV. LANDLORD'S CONSENT REQUIRED:
DUTY TO RESTORE
The Tenant shall make no structural alterations, nor any other decorations,
additions or improvements in or to the demised premises which can be seen from
Washington Street or the parking lot without the Landlord's prior written
consent, but Landlord agrees that such consent shall not be withheld or delayed
unreasonably. All such work shall be of first class quality and shall be done at
such times and in such manner as shall minimize any inconvenience to other
occupants of the building in which the demised premises are located. As a
condition precedent to the Landlord's consent, the Tenant shall deliver to the
Landlord written plans and specifications for all such work. The Tenant shall
comply with all governmental rules and regulations in connection with such work
and shall prevent any lien or obligation from being created against or imposed
upon the leased premises, and will discharge all liens or charges for services
rendered or material furnished immediately after said liens occur or
-11-
said charges become due and payable. Unless waived by the Landlord, the Tenant
shall restore the demised premises to their former condition at the expiration
of the term of this Lease.
XV. NO LIENS: ADDITIONS TO BELONG TO LANDLORD
Tenant covenants and agrees that it has no power to incur any indebtedness
giving a right to a lien of any kind or character upon the right, title, and
interest of Landlord in and to the land covered by this Lease, and that no
person shall ever be entitled to any lien directly or indirectly derived through
or under it, or its agents or servants, or on account of any act or omission of
Tenant, which lien shall be superior to the interest in this Lease reserved to
Landlord upon the leased premises. All persons contracting with Tenant, or
furnishing materials or labor to Tenant, or to its agents or servants as well as
all persons whomsoever, shall be bound by this provision of this Lease. Should
any such lien be filed, Tenant shall discharge the same by paying it, or by
filing a bond or otherwise, as permitted by law, within thirty (30) days of
Tenant's receipt of notice or the filing of such lien.
XVI. TENANT'S RIGHT TO INSTALL SIGNS:
INDEMNITY TO LANDLORD
The Tenant shall have the privilege of placing on the demised premises such
signs as it deems necessary and proper in the conduct of its business, provided
Landlord approves of said signs in writing, which approval shall not be
unreasonably withheld, and the Tenant pays all permit and license fees which may
be required to be paid for the erection and maintenance of any and all such
signs, and provided such signs are legally permitted to be installed. The Tenant
agrees to submit all drawings and specifications for signage to Landlord for its
prior approval. Provided, however, Tenant need not get prior approval of paper
signs it puts in the windows on a day to day basis, but Landlord may object (on
a reasonable basis) and require Tenant to remove same immediately. The Tenant
agrees to exonerate, save harmless, protect and indemnify the Landlord from, and
against any and all losses, damages, claims, suits or actions for any damage or
injury to the person or property caused by the erection and maintenance of such
signs or parts thereof, and, insurance coverage for such signs shall be included
in the public liability policy which the Tenant is required to furnish under
Section XVIII hereof.
-12-
XVII. TENANT'S OBLIGATION TO INSURE:
ALL INCLUSIVE FORM
During the term of this Lease, the Tenant, at its sole cost and expense,
and for the mutual benefit of the Landlord and Tenant, shall carry and maintain
Commercial General Public Liability insurance, including property damage,
insuring the Landlord and the Tenant against liability for injury to persons or
property occurring in or about the leased premises or arising out of the
ownership, maintenance, use or occupancy thereof. The liability under such
insurance shall not be less than $1,000,000.00 for any one person injured or
killed and not less than $2,000,000.00 for any one accident.
All policies of insurance (except liability insurance) shall provide by
endorsement that any loss shall be payable to the Landlord or Tenant as their
respective interests may appear. The Tenant shall have the privilege of
procuring and obtaining all of such insurance through its own sources, provided,
however, Tenant shall provide Landlord each year with a new certificate of
insurance certifying that the required coverage is in full force and effect for
the next twelve months.
XVIII. TENANT NOT TO INCREASE RISK
Tenant shall not do or permit to be done any act or thing in or upon the
demised premises which will invalidate or be in conflict with the certificate of
occupancy or the terms of the Massachusetts standard form of fire, boiler,
sprinkler, water damage and other insurance policies covering the building and
the fixtures and property therein; and Tenant shall, at its own expense, comply
with all rules, orders, regulations or requirements of the Massachusetts Board
of Fire Underwriters or any other similar body having jurisdiction, and shall
not knowingly do or permit anything to be done in or upon the demised premises
or bring or keep anything therein or use the demised premises in a manner which
increases the rate of fire insurance upon the building or on any property or
equipment located therein over the rate in effect at the commencement of the
term of this Lease.
If, by reason of any failure of Tenant to comply with the provisions of
this Lease, the rate of fire, boiler, sprinkler, water damage, or other
insurance (with extended coverage) on the building or on the property and
equipment of Landlord or any other tenant or subtenant in the building shall be
higher than it otherwise would be, Tenant shall reimburse Landlord and the other
tenants in the
-13-
building for that part of the fire, boiler, sprinkler, water damage, or other
insurance premiums thereafter paid by Landlord which shall have been charged
because of such failure by Tenant and Tenant shall make the reimbursement on the
first day of the month following such payment by Landlord. In any action or
proceeding wherein Landlord and Tenant are parties, a schedule or "make up" of
rate for the building or demised premises issued by the Massachusetts Fire
Exchange or other body making fire insurance rates for said premises, shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rate then applicable to said building or demised
premises.
XIX. TENANT TO REPLACE GLASS AND
CARRY INSURANCE
The Tenant shall repair, at its own expense, all damage or destruction of
any plate or window glass in the demised premises (unless same is caused by the
negligence of the Landlord, its agents, employees and servants), and shall
maintain adequate plate glass insurance at its own expense for the benefit of
the Landlord. If the Tenant fails to repair the damage of any plate glass or
window glass in the demised premises, or fails or refuses to maintain adequate
plate glass insurance for the benefit of the Landlord, then the Landlord may
repair said damage or destruction or may insure the plate glass and charge the
cost of such repairing or the cost of premium for the plate glass insurance to
the Tenant, and the amount thereof shall be deemed to be, and be paid as,
additional rent, but must be paid within ten (10) days of Landlord's invoice to
Tenant.
XX. FIRE, CASUALTY, OR EMINENT DOMAIN
A. ALL or SUBSTANTIALLY ALL: In the event that the Premises or any
substantial portion thereof shall be substantially damaged by fire or other
casualty or shall be taken by eminent domain, the Landlord may elect to
terminate this Lease, within thirty (30) days of such damage or taking. In the
event that such a fire or casualty or taking renders the Premises substantially
unsuitable for Tenant's intended use hereunder, then the Tenant may elect to
terminate this Lease if:
(1) the Landlord fails to give written notice within thirty (30) days of
intention to restore the Premises; or
(2) the Landlord fails to restore the leased Premises to a
-14-
condition substantially suitable for Tenant's intended use within one hundred
eighty (180) days of said fire casualty or taking; and
(3) in either case, the Tenant gives notice to the Landlord of its election
to terminate this Lease within thirty (30) days of the Landlord's failure to
give written notice of intention to restore the Premises under Paragraph (1)
hereof or within thirty (30) days of the failure of the Landlord to restore the
leased Premises pursuant to Paragraph (2) hereof.
During the period of any such casualty or taking, a just and proportional
abatement of rent shall be made.
The Landlord reserves and the Tenant grants to the Landlord all rights
which the Tenant may have for damages or injury to the Premises arising out of
any taking by eminent domain except that the Tenant may receive any damages or
payments arising out of such taking to which it may be entitled as a result of
damage to Tenant's trade fixtures, personal property, equipment and relocation
benefits.
(B) PARTIAL: In the event that the Premises are partially damaged by fire
or other casualty or a portion thereof is taken by eminent domain but the
Premises are still usable by Tenant for the conduct of its business in
substantially the same manner as it was conducted immediately prior to such
damage or destruction, then the Landlord shall undertake to make all required
repairs and during said period the rent shall be proportionately abated,
provided, however, that if Landlord has not completed such repairs within one
hundred eighty (180) days of said fire, casualty or taking, then Tenant shall
have the right to terminate this Lease by written notice to Landlord within
thirty (30) days of Landlord's failure to restore.
(C) INSURANCE: If Landlord elects to undertake repairs under Paragraph (A)
or is required to make repairs under Paragraph (B) Tenant shall immediately pay
over to Landlord any insurance proceeds payable on account of damage or
destruction to the Premises.
XXI. COMPREHENSIVE RIGHTS OF LANDLORD
The Landlord reserves the following rights:
1. Occupancy: During the last ninety (90) days of the terms of this Lease,
if during or prior to that time the Tenant vacates the premises, to decorate,
remodel, repair, alter or otherwise prepare the premises for reoccupancy.
2. Pass Keys: To have pass keys to the premises except as to areas
designated by Tenant as security areas.
3. Access for Repairs, Etc.: To take any and all measures,
-15-
including inspections, access to ceilings, repairs, alterations, additions and
improvements to the premises or to the building as may be necessary or desirable
in the operation of the building, provided that no such improvement shall reduce
the area rented by Tenant.
4. Show Premises: To show the premises to prospective tenants or brokers
during the last year of the term of this Lease, and to prospective purchasers at
all reasonable times during normal business hours provided prior notice is given
to Tenant in each case and the Tenant's use and occupancy of the premises shall
not be materially inconvenienced by any such action of the Landlord.
5. Heavy Equipment: To approve the weight, size and location of safes or
other heavy equipment or articles, which articles may be moved in, about or out
of the building or premises by Tenant hereunder only at such times and in such
manner as Landlord shall direct and in all event, however, at Tenant's sole risk
and responsibility.
The Landlord may enter upon the premises and may exercise any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant.
XXII. RIGHT TO REPAIR PREMISES AFTER DEMAND
If Tenant refuses or neglects to repair or maintain the premises, as
required hereunder, to the reasonable satisfaction of Landlord as soon as
reasonably possible after written demand, Landlord may make such repairs without
liability to the Tenant for any loss or damage that may accrue to Tenant's
merchandise, fixtures or other property, or to Tenant's business by reason
thereof, and upon completion thereof Tenant shall pay Landlord's costs for
making such repairs upon presentation of a xxxx therefor.
XXIII. RIGHT TO CURE DEFAULTS WITHOUT NOTICE
If Tenant shall default pursuant to Article XXXIII in the performance of
any covenant or promise on its part to be performed by virtue of any provisions
in any article in this Lease contained, Landlord may immediately, or any time
thereafter, without notice, perform the same for the account and at the expense
of Tenant. Any provision of this Lease to the contrary notwithstanding, however,
Landlord may so perform in Tenant's stead, in an emergency, or in the event that
Tenant's default shall result in circumstances requiring that such, default be
cured prior to the expiration of such
-16-
grace period.
If Landlord at any time is compelled to pay or elects to pay any sum of
money, or do any act which will require the payment of any sum of money, by
reason of the failure of Tenant to comply with any provision hereof, or if
Landlord be compelled to incur any expense including reasonable attorneys' fees
in instituting, prosecuting and/or defending any action or proceeding instituted
by reason of any default of Tenant hereunder, the sum or sums so paid by
Landlord with all interest, (at the lesser of eighteen percent per annum or the
highest lawful rate of interest which Landlord may charge to Tenant without
violating any applicable law) cost and damages, shall be deemed to be additional
rent hereunder and shall be due from Tenant to Landlord at the written election
of the Landlord on notice to Tenant on the first day of the month following the
incurring of such respective expenses.
XXIV. LEASE UNAFFECTED BY LANDLORD'S
NONPERFORMANCE FOR ANY OUTSIDE CAUSE
This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no way be affected, impaired or excused because Landlord is
unable to fulfill any of its obligations under this Lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of strike
or labor troubles or any outside cause whatsoever including, but not limited to,
governmental preemption in connection with a national emergency or by reason of
any rule, order or regulation of any department or subdivision thereof of any
government agency in connection with a national emergency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
XXV. INDEMNITY AGAINST CLAIMS ARISING
FROM TENANT'S ACTS
The Tenant agrees to exonerate, save harmless, protect, and indemnify the
Landlord or any owner of the demised premises from and against any and all
losses, damages, claims, suits or actions, judgments, and costs which may arise
or grow out of any injury to or
-17-
death of persons or damage to property, arising out of and attributable to the
negligence or acts, or omissions of, or use by the Tenant, its agents, servants,
employees, guests, or customers on the demised premises, except to the extent
that such losses, damages, claims, suits or actions, judgments and costs are
caused by the negligence of Landlord, its employees or agents.
XXVI. DELIVERY TRUCKS
The Tenant shall abide by any and all rules and regulations imposed by the
Landlord on all tenants regarding Tenant's delivery from the Premises and
receipt at the Premises by delivery truck. Tenant shall propose a schedule of
the dates and duration of all times a delivery truck shall be in the Xxxxxx
parking lot for Landlord's approval. Such approval as Landlord may change from
time to time shall be the only time delivery trucks are in the Xxxxxx parking
lot to service Tenant.
XXVII. QUIET ENJOYMENT WITH REPRESENTATION
OF OWNERSHIP AND NO ENCUMBRANCE
The Landlord represents and warrants that:
1. The Landlord is the owner of the leased premises and has the right to
make this Lease.
2. The Tenant, on paying the rent herein reserved and upon performing all
of the terms and conditions of this Lease on its part to be performed, shall at
all times during the term herein demised peacefully and quietly have, hold and
enjoy the leased premises.
3. The leased premises are now free from all encumbrances which would
materially affect Tenant's quiet enjoyment except mortgages of record.
XXVIII. TENANT TO RESTORE PREMISES:
ABANDONMENT OF TENANT'S PROPERTY
Upon the expiration or other termination of the term hereof, Tenant shall
quit and surrender to Landlord the premises, broom-clean, in good order and
condition, ordinary wear and tear and damage by fire or other casualty insured
against excepted. Tenant shall remove all property of Tenant as directed by
Landlord. If the last day of the term of this Lease or any renewal thereof falls
on Sunday or a legal holiday, this Lease shall expire at 5 p.m. on
-18-
the business day immediately preceding. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
Any personal property of the Tenant or of any subtenant or occupant which
shall remain in the building after the expiration or termination of the term and
the removal of the Tenant from the premises shall be deemed to have been
abandoned by the Tenant and either may be retained by the Landlord as its
property or may be disposed of in such manner as the Landlord may see fit. If
such personal property or any part thereof shall be sold, the Landlord may
receive and retain the proceeds of such sale and apply the same, at its option,
against the expenses of the sale, the cost of moving and storage, any arrears of
rent or additional rent payable hereunder and any damages to which the Landlord
may be entitled under Article XXXIII hereof or pursuant to law.
XXIX. EXTENSION
The Tenant shall have the opportunity, to be exercised as hereinafter
provided to extend the term of this Lease for one (1) successive period of five
(5) years upon the following terms and conditions:
1. At the time of the exercise of such opportunity, the Tenant shall not be
in default in the performance of any of the terms, covenants, or conditions
herein contained with respect to a matter as to which notice or default has been
given hereunder and which has not been remedied within the time limited in this
Lease and the Tenant must not have been in default in the performance of any of
the terms, covenants, or conditions herein contained with respect to a matter as
to which notice of default has been given hereunder on more than three (3)
occasions regardless of whether said defaults were cured within the time allowed
under this lease.
2. The extension shall be upon the same terms, covenants, and conditions as
in this Lease provided, except that,
a. There will be no further opportunity to extend for the term of this
Lease beyond the one period referred to above;
b. During the extension period beginning July 1, 2007 through June 30,
2012, the annual MINIMUM RENTAL rate payable by Tenant to Landlord
shall be the fair market rental value of the premises. Said fair
market rental value shall be determined as follows: Fair Market Rental
shall be defined as the average per square foot rental for street
level retail stores which have signed new leases
-19-
within three months of December 31, 2006, in the Wellesley Shopping
District. The Wellesley Shopping District shall be defined as the
retail shopping area within Wellesley (not Wellesley Hills) on
Xxxxxxxxxx Xxxxxx xxx Xxxxxx Xxxxxx. This option to renew shall
require that the Tenant give notice of its election to exercise its
right to renew no more than 9 months nor less than 5 months in advance
of the renewal date. Upon receipt of said notice, Landlord shall,
within 30 days, give Tenant notice of the fair market rental which
will be required for the new term as minimum rent, and if Tenant does
not agree within 30 days of said notice from the Landlord, then fair
market rental shall be a matter of arbitration, with each party
bearing the cost of one arbitrator and splitting the cost of a third
arbitrator chosen by the two arbitrators picked by the Landlord and
Tenant. Arbitrators shall be persons professionally qualified to
determine fair commercial rental value in the Town of Wellesley having
been active participants in the Wellesley real estate market for a
minimum of five years. The giving of said notice by tenant shall
commit tenant to the extended term with either the agreed upon or
arbitrated rent.
3. The Tenant shall exercise its right to extend the term of this Lease for
the first extension period by notifying the Landlord of the Tenant's election to
exercise such right no later than October 1, 2006. Upon the giving of such
notice, this Lease shall be deemed extended for the specified period, subject to
the provisions of this article, without execution of any further instrument.
4. If Tenant is a corporation or a trust any and all rights to extend this
Lease shall be null and void if there has been more than a twenty-five (25%)
percent change in the beneficial ownership of said corporation or trust.
Provided, however, this shall not apply to transfers to the immediate families
of Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx.
XXX. ASSIGNMENT
Tenant shall not assign this Lease without Landlord's approval. Any
assignment or sublease shall not release Tenant from the performance of any of
the terms, covenants, and conditions of this Lease. Tenant shall not suffer the
leased premises to be occupied for any business or purpose deemed disreputable
or extra-hazardous on account of fire. If, by reason of any such use, the fire
-20-
insurance rate shall be higher than it otherwise would be, Tenant shall pay the
entire amount of such increase.
If Tenant is a corporation or trust a change of beneficial ownership of
said corporation or trust of more than twenty-five (25%) percent (whether
occurring in one or more transfers of beneficial ownership) shall be considered
as assignment of this Lease requiring Landlord's approval. Provided, however,
this shall not apply to transfers to the immediate families of Xxxxx X. Xxxxxx
and Xxxxx X. Xxxxxx.
Provided, however, if Tenant is either selling its business or changing the
beneficial ownership by more than 25%, then Landlord shall not unreasonably
withhold or delay its consent to any assignment of this lease required to
complete said sale. If the prospective new tenant is able to deliver a rent bond
running in favor of the Landlord equal to and securing one year's rent it shall
create a rebuttable presumption that the new tenant should be approved by the
Landlord.
XXXI. SUBORDINATION AND NONDISTURBANCE
This Lease and all of the rights of Tenant hereunder are and shall be
subject and subordinate to the liens of any mortgage or mortgages hereinafter
placed on the demised premises or any part thereof, and to any and all renewals,
modifications, consolidations, replacements, extensions or substitutions of any
such mortgage or mortgages (all of which are hereinafter termed the "Mortgage"
or "Mortgages".)
Such subordination shall be automatic, without the execution of any further
subordination agreement by Tenant. If however a written subordination agreement,
consistent with this provision, is required by a mortgagee, Tenant agrees to
execute, acknowledge, and deliver the same, and, in the event of failure so to
do, Landlord may, in addition to any other remedies for breach of covenant
hereunder, execute, acknowledge and deliver the same as the agent or
attorney-in-fact of Tenant, and Tenant hereby irrevocably constitutes Landlord
its attorney-in-fact for such purpose, provided that the holder of any such
mortgage shall enter into an agreement with Tenant that in the event of
foreclosure or other action taken under the mortgage by the holder or any
assignee thereof, this Lease and the rights of Tenant hereunder shall continue
in full force and effect and shall not be terminated or disturbed except in
accordance with the provisions of this Lease.
-21-
XXXII. ESTOPPEL CERTIFICATE BY TENANT
Tenant agrees, at any time, and from time to time, upon not less than ten
(10) days' prior notice by Landlord, to execute, acknowledge, and deliver to
Landlord a statement in writing addressed to Landlord certifying that this Lease
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), stating the dates to which the fixed minimum rent,
additional rental, and other charges have been paid, and stating whether or not
to the best knowledge of the signer of such certificate, there exists any
default in the performance of any covenant, agreement, term, provision, or
condition contained in this Lease, and, if so, specifying each such default of
which the signer may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by Landlord and by any mortgagee or
prospective mortgagee of any mortgage affecting the building or the building and
the land, and by any Landlord under a ground or underlying Lease affecting the
land or building, or both.
XXXIII. EVENTS OF DEFAULT AND RIGHTS OF LANDLORD
1. (a) If Tenant shall fail to make payment of any fixed rent, additional
rent, or other charges required to be paid by Tenant under this Lease, within
ten (10) days after the same shall become due and payable under this Lease.
Provided, however, Tenant shall be entitled to one written ten (10) day notice
that a month's rent has not been received each calendar year on a non-cumulative
basis: or
(b) If Tenant shall default in the performance of any of the other
terms, covenants, or conditions of this Lease, and such default shall not have
been remedied within thirty (30) days after written notice by Landlord to Tenant
specifying such default and requiring it to be remedied; or
(c) If the leased premises shall be abandoned by Tenant or shall
become vacant for more than thirty (30) days during the term; or
(d) If an execution or attachment shall be issued against Tenant and
its property, and such execution or attachment shall not be vacated or removed
by court order, bonding, or otherwise, within a period of sixty (60) days after
the issuance thereof; or
(e) If Tenant suffers any condition to arise, exist, or continue by
reason of which the mortgagee may elect and does not elect to declare the
mortgage due and payable or any condition which
-22-
the mortgagee has the right to and demands that the same be obviated or removed;
Then Landlord, at its election, may terminate this Lease upon ten (10)
days' written notice to Tenant to such effect, and unless tenant shall have
cured the default complained of within said ten-day period, this Lease shall be
deemed terminated upon the expiration of said ten-day period, and Tenant shall
quit and surrender the leased premises on the date of such termination, but
Tenant shall remain liable as herein provided.
Provided, however, that there shall be no termination of this Lease under
the provisions of Subparagraphs (b) or (d) of this paragraph if Tenant is in
good faith attempting to remedy the default complained of and, in the exercise
of due diligence by Tenant, such default cannot be remedied by Tenant within the
period referred to in each Subparagraph. In the event of the foregoing
circumstances, the time within which Tenant may remedy the default complained
of, shall be extended for such period as may be reasonably necessary to do so,
but if Tenant shall neglect to proceed in good faith and as speedily as is
reasonably possible to remedy the aforesaid default, Landlord may give Tenant
another notice of at least ten (10) days of its election to end the term of this
Lease and thereupon, at the expiration of said ten days, the term of this Lease
shall terminate and come to an end and all the rights of occupancy hereunder on
the part of Tenant shall cease with the same force and effect as through the
term originally reserved herein had terminated, and Tenant shall quit and
surrender said premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
2. If this Lease shall be terminated, as provided in this paragraph, or if
Tenant shall be in default in the payment of fixed rent, additional rent,
deposits for taxes, or any other charges required to be paid by Tenant under
this Lease, for a period of ten (10) days after written notice to Tenant of its
default:
a. Landlord may immediately, or at any time thereafter, re-enter and
resume possession of the leased premises and remove all persons and
property therefrom either by summary dispossess proceedings or by a
suitable action or proceeding at law or in equity, or by force or
otherwise, without being liable for any damages therefor. No re-entry by
Landlord shall be deemed an acceptance of a surrender of this Lease.
b. Tenant will indemnify Landlord each month against all loss of rent
and all obligations which Landlord may incur by reason of any such
termination between the time of termination and the expiration of the term
of the Lease; or at the election of Landlord, exercised at the time of the
termination or at any
-23-
time thereafter, Tenant will indemnify Landlord each, month until the
exercise of the election against all loss of rent and other obligations
which Landlord may incur by reason of such termination during the period
between the time of the termination and the exercise of the election, and
upon the exercise of the election Tenant will pay to Landlord as damages
such amount as at the time of the exercise of the election represents the
amount by which the rental value of the demised premises for the period
from the exercise of the election until the expiration of the term shall be
less than the amount of rent and other payments provided herein to be paid
by Tenant to Landlord during said period. It is understood and agreed that
at the time of the termination or at any time thereafter Landlord may rent
the demised premises, and for a term which may expire before or after the
expiration of the term of this Lease, without releasing Tenant from any
liability whatsoever, that Tenant shall be liable for any expenses incurred
by Landlord in connection with obtaining possession of the demised
premises, with removing from the demised premises property of Tenant and
persons claiming under it (including warehouse charges), with putting the
demised premises into good condition for reletting, and with any reletting,
including, but without limitation, reasonable attorney's fees and brokers'
fees and that any monies collected from any reletting shall be applied
first to the foregoing expenses and then to the payment of rent and all
other payments due from Tenant to Landlord.
3. All sums which Tenant has agreed to pay by way of taxes, water or sewer
rents, or water meter charges, insurance premiums, maintenance, and all other
charges required to be paid by Tenant hereunder, becoming due from time to time
under the terms of this Lease, shall be deemed additional rent reserved in this
Lease within the meaning of Articles IV - VI.
4. If this Lease shall be terminated as provided in this paragraph or by
summary proceedings or otherwise, Landlord, in addition to any other right under
this paragraph, shall be entitled to recover the cost of placing the leased
premises in the same condition as that in which Tenant is required to surrender
them to Landlord under this Lease.
5. In the event this Lease is terminated by Landlord pursuant to any of the
terms of this paragraph, it shall be entitled to retain and set off against its
damages any moneys being held as deposits hereunder.
6. Tenant hereby expressly waives the service of any notice of intention to
re-enter provided in any statute or of the institution of legal proceedings to
that end, and Tenant for and on behalf of
-24-
itself and all persons claiming through or under Tenant, including any assignee
or creditor of Tenant, also waives any and all right of redemption or re-entry
or repossession or to restore the operation of this Lease in case Tenant shall
be dispossessed by summary proceedings or otherwise, or in case of re-entry or
repossession by Landlord, or in case of any expiration or termination of this
Lease in accordance with its terms. The terms "enter", "entry", "re-entry" and
"re-enter" as used in this Lease are not restricted to their technical legal
meaning.
7. Landlord may, at Landlord's option, reduce Tenant's liability for breach
of this lease to liquidated damages equal to twelve month's of the MINIMUM RENT
which was due just prior to the termination date of this lease. Landlord must
exercise this option in writing delivered to Tenant within ninety days of the
date Tenant vacates the demised premises. This option may only be exercised
pursuant to and as a part of Landlord's termination of this lease for Tenant's
breach.
XXXIV. PRESENT CONDITION AND USE
Tenant accepts the buildings, improvements, and personalty on the demised
premises in their present condition and without any representation or warranty
by Landlord as to the condition of said buildings or as to the use or occupancy
which may be made thereof, and Landlord shall not be responsible for any latent
defect or change of condition in the buildings and personalty, and the rent
hereunder shall in no case be withheld or diminished on account of any defect in
the buildings, nor for any change in their condition nor for any damage
occurring thereto, nor because of the existence of any violations in any
municipal departments.
XXXV. RULES AND REGULATIONS: SHOPPING AREA
Tenant's failure to keep and observe the rules and regulations described
below shall constitute a breach of the terms of this Lease in the manner as if
the same were contained herein as covenants. Landlord reserves the right, from
time to time, to create, amend or supplement a set of rules and regulations and
to adopt and promulgate additional rules and regulations applicable to the
leased premises and to the Shopping Area. Notice of such additional rules and
regulations, amendments, and supplements, if any, shall be given to the Tenant,
and Tenant agrees thereupon to comply with and observe all such rules and
regulations and
-25-
amendments thereto and supplements thereof, provided the same shall apply
uniformly to all tenants of the Shopping Area, and shall be applied in a
non-discriminatory manner.
XXXVI. NOTICE BY PERSONAL OR MAIL DELIVERY:
SEVERAL TENANTS
Except as otherwise in this Lease provided, any notice, xxxx, or statement
by either party to the other may be given or sent and shall be deemed to have
been duly given or sent if either delivered personally or mailed, certified mail
return receipt requested, in a postpaid envelope, addressed to Landlord: Xxxxxx
X. Grindle, GRINDLE, XXXXXXXX & XXXXXXXX, 00 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000;
and to Tenant: Xxxxx X. Xxxxxx, d/b/a Dover Saddlery, Inc., 000-000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, with a copy to Xxxxxxx X. Xxxxxx, Xx., Esq.,
Xxxxxx, Breed, Hart, Murphy & Xxxxxxx, P.C., 00 Xxxxxx Xxxxx Xxxxxx, Xxxxxx, XX
00000, or if any address for notices shall have been duly changed as hereinafter
provided, if mailed to the party at such changed address. Either party may at
any time change the address for notices, bills or statement by delivering or
mailing, as aforesaid, a notice stating the change and setting forth the changed
address.
Should the term "Tenant", as used in this Lease, refer to more than one
person, any notice, xxxx or statement given or sent as aforesaid to any one of
such persons shall be deemed to have been duly given or sent to Tenant.
XXXVII. AMENDMENTS TO LEASE
This Lease may be modified, amended, or surrendered only by an instrument
in writing duly executed by Landlord and Tenant.
XXXVIII. ENTIRE AGREEMENT: AMENDMENTS
It is expressly understood and agreed by and between the parties hereto
that this Lease sets forth all the promises, agreements, conditions,
inducements, and understandings between Landlord and Tenant relative to the
demised premises, and that there are no promises, agreements, conditions,
understandings, inducements, warranties, or representations, oral or written,
expressed or implied, between them other than as herein set forth
-26-
and shall not be modified in any manner, except by an instrument in writing
executed by the parties.
XXXIX. WAIVER BY PARTIES OF JURY TRIAL
The parties hereby waive trial by jury in any action, proceeding, or
counterclaim brought by either of them against the other on any matters
whatsoever arising under this Lease.
XL. APPLICABLE LAW
This Lease has been executed and delivered in the Commonwealth of
Massachusetts and shall be construed in accordance with the Laws of the
Commonwealth of Massachusetts.
XLI. GENERAL RULES OF CONSTRUCTION
This Lease shall be strictly construed neither against Landlord nor Tenant.
No remedy or election given by any provision in this Lease shall be deemed
exclusive unless so indicated, but each shall, wherever possible, be cumulative
with all other remedies in law or equity as otherwise specifically provided.
Each provision hereof shall be deemed both a covenant and a condition and shall
run with the land. Whenever the context of any provision shall require it, the
singular number shall be held to include the plural number, and vice versa, and
the words "he", "his" or "him" if used with reference to Landlord shall be
deemed to include the neuter or feminine gender of such pronoun. "Landlord"
whenever used includes all grantors of the term, who shall be held bound jointly
and severally hereby and this agreement shall inure to the benefit of and be
binding upon the respective heirs, legal representatives, successors, and
assigns of the parties hereto.
XLII. CAPTIONS
The parties mutually agree that the headings and captions contained in this
Lease are inserted for convenience of reference only, and are not to be deemed
part of or to be used in construing this Lease.
-27-
XLIII. CONFLICT BETWEEN RIDER AND PRINTED LEASE
If and to the extent that any of the provisions of any rider to this Lease
conflict or are otherwise inconsistent with any of the preceding provisions of
this Lease, or of the rules and regulations appended to this Lease, whether or
not such inconsistency is expressly noted in the rider, the provisions of the
rider shall prevail and, in case of inconsistency with said rules and
regulations, shall be deemed a waiver of such rules and regulations with respect
to Tenant to the extent of such inconsistency.
XLIV. INVALIDITY OR INAPPLICABILITY OF CLAUSE
If any term or provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
XLV. SUCCESSORS OR ASSIGNS
The covenants and agreements herein contained shall, subject to the
provisions of this Lease, bind and inure to the benefit of the Landlord, its
successors, and assigns and to Tenant, its successors, and assigns, except as
otherwise provided herein.
XLVI. NO WAIVER OF CONSENT BY LANDLORD
It is distinctly understood and agreed that the granting of any consent by
Landlord to Tenant to perform any act of Tenant requiring Landlord's consent,
under the terms of this Lease, or the failure on the part of the Landlord to
object to any such action taken by Tenant without Landlord's consent, shall not
be deemed a waiver by Landlord of its rights to require such consent for any
further similar act by Tenant, and Tenant hereby expressly covenants and
warrants that as to all matters requiring Landlord's consent under the terms of
this Lease Tenant shall secure such consent for each and every happening of the
event requiring such consent, and shall not claim any waiver on the part of
Landlord of the requirement to
-28-
secure such consent.
XLVII. COVENANTS AS CONDITIONAL LIMITATIONS
Tenant agrees that all of Tenant's covenants and agreements herein
contained providing for the payment of money, and that Tenant's covenants to
remove mechanics' liens shall be deemed conditions as well as covenants, and
that if default be made in any such covenants, Landlord shall have all of the
rights (subject to the requirements of notice) provided for in Paragraph XXXIII
hereof.
XLVIII. HOLDING OVER NOT CONSTRUED AS RENEWAL
If Tenant or anyone claiming under Tenant shall remain in possession of the
demised premises or any part thereof after the expiration of the term of this
Lease without any agreement in writing between Landlord and Tenant with respect
thereto, prior to acceptance of rent by Landlord the person remaining in
possession shall be deemed a tenant at sufferance and after acceptance of rent
by Landlord the person remaining in possession shall be deemed a tenant at will,
subject to the provisions of this Lease insofar as the same may be made
applicable to a tenancy at will; provided, however, that minimum rent during
such period as such person shall continue to hold the demised premises or any
part thereof shall be payable at TWICE THE HIGHEST rate payable during the term
hereof.
XLIX. LANDLORD RELIEVED FROM LIABILITY FOLLOWING TRANSFER
In the event of the sale or transfer by the original or any subsequent
Landlord or assignee of its or their interest in the demised premises, such
Landlord disposing of its interest shall thereupon be automatically released
from all liability with respect to the covenants and obligations of Landlord
thereafter accruing, but Landlord will retain liability for any covenant or
obligation of Landlord occurring before such transfer; but such covenants and
obligations of Landlord thereafter accruing; shall be binding upon each new
owner of the demised premises for the respective periods during which each shall
be owner of premises.
-29-
L. USE & OCCUPANCY OF 000 XXXXXXXXXX XXXXXX
From the signing of this lease onward, Tenant shall pay the Minimum Rent
($2,213.00 per month), the real estate taxes ($153.72 per month) and the
expenses ($171.81 per month) associated with 000 Xxxxxxxxxx Xxxxxx (all
calculated at 1600/2900 of the total).
Tenant understands that 000 Xxxxxxxxxx Xxxxxx is presently occupied by a
tenant at will, Xxxx Xxxxxx Goldsmiths, and that Landlord is making every effort
to obtain possession of the premises from that tenant as soon as possible. As
soon as Landlord regains possession from Xxxx Xxxxxx Goldsmiths, Landlord shall
allow Tenant full access to the premises for purposes of doing any renovations
which Tenant desires to do on the premises, subject only to Landlord's priority
of having its workmen finish the preparation of 000 Xxxxxxxxxx Xxxxxx as set
forth below.
The recitation of August 1, 1997 as the date upon which the Tenant shall
begin leasing 000 Xxxxxxxxxx Xxxxxx is a target date for the Landlord to obtain
possession and complete its construction as set forth below and Tenant shall not
be expected to pay rent for the premises until August 1, 1997 at the earliest.
SEE BELOW.
LI. RENT PAYABLE ON 000 XXXXXXXXXX XXXXXX
Xxxxxxxx agrees that Tenant shall not be responsible for paying that
portion of the rent attributable to 000 Xxxxxxxxxx Xxxxxx or its proportionate
share of the expenses or its proportionate share of the real estate taxes on 000
Xxxxxxxxxx Xxxxxx until Landlord has: (i) regained possession of 000 Xxxxxxxxxx
Xxxxxx from the aforesaid Xxxx Xxxxxx Goldsmiths and (ii) completed Landlord's
construction as set forth below. Once both (i) and (ii) have been completed by
Landlord, Tenant shall be responsible to pay rent on a prorated basis for the
remainder of the month beginning at the completion of said (i) and (ii) and
thereafter on the first of each month as set forth hereinabove. The 000
Xxxxxxxxxx Xxxxxx portion of the Minimum Rent is $1,797,00 per month. Its
proportionate share of real estate taxes is $124.90 per month and its portion of
expenses is $139.59 per month (all calculated at 1300/2900 of total). It is
further agreed that: (1) if Landlord has not completed (i) and (ii), above, by
September 2, 1997, Tenant shall not be responsible for the 000 Xxxxxxxxxx Xxxxxx
portion of the rent until January 1, 1998; and (2) if Landlord has not completed
(i) and
-30-
(ii), above, by December 31, 1997, Tenant may cancel this lease by written
notice to Landlord that is received by Landlord on or before January 15, 1998.
LII. CONSTRUCTION AT
000 XXXXXXXXXX XXXXXX
1. Landlord agrees to complete all necessary structural construction to
open the partition which presently separates 000 Xxxxxxxxxx Xxxxxx and 000
Xxxxxxxxxx Xxxxxx. Tenant shall prepare the interior of 000 Xxxxxxxxxx Xxxxxx as
well as the opening between 000 Xxxxxxxxxx Xxxxxx and 000 Xxxxxxxxxx Xxxxxx in a
"vanilla box" fashion such that same is a finished space ready for Tenant's
display fixtures. Landlord and Tenant shall cooperate with each other in
renovating the premises and have their architects and their workmen cooperate
with each other also. The opening of the partition between 000 Xxxxxxxxxx Xxxxxx
and 000 Xxxxxxxxxx Xxxxxx shall be done as set forth in the attached drawing.
2. Landlord shall give Tenant an allowance of $20,000 as Landlord's
contribution to Tenant's moving and renovation expenses. Said allowance shall be
accomplished by a rent reduction of $169.49 per month for one hundred eighteen
(118) months.
3. Tenant recognizes and agrees that Landlord's sole responsibility for the
contemplated structural construction done by Landlord and renovations done by
Tenant shall be to (i) supervise and pay for all structural construction
necessary to open up 000 Xxxxxxxxxx Xxxxxx and 000 Xxxxxxxxxx Xxxxxx as per the
attached plans and (ii) pay Tenant the allowance set forth in number 2, above.
To the extent that said renovations or structural work require construction not
contemplated herein as the result of state, local or federal laws such as,
without limiting the generality thereof, the so-called "handicapped access
laws", Tenant shall be fully and totally responsible for said construction
costs. Tenant recognizes and agrees that Landlord has relied on Tenant's due
diligence in determining what construction would be necessary and required by
law as a result of the contemplated structural and renovation work. Tenant shall
indemnify Landlord and hold Landlord harmless from any expenses over and above
the responsibility and expenses set forth herein for Landlord.
-31-
LIII. BUSINESS DESCRIPTION
A saddlery, selling, repairing and leasing equestrian equipment and
apparel, related leather goods and related sportswear and goods.
IN WITNESS WHEREOF, the said parties have signed and sealed this instrument
this 29 day of May, 1997.
DOVER SADDLERY, INC., X.X. XXXXXX LIMITED PARTNERSHIP
Tenant, By: By its general partner,
The Xxxxxx Corporation, by:
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------------- ----------------------------------------
Xxxxx X. Xxxxxx, president Xxxxxx X. Xxxxxxx, President
/s/ Xxxxx X. Xxxxxx /s/ H. Xxxxxxx Xxxxx
------------------------------------- ----------------------------------------
Xxxxx X. Xxxxxx, Treasurer H. Xxxxxxx Xxxxx, Treasurer
-32-
