Exhibit 10.13
LEASE AGREEMENT
1. THIS LEASE AGREEMENT (hereinafter "Agreement") made and entered into as
of July 17, 2000, between Santa Xxxx Freeholders, a California Limited
Partnership (hereinafter "Landlord") and West Marine Products, Inc., a
California corporation (hereinafter "Tenant").
2. WITNESSETH: The parties hereto agree that this Lease sets forth all
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agreements, covenants and conditions express or implied between the parties, and
except as set forth herein supersedes any prior oral or written agreements
between the parties with respect to the premises hereinafter described. The
following exhibits are attached to this Lease and made a part hereof:
Exhibit "A" - Legal Description of Demised Premises and Entire
Premises Exhibit "B" - Site Plan
Exhibit "C" - Title Exceptions
Exhibit "D" - Non-Disturbance and Attornment Agreement
Exhibit "E" - Subordination, Non-Disturbance, and Attornment Agreement
Exhibit "F"- Tenant's Plans
3. PREMISES: Landlord hereby leases to Tenant and Tenant hereby leases from
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Landlord the approximately nine thousand five hundred eighty-three (9,583)
square foot premises (to be verified by a commencement addendum) located at 0000
00xx Xxxxxx in the City of Santa Xxxx, County of Santa Xxxx, State of
California, and more particularly described as the Demised Premises in Exhibit
"A" and shown outlined on Exhibit "B", together with all improvements now or
hereafter erected thereon and all rights and appurtenances thereunto belonging.
The Demised Premises is part of the Landlord's other property hereinafter
referred to as Entire Premises and described in Exhibit "A" and shown outlined
on Exhibit "B".
3.1 TENANT'S PRO RATA SHARE: Whenever in this Lease reference is made to
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Tenant's pro rata share, same will be calculated as follows:
Size (Floor Area) of Demised Premises 9,583+/-
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% =27.9+/-%
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Size (Floor Area) of All structures in the Entire Premises 34,343+/-
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(to be verified upon completion of all Tenant Improvements)
unless and until either the size (Floor Area) of the Demised Premises or size
(Floor Area) of the structures in the Entire Premises are changed in which event
the above percentage shall be adjusted accordingly.
4. TERM AND COMMENCEMENT: The term of this Lease (hereinafter "Term") shall
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commence on the same date as is provided in the Section of this Lease entitled
RENT for the commencement of
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payment of the monthly rent and shall expire five (5) years after such
commencement date (hereinafter "Commencement Date"), unless sooner terminated or
extended as herein provided. Upon commencement of the Term the parties will
execute a memorandum setting forth the commencement and termination dates.
5. RENEWAL OPTIONS: Landlord grants to Tenant three (3) separate options to
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extend the Term for three (3) separate consecutive additional periods
(hereinafter "Renewal Periods") of five (5) years each on the same terms and
conditions as set forth in this Lease for the Term except that Rent during the
Renewal Options shall be as set forth hereinafter. Provided Tenant is not in
default beyond the applicable cure periods contained herein, each option shall
be deemed automatically exercised by Tenant unless Tenant shall give notice to
Landlord at least six (6) months before the expiration of the Term or Renewal
Period then in effect of Tenant's desire to terminate said Lease, and upon such
automatic renewal, the Renewal Period shall become part of the Term.
6. RENT: Tenant agrees to pay to Landlord during the first year of the Term
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the monthly sum of Eight Thousand Five Hundred Seventy-Six and 79/100 Dollars
($8,576.79)($102,921.42 annually)(unless such rent shall be abated or diminished
as in this Lease elsewhere provided) (hereinafter "Rent") in advance, on the
first day of each calendar month, commencing with the first day of the month
following the earlier of (a) the opening by Tenant of its complete store in the
Demised Premises for business with the public, or (b) ninety (90) days after
Landlord delivers the Demised Premises to Tenant. The Rent for each year during
the Term thereafter shall be the annual Rent for the previous year adjusted by
the Consumer Price Index for All Urban Consumers (San Francisco-Oakland-San Xxxx
Region, 1982-84=100) as Published by the United States Department of Labor,
Bureau of Labor Statistics. Notwithstanding the foregoing, the CPI adjustment
shall in no instance be less than two percent (2%) or greater than five percent
(5%) annually. All payments of Rent shall be made to Landlord, whose Federal
Identification Number is 00-0000000, or to such other person or corporation or
at such other place as shall be designated by Landlord, in writing, delivered to
Tenant at least ten (10) days prior to the next ensuing rent payment date.
Landlord and Tenant agree that the monthly Rent for the first year of the first
Renewal Period, if exercised, shall be the annual Rent for the Term adjusted by
the Consumer Price Index ("CPI") as hereinafter defined. The Rent for each year
during the first Renewal Period thereafter, if exercised, shall be the annual
Rent for the previous year adjusted by the Consumer Price Index for All Urban
Consumers (San Francisco-Oakland-San Xxxx Region, 1982-84=100) as Published by
the United States Department of Labor, Bureau of Labor Statistics.
Notwithstanding the foregoing, the CPI adjustment shall in no instance be less
than two percent (2%) or greater than five percent (5%) annually. The monthly
Rent for the second and third Renewal Periods, if exercised, shall be the fair
market rent for the Premises as may be jointly agreed upon by Landlord and
Tenant.
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6.1 LATE CHARGE: Tenant agrees to pay Landlord a late fee equal to five
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percent (5%) of any monthly Rent installment which is not paid to Landlord
within ten (10) days after the receipt of written notice that said Rent is due
and payable. Said late fee will be due and payable at the same time Tenant pays
that month's late Rent. It is agreed that payments made by check which do not
clear the bank cause additional expenses for book-keeping and clerical services.
Tenant agrees that any such check issued for payments due hereunder which is
returned without payment for any reason whatsoever shall carry a charge of
twenty-five dollars ($25.00) for each time said check is returned, which sum
shall be considered as additional rent hereunder, and shall be paid by Tenant to
Landlord immediately upon notice thereof.
7. LANDLORD'S TITLE: (A) Landlord covenants that Landlord has fee simple
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title to the Entire Premises and the Demised Premises described on Exhibit "A"
hereof and full right and authority to make this Lease; that said Demised
Premises are free and clear of and from all liens, restrictions, leases and
encumbrances (except as set forth in Exhibit "C") and that there are no laws,
ordinances, governmental rules or regulations or title restrictions or zoning or
other matters which will restrict, limit or prevent Tenant's operation of a
marine supply, boating gear and boating apparel store or any department thereof
in the Demised Premises. Landlord warrants and represents to Tenant that no
other tenant, subtenant or other occupant of the Entire Premises possesses any
contractual, leasehold or other exclusive right to sell any goods, products, or
services that would be violated by Tenant's sale of supplies, equipment and/or
apparel for marketed or sold for marine and boating uses. Landlord will
indemnify, defend and hold Tenant harmless from and against all costs, losses,
expenses (including attorneys' fees and costs), or judgments associated with the
violation or asserted violation of any such contractual, leasehold or other
actual or purported exclusive right to the extent same relates to or arises from
Tenant's sale of supplies, equipment and/or apparel for marine and boating uses.
Landlord covenants that so long as Tenant is not in default hereunder, beyond
the applicable cure periods, Tenant shall have quiet and peaceful possession and
enjoyment of the Demised Premises, the Common Facilities portions of Entire
Premises and of all rights and appurtenances thereunto belonging.
(B) Concurrently, with the execution of this Lease, Landlord and
Tenant have executed a Short Form Lease. Immediately after commencement of the
Term, Landlord and Tenant shall execute an Amended Short Form Lease which sets
forth the actual commencement date of this Lease (if different from the
previously recorded Short Form Lease). Either Landlord or Tenant may record the
Short Form Lease and the Amended Short Form Lease and each party agrees to
cooperate with the other to facilitate such recording.
(C) Concurrent with the execution of this Lease, Landlord shall
furnish Tenant duly acknowledged triplicate counterparts of the Non-Disturbance
and Attornment Agreement in the form attached as Exhibit "D" executed by any
mortgagee or holder of any lien prior to this Lease. Wherever
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reference is made to a mortgage or mortgagee in this Lease, such reference shall
be deemed to include a deed of trust or the holder of a deed of trust.
(D) Landlord represents, warrants and agrees and this Lease is made
and entered into upon the express condition that Landlord shall at all times
during the Term of this Lease or any extension or renewal thereof maintain a
general shopping center upon the Entire Premises which shopping center shall
always have as a part thereof a Parking Area as shown on Exhibit "B" annexed
hereto, to furnish parking space without charge to all customers of the Entire
Premises seeking same.
8. SUBORDINATION AND NON-DISTURBANCE: If any future Mortgagee so requests,
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this Lease shall be subject and subordinate to a Mortgage or Deed of Trust
covering the Demised Premises or Entire Premises and to all renewals,
modifications, consolidations, replacements and extensions thereof, provided
Landlord and such Mortgagee execute and deliver to Tenant duly acknowledged
triplicate counterparts of a Subordination, Non-Disturbance and Attornment
Agreement in substantially the form attached as Exhibit "E".
9. POSSESSION: (A) Upon commencement of the Term the covenant of Landlord
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set forth in Subsection (A) of the Section of this Lease entitled
LANDLORD'S TITLE shall be in force except for matters junior to this Lease.
(B) Tenant agrees to deliver to Landlord physical possession of
the Demised Premises upon the termination of the Term in good condition
excepting, however, ordinary wear and tear, damage by fire, or any other
casualty insured against under policies maintained or required to be maintained
by Landlord, or damage from any other cause unless such other cause is
attributable to the willful misconduct of Tenant.
10. ASSIGNMENT AND SUBLETTING: Tenant may not assign this Lease or sublet
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the Demised Premises or any part thereof without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, Tenant may assign this Lease or sublet the Demised Premises without
the consent of Landlord if such assignment or subletting is to facilitate the
sale by Tenant of all or a portion of Tenant's chain of stores, or if such
assignment or subletting is for the continued use of the Demised Premises as a
retailer and/or wholesaler of marine supplies, boating gear and boating apparel.
Landlord agrees that no merger, consolidation, corporate reorganization, or
assignment to an entity in Tenant's control or in the control of Tenant's parent
shall be an assignment so as to require Landlord's consent. Notwithstanding any
subletting or assignment, Tenant shall remain primarily liable for the
performance of all terms and conditions of this Lease.
11. PROTECTIVE COVENANT: In order to induce Tenant to enter into this
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Lease, Landlord agrees for itself, its successors and assigns, its officers,
directors and shareholders (holding more than ten percent (10%) of its stock),
its parent, affiliated and subsidiary corporations and any partner or other
party affiliated with it, that none of the foregoing shall use, suffer, permit
or consent to the use or
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occupancy of any part of the Entire Premises except for the Demised Premises
during the Term of this Lease, as extended and renewed, and that Tenant shall
have the exclusive right, power and authority (1) to conduct the operation of a
retail and/or wholesale business for the sale and/or distribution of supplies,
equipment and apparel for marine and boating uses (hereinafter "Exclusive
Business") in the Entire Premise and (2) to sell mechanical, electrical and
other equipment, supplies, electronics, appliances, hardware, rope, rigging,
boat trailering, navigation, inflatable boats, plumbing and apparel for marine
and boating uses (hereinafter "Exclusive Products") in the Entire Premises.
Landlord agrees (i) not to enter into any new leases, (ii) not to renew or
extend any existing leases, which require Landlord's approval to renew or
extend, (iii) not to consent to any assignment or sublease, which require
Landlord's consent to assign or sublet, (collectively "New Lease") for the
premises in the Entire Premises that permit or contemplate the conduct of any
Exclusive Business or that permit or contemplate the sale of any Exclusive
Products. Landlord also agrees to include a disclosure in any New Lease of the
Exclusivity provisions contained in this Lease, to include a provision in any
New Lease wherein such person or entity agrees not to do any acts in violation
of the exclusivity provisions of this Lease, and to perform such acts as are
necessary or appropriate (including, without limitation, the commencement and
prosecution of legal action) to enforce the exclusivity provisions of this
Lease. In the event of a breach of the exclusivity provisions of this Section,
Landlord agrees that Tenant shall be entitled to obtain (among other relief)
injunctive relief and/or compensatory damages. For the purposes of this Lease,
the term "Affiliate" shall mean and include (without limitation) any
corporation, partnership, limited liability company, or other business entity
which is controlled (directly or indirectly) by Landlord or any officers,
partner or principals of Landlord. This restriction shall not apply to any
business whose principal business is that of a general merchandiser or any other
seller of a broad mix of general merchandise which sells mechanical, electrical
and other equipment, supplies, electronics, appliances, hardware, rope, rigging,
boat trailering, navigation, inflatable boats, plumbing and apparel for marine
and boating uses as an incidental part of its general merchandise business.
With the exception of uses existing at the execution of this Lease,
prohibited uses of the Entire Premises include the following: commercial indoor
amusements, entertainment facilities; flea market or similar business; adult
entertainment, schools of any type; churches; car rentals or sales parking
vehicles offered for lease or sale in the parking areas of Entire Premises;
restaurants; nightclubs; cocktail lounges; taverns; undertaking establishments;
bingo games or off-track betting agencies; post offices or postal facilities
(excluding Mailboxes, Etc, or such similar business); gymnasiums, spas, tanning
facilities, dance studios or health clubs; theaters, either motion picture or
live; bowling alley; skating rink of any type; or any other similar uses which
require excessive use of the Parking Area in terms of number of parking spaces
or length of time of the use of the parking spaces. Landlord covenants and
agrees with Tenant
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that Landlord will not consent to any assignment or subletting of any tenant's
leased space where the use of the space to be made by the assignee or sublessee
would violate this Section 11.
11.1 OUTDOOR DISPLAY: Tenant shall be entitled to maintain a display of
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inflatable boats and motors in the common areas of the Entire Premises at a
location mutually agreeable to Landlord and Tenant and shall be entitled to
install and maintain a "marine-style" flagpole in front of the Demised Premises.
Tenant's display of inflatable boats and motors will be conducted in a manner so
as to minimize interference with vehicular or pedestrian traffic in the common
areas, use of the common areas and other businesses in the Entire Premises and
so as to comply with local ordinances. Tenant's installation of a "marine-style"
flagpole shall be in a location mutually agreeable to Landlord and Tenant and
shall comply with local ordinances. Landlord represents and warrants that no
restrictions exist on the Entire Premises that would restrict Tenant's right to
place the outdoor display and/or flag pole in the common areas.
12. LANDLORD'S REPAIRS: (A) Landlord shall, at its sole cost and expense,
cure any latent defects in or to the Entire Premises during the Lease or renewal
of the Lease.
(B) Landlord shall, at its sole cost and expense, maintain in good
working order and repair throughout the Term: all the exterior portions and
structural elements of the Demised Premises or the building of which the Demised
Premises is a part and the appurtenances thereto and any improvements outside of
the Demised Premises erected by Landlord for Tenant, including but not limited
to the roof, roof structures and supports, foundations and structural supports,
walls (except interior painting), termite and dry rot protection, floors
(excepting floor covering) and mechanical equipment and conduits embedded in the
floors, gutters, downspouts, streets, parking lot, curbs and sidewalks. Landlord
shall also maintain in good order and repair throughout the Term the utility
lines servicing the Demised Premises to the extent not maintained by public
utility companies, and the electrical, sprinkler, plumbing and sewer systems and
other mechanical installations and facilities that are installed in the building
by or for Landlord or that are installed in other parts of Entire Premises by or
for Landlord to service the building. If the Demised Premises has a sprinkler
system, then Landlord shall, at Landlord's cost, cause the sprinkler system
serving the Demised Premises to be constantly monitored to make certain water is
not flowing from the system and the tamper switch on the valve of the sprinkler
system is open. Landlord shall keep Tenant informed of the name, address and
telephone number of the person or company performing the monitoring. Landlord
shall also make and pay for all other repairs to the interior of the Demised
Premises necessitated by (i) Landlord's failure to make any repairs required of
it hereunder, or (ii) defective workmanship or materials in the construction as
it existed immediately prior to the Commencement Date of the Demised Premises or
of any other improvements outside of the Demised Premises erected by Landlord
for Tenant. Landlord specifically agrees to repair any and all damage caused by
settling, expansion or contraction of the building and/or the land underneath
the building,
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parking or common areas. Landlord shall not alter or remodel the exterior of the
Demised Premises without Tenant's prior written consent, and any request for
such consent shall be accompanied by plans and specifications for such work
approved by applicable governmental authorities, together with Landlord's
proposal for removing, storing and replacing Tenant's sign and furnishing
temporary signs for Tenant while the work is being performed. Unless required by
law or due to casualty, Landlord shall refrain from commencing any such
remodeling of the exterior of the Demised Premises during the months of March
through September, Tenant's high sales season.
(C) During the Term and any Renewal Options, Tenant shall repair and
maintain the HVAC using a licensed, qualified contractor and Landlord shall
replace the same when such contractor notifies Landlord in writing that the HVAC
requires replacement for either of the following reasons: (1) the HVAC has come
to the end of its useful life or (2) further repairs cannot be warranted.
Landlord and Tenant agree that the opinion of the contractor shall be binding
upon the parties as to whether or not the HVAC can be repaired or must be
replaced.
(D) Anything in this Lease to the contrary notwithstanding, if any
repairs required to be made by Landlord are necessary to end an emergency and if
Landlord, after Tenant's good faith effort to give either written, personal or
telephonic notice, fails to commence repair as soon as reasonably possible
thereafter, Tenant may make such repairs at Landlord's cost. Landlord agrees to
pay Tenant the cost of such repairs on demand, and Landlord further agrees that
if it fails so to pay to Tenant, Tenant may deduct the amount so expended by it
from Rent or any other payment due or to become due.
(E) If Tenant is deprived of the use of any portion of the Demised
Premises for a period of more than three (3) consecutive days during the making
of any repairs, improvements or alterations by Landlord under any provisions of
this Lease, then so long as Landlord does not proceed diligently to remedy such
condition all Rent and other sums payable hereunder shall xxxxx for such period
as Tenant is deprived of such use. Furthermore, if Landlord fails within three
(3) days following Landlord's receipt of written notice of the need therefor
from Tenant to commence any repairs required to be made by Landlord to stop any
leaks of water into the Demised Premises or if Landlord thereafter fails to
complete any such repairs or replacements with diligence, then, in either event,
the Rent and all other sums due hereunder shall xxxxx until such time as such
repairs and/or replacements are completed.
13. TENANT'S REPAIRS AND ALTERATIONS: Subject to Landlord's obligations
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under the Section of this Lease entitled LANDLORD'S REPAIRS, Tenant shall make
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and pay for all ordinary non-structural repairs to the interior of the Demised
Premises arising from Tenant's operation of business therein not occasioned by
ordinary wear and tear, fire or other casualty. Tenant may make and shall pay
for any alterations and improvements to the Demised Premises as Tenant deems
desirable and Tenant agrees that all such alterations and improvements shall be
made in a good and workmanlike manner and in such fashion as not to diminish the
value of the Demised Premises. If Tenant's construction of any
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alterations, additions and improvements in and to the Demised Premises requires
the penetration of the roof, then Tenant shall use Landlord's roofing contractor
to perform such penetration in accordance with any and all warranties. On
surrendering possession of the Demised Premises to Landlord at the expiration or
sooner termination of this Lease, Tenant shall not be required to restore the
same to the condition existing at the commencement of the Term and Landlord
agrees to accept the Demised Premises with all alterations and improvements made
by Tenant. Except for Tenant's furniture, trade fixtures and equipment (which
shall remain the property of Tenant), all alterations, additions and leasehold
improvements made by Tenant shall be and become Landlord's property upon the
expiration or earlier termination of the Term of this Lease.
13.1 TENANT'S SIGNAGE: Tenant may paint, erect or authorize the
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installation of signs, of the maximum allowable size and in the maximum
allowable quantity, under prevailing law, (which Tenant deems necessary to the
operation of its business) on the exterior of the Demised Premises and the North
(freeway) side of the Building, and inside of the Demised Premises identifying
same as Tenant's store. Tenant may also erect and maintain its sign panels on
the current monument sign at the adjacent street at its expense. Tenant may at
any time or from time to time remove such signs or change them to reflect new
designs. Tenant may use its standard colors and logo in all signage. Landlord
shall not and may not install or maintain, or permit anyone to install,
maintain, remove or modify, any signs on the exterior or roof of the Demised
Premises or within the air space above the Demised Premises during the Term of
this Lease or any extensions or renewals thereof. Landlord shall not alter,
modify, remove, relocate or replace or cause any of the aforementioned to be
done to any of Tenant's signs.
14. COMPLIANCE WITH LAWS: Tenant shall make and pay for non-structural
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improvements and alterations to comply with all laws, rules or regulations of
any governmental authority promulgated after the commencement of the Term
applying to the physical condition of the Demised Premises and arising from
Tenant's conduct of business in the Demised Premises. Landlord agrees to make
and pay for all other repairs, improvements or alterations to the Demised
Premises required by any such authority.
15. TENANT'S FIXTURES: Tenant may install in the Demised Premises such
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fixtures (trade or otherwise) and equipment as Tenant deems desirable and all of
said items shall remain Tenant's property whether or not affixed or attached to
the Demised Premises. Tenant may remove said fixtures and equipment from the
Demised Premises at any time and from time to time during the Term. Landlord
shall not mortgage, pledge or encumber said fixtures, equipment or improvements.
Tenant shall, within thirty (30) days after expiration of the Term, repair any
damage to the Demised Premises caused by Tenant's removal of any such fixtures
or equipment. Tenant shall be allowed access, either underground or aerial as
required by the telecommunications supplier, to all telecommunications lines and
facilities, including the right to install at Tenant's expense on an exterior
wall or roof area a digital communications reflector no larger than two meters
in diameter, complete with attached cable to Demised Premises.
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16. UTILITIES: Landlord shall provide to the Demised Premises throughout
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the Term such sanitary and storm sewer facilities and such utilities (including,
without limitation, water, electric power and gas) as the Tenant may require.
Tenant agrees to pay for all such utilities for which the Landlord provides
separate metering that are consumed by Tenant in the Demised Premises, during
the Term. In no event shall Landlord be liable for an interruption or failure in
the supply of any such utilities to the Demised Premises unless such
interruption or failure is the direct result of Landlord's negligence.
16.1 TRASH REMOVAL: Tenant may store all Tenant's trash in no fewer than
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two dumpsters (one for waste and another, at Tenant's option, for recycling) or
other covered trash receptacles customary in shopping centers. Tenant's trash
receptacles shall be located near Tenant's loading areas and Tenant shall have
Tenant's trash removed from the Entire Premises regularly, all at Tenant's cost.
17. PUBLIC LIABILITY INSURANCE: (A) Commencing on the date Tenant takes
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possession and continuing throughout the Term, or any extensions thereof, Tenant
shall maintain insurance against public liability for injury to person
(including death) or damage to property occurring within the building and the
Demised Premises arising out of the use and occupancy thereof by Tenant. Such
insurance shall be with minimum single limits of $2,000,000.00 for personal
injury, death or property damage and Landlord and its designated property
manager shall be named as additional insured under the policy. Upon written
request therefor, Tenant shall deliver to Landlord a certificate of such
insurance naming Landlord as an additional insured and an agreement by the
insurer that said policy may not be canceled without ten (10) days prior written
notice delivered to Landlord.
(B) Commencing on the date Tenant takes possession and continuing
throughout the Term or any extensions thereof, Landlord shall maintain insurance
against public liability for injury to person (including death) or damage to
property arising out of the acts or omissions of Landlord or arising out of the
use of Common Facilities as defined in this Lease by Tenant or its licensees,
employees, invitees, or customers. Such insurance shall be with minimum single
limits of $2,000,000.00 for personal injury, death or property damage and Tenant
shall be named as additional insured under the policy. Upon written request
therefor, Landlord shall deliver to Tenant a certificate of such insurance
naming Tenant as an additional insured and an agreement by the insurer that said
policy of insurance may not be canceled without ten (10) days prior written
notice delivered to Tenant.
17.1 INDEMNITY: (A) Tenant hereby agrees to hold and save Landlord
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harmless, and to protect and indemnify Landlord from and against any and all
claims, punitive damages, injuries, costs, losses, demands, debts, liens
liabilities, causes of action, suits, interest, and expenses (including
attorney's fees incurred in defense and enforcing this indemnity) of any kind
whatsoever paid, incurred or suffered by, or asserted against Tenant, arising
out of injury to person or property, or both, including without limitation,
injury to the person or property of Tenant, its agents officers, employees, or
licensees arising out of the condition of the Demised Premises or any portion
thereof over which Tenant has control and a duty to
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repair and maintain under the terms of this Lease: provided, however, that this
covenant shall not apply to the injury to person or property resulting from acts
of Landlord, its agents or employees while in or on the Demised Premises.
(B) Landlord hereby agrees to hold and save Tenant harmless, and to
protect and indemnify Tenant from and against any and all claims, punitive
damages, injuries, costs, losses, demands, debts, liens liabilities, causes of
action, suits, interest, and expenses (including attorney's fees incurred in
defense and enforcing this indemnity) of any kind whatsoever paid, incurred or
suffered by, or asserted against Landlord, arising out of injury to person or
property, or both, including without limitation, injury to the person or
property of Landlord, its agents, officers, employees, or licensees arising out
of the condition of the Entire Premises or any portion thereof over which
Landlord has control and a duty to repair and maintain under the terms of this
Lease: provided, however, that this covenant shall not apply to the injury to
person or property resulting from acts of Tenant, its agents or employees while
in or on the Entire Premises.
18. DAMAGE BY CASUALTY: (A) If the Demised Premises is damaged or destroyed
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by fire, the elements, subsidence of sublateral or subjacent support or other
casualty, Landlord shall within thirty (30) days after receipt of diligently
pursued permits begin repairs and shall restore the Demised Premises or any such
other store to its condition just prior to the damage, within ninety (90) days
after receipt of such permits, or Tenant may cancel this Lease.
(B) If Tenant is not actually open for business during all or any
part of the period ("Restoration Period") from the date of such damage or
destruction as aforesaid until the date the Demised Premises is redelivered to
Tenant in accordance with the terms of this Lease, all Rent or other sums
payable hereunder shall xxxxx for such period as Tenant is not open for business
without causing default by Tenant. If Tenant is open for business during the
Restoration Period, the Rent and other sums payable hereunder shall xxxxx in
proportion to the usable space; provided, however, that if Landlord does not
proceed diligently with restoration of the Demised Premises, all Rent and other
sums payable hereunder shall xxxxx without causing default by Tenant.
(C) If any other building erected on Entire Premises is damaged or
destroyed by fire, the elements, subsidence of sublateral or subjacent support
or other casualty, Landlord shall within ninety (90) days promptly and
diligently either (i) repair and restore such other building to its condition
just prior to the damage or (ii) level such other building to the ground and
clear up all debris therefrom or (iii) put such other buildings in a clean and
safe condition.
(D) Landlord agrees to keep in effect on the Demised Premises and
on all other buildings erected on Entire Premises and to provide Tenant upon
written request therefor with proof of fire insurance with extended coverage
endorsement in an amount not less than the full replacement cost of the
buildings and improvements thereon.
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(E) If any such damage or destruction to the Demised Premises shall
occur within the last two (2) years of the Term, or of any Renewal Period,
affecting more than fifty percent (50%) of the replacement cost of the Demised
Premises, either party may terminate this Lease by notice to the other party
within thirty (30) days after the date of such damage or destruction. If
Landlord shall terminate this Lease as above provided, Tenant may, within thirty
(30) days after receipt of notice thereof, extend the Term or Renewal Period, if
a Renewal Period is available under this Lease to exercise, to run for five (5)
years from the date of restoration and redelivery of the Demised Premises to
Tenant, whereupon Landlord's termination shall be void and Landlord shall
restore the Demised Premises in accordance with the terms of this Section.
Tenant shall not have the right to void a termination by Landlord during the
last Renewal Period. If this Lease is terminated as provided in this Section,
both parties shall be relieved of any further liabilities hereunder except for
obligations accrued at the date of such damage or destruction and any sums
prepaid by Tenant shall be apportioned and appropriately refunded to Tenant.
18.1 FIRE INSURANCE WITH EXTENDED COVERAGE: Tenant shall within thirty (30)
-------------------------------------
days after receipt of an annual billing from Landlord, supported by Landlord's
invoices, reimburse Landlord, as Additional Rent, for Tenant's pro rata share of
the cost of fire insurance with extended coverage premiums.
19. WAIVER OF SUBROGATION AND HOLD HARMLESS: Landlord and Tenant shall
---------------------------------------
obtain from their respective insurers endorsements whereby the insurers agree to
waive any right of subrogation against Landlord or Tenant, as the case may be,
in connection with liability, fire or other risks or casualties covered by said
insurance. Landlord agrees that it shall make no claim nor authorize any claim
to be made against Tenant, its employees, servants or agents in connection with
or as a result of fire, explosion or other casualty damaging the Demised
Premises or other buildings in Entire Premises. Tenant agrees that it shall make
no claim nor authorize any claim to be made against Landlord, its employees,
servants or agents in connection with or as a result of fire, explosion, or
other casualty damaging the contents or fixtures installed in the Demised
Premises, excepting, however, such claims as may be permitted pursuant to the
terms of the Section of this Lease entitled LANDLORD'S REPAIRS hereof by reason
------------------
of Landlord's failure to make repairs to the Demised Premises.
20. EMINENT DOMAIN: (A) If (i) all or part of the Demised Premises or any
--------------
rights in the Demised Premises, or (ii) so much of any rights in Entire Premises
shall be taken or appropriated under any right of eminent domain or under any
other legal right whereby the taking authority is obligated to compensate
Landlord therefor so that there does not remain (a) parking area as shown on
plot plan Exhibit "B" excluding the "Permitted Taking" area shown as outlined on
Exhibit "B" or up to a maximum of eighteen (18) parking spaces located elsewhere
on the Entire Premises, or (b) premises suitable in the opinion of Tenant for
the operation of its business, or (c) direct access at grade level to all
abutting streets, then Tenant may terminate and cancel this Lease as of the date
on which the condemning authority takes
11
physical possession upon giving to Landlord written notice of such election.
Landlord agrees immediately within ten (10) days after any notice of intended or
actual taking or appropriation to give Tenant written notice thereof, providing
to Tenant full details of such taking or appropriation including without
limitation copies of all condemnation plans or surveys submitted by the
condemning authority, a statement of the nature of the project to be conducted
by the condemning authority, and such other information as might be necessary to
enable Tenant to determine its future course of conduct.
(B) If this Lease shall be terminated and canceled as a result of any
taking or appropriation, Tenant shall be released from any further liability and
the Rent and other sums for the last month of Tenant's occupancy shall be pro
rated and Landlord shall refund to Tenant any sums paid in advance. If at the
time of such taking or appropriation Tenant shall not have fully amortized
expenditures which it might have made on account of any improvements or
alterations made or erected on the Demised Premises, the amount thereof shall be
payable to Tenant out of any award, subject and subordinate to the right of any
Mortgagee permitted under the terms of the Section of this Lease entitled
SUBORDINATION AND NON-DISTURBANCE.
---------------------------------
(C) Tenant may file such claims as are permitted by law for the loss
of its leasehold interest, business dislocation damages, moving expense, or
other damages caused by such taking or appropriation. Tenant's right to receive
compensation or damages for its fixtures or its personal property shall not be
affected in any manner by this Lease.
(D) If this Lease is not terminated and canceled because of any such
taking or appropriation, Landlord shall within thirty (30) days after receipt
of diligently pursued permits begin to restore the Demised Premises to a
condition as nearly comparable as practicable to the condition existing just
before such taking or appropriation. Restoration shall be completed within
ninety (90) days after receipt of such permits. If because of such taking Tenant
is not actually open for business during all or any part of the period from the
date of such taking or appropriation until the date the Demised Premises is
redelivered to Tenant in accordance with the terms of this Lease (hereinafter
"Rebuilding Period"), all Rent or other sums payable hereunder shall xxxxx for
such period as Tenant is not open for business. If Tenant is actually open for
business during the Rebuilding Period, the Rent shall xxxxx proportionately for
the unusable area; provided, however, that if Landlord does not proceed
diligently with restoration of the Demised Premises, all Rent and other sums
payable hereunder shall xxxxx. After restoration of the Demised Premises, the
Rent shall be reduced in the ratio that the total floor area of the Demised
Premises taken or appropriated bears to the total floor area of the Demised
Premises before such taking or appropriation.
21. PERMITS AND LICENSES: Landlord agrees upon request of Tenant to execute
--------------------
or join in the execution of any application for permits and licenses which may
be necessary in connection with any construction, alterations, improvements
and/or repairs permitted under this Lease.
12
22. COMMON FACILITIES: (A) All those portions of Entire Premises shown on
-----------------
Exhibit "B" which are not presently occupied by buildings shall be Common
Facilities for the non-exclusive joint use of all tenants of Entire Premises,
their employees, customers and invitees and Landlord hereby grants to Tenant,
its employees, customers and invitees, the right to use, in common with all
other tenants of Entire Premises, all of said Common Facilities (except that
Tenant's loading area shall be reserved for Tenant's exclusive use) and any
enlargement thereof for ingress and egress to and from the Demised Premises and
the public streets and highways shown on Exhibit "B" and for the parking of
motor vehicles in the areas designated as "Parking Area". Subject to
reimbursement in Section 22.1, Landlord agrees to maintain throughout the Term
all Common Facilities in good repair, clean and clear of snow, ice, rubbish and
debris, properly drained, clearly striped and adequately lighted at all times
when the Demised Premises is open for business and for one-half hour after
closing thereof.
(B) Throughout the Term, the Common Facilities shall contain a
Parking Area as shown on Exhibit "B" (excluding the "Permitted Taking" area
shown as outlined on Exhibit "B" or up to a maximum of eighteen (18) parking
spaces located elsewhere on the Entire Premises which may be taken by eminent
domain without triggering the abatement provision set forth hereinafter), and
Landlord shall not use or permit the Common Facilities to be used for carnivals
or other businesses, temporarily or permanently. If at any time during the Term,
such Parking Area shall be reduced below the minimum area above set forth by
reason of taking or appropriation under any power of eminent domain and if
Tenant does not terminate this Lease as permitted in the Section of this Lease
entitled EMINENT DOMAIN, the Rent payable pursuant to the Section of this Lease
--------------
entitled RENT of this Lease shall xxxxx in the same proportion that the Parking
----
Area so taken bears to the minimum Parking Area above set forth. If, at any time
during the Term, Landlord by its acts or omissions reduces or permits a
reduction of the Parking Area or Common Facilities below the above minimum or if
the Landlord changes the location or arrangement of the Parking Area, the Rent
payable pursuant to the terms of the Section of this Lease entitled RENT of this
Lease and all other charges payable under the terms of this Lease shall xxxxx.
22.1 COMMON FACILITIES MAINTENANCE: Tenant agrees to pay throughout the
-----------------------------
Term, as Additional Rent, its pro rata share of common facilities maintenance
costs ("Common Facilities Maintenance Charges"). Common Facilities Maintenance
Charges shall include only the following items: lighting of the Common
Facilities and parking areas, patching of potholes in the Parking Area,
sweeping, maintenance of landscaping existing as of the lease date, snow removal
and striping of the Parking Area, touch-up painting, sealing, security for the
common area, and repairs of the parking lights, light standards, entrance and
exit signs. A management and administrative fee of not greater than ten (10)
percent of the Common Facilities Maintenance Charges shall be paid in addition
to the Common Facilities Maintenance Charges.
13
Effective as of the Commencement Date, Tenant shall pay to Landlord the
Common Facilities Maintenance Charges on the first day of each month without any
prior demand therefor from Landlord, the monthly installment of Common
Facilities Maintenance Charges specified by Landlord, as such amount may be
adjusted from time to time. Tenant's pro rata share of such expenses shall be
estimated for each calendar year, and Landlord shall submit to Tenant a
statement of the estimated amount for each calendar year. Tenant shall pay the
Common Facilities Maintenance Charges on the first day of each month until
notified by Landlord of a change in the estimated Common Facilities Maintenance
Charges and Tenant shall thereafter pay the adjusted amount.
Within sixty (60) days following the end of each calendar year, Landlord
shall furnish Tenant a statement together with invoices covering such calendar
year just expired, showing the Common Facilities Maintenance Charges and the
amount of Tenant's pro rata share of such Common Facilities Maintenance Charges
for such calendar year and the payments made by Tenant with respect to said
calendar year as set forth above. If Tenant's pro rata share of such Common
Facilities Maintenance Charges is greater than Tenant's actual Common Facilities
Maintenance Charge payments, Tenant shall pay Landlord the difference as
Additional rent within thirty (30) days after receipt of such statement, and
thereafter, pay the adjusted amount as provided above until further adjusted by
Landlord. If Tenant's pro rata share of such Common Facilities Maintenance
Charges is less than Tenant's actual Common Facilities Maintenance Charges
payments, Landlord shall credit any overpayment toward Tenant's next payment of
such Common Facilities Maintenance Charges, unless such adjustment is for the
last year of the Term, in which case Landlord shall reimburse such overpayment
to Tenant within thirty (30) days after request therefor.
23. USE OF PREMISES BEFORE TERM COMMENCES: Tenant may enter the Demised
-------------------------------------
Premises at any time prior to the commencement of the Term to construct Tenant's
improvements and install therein fixtures and equipment and receive and store
therein merchandise and other property at Tenant's own risk, free from Rent and
Additional Rent, provided that such entry does not interfere unreasonably with
the work being done in or to the building by Landlord. Such entry into the
Demised Premises shall not be construed as an acceptance of delivery thereof
under the terms and provisions of this Lease.
24. TRANSFER OF TITLE: If there shall be any change in or transfer of title
-----------------
of Landlord in or to the Demised Premises or any part thereof, Tenant may
withhold payments thereafter accruing until notified in writing by Landlord of
such change in title and until given satisfactory proof, whereupon Tenant shall
submit such payment to the party properly entitled to receive it.
25. TENANT'S DEFAULT IN RENT: If Tenant shall default in payment of Rent
------------------------
herein reserved, when due, Landlord shall forward written notice of such default
to Tenant, by certified mail, return receipt
14
requested, and the failure of Tenant to cure such default within fifteen (15)
days after the date of receipt of such notice shall at the option of the
Landlord cause the termination of this Lease.
26. OTHER DEFAULTS BY TENANT: If Tenant shall default in the performance of
------------------------
any of the terms or provisions of this Lease other than the payment of Rent, and
if Landlord shall give to the Tenant written notice by certified mail, return
receipt requested, of such default and if Tenant shall fail to cure such default
within thirty (30) days after receipt of such notice, or if the default is of
such a character as to require more than thirty (30) days to cure, then, if
Tenant shall fail to use reasonable diligence in curing such default Landlord
may cure such default for the account of and at the cost and expense of Tenant
and the reasonable sums so expended by Landlord shall be deemed to be Rent and
on demand shall be paid by Tenant on the day when Rent shall next become due and
payable. In no event, however, shall any default under the terms of this Section
be the basis of a forfeiture of this Lease or otherwise result in the eviction
of the Tenant or the termination of this Lease.
27. RESPONSIBILITY OF LANDLORD: If Landlord fails to pay any installment
--------------------------
of taxes or assessments or any interest, principal, costs or other charges upon
any mortgage or mortgages or other liens and encumbrances affecting the Demised
Premises or Entire Premises when any of the same become due, or if Landlord
fails to make any repairs or do or complete any work required of it under any of
the provisions of this Lease, or if Landlord fails to perform any covenant or
agreement in this Lease contained on the part of Landlord to be performed,
Tenant, after the continuance of any such failure or default for thirty (30)
days after written notice thereof is given by Tenant to Landlord, may elect to
pay said taxes, assessments, interest, principal, costs and other charges or
cure such defaults on behalf of and at the expense of Landlord and do all
necessary work and make all necessary payments in connection therewith. This
shall include, without limitation, the payment of any counsel fees, costs and
charges of or in connection with any legal or equitable action which may be
brought and Tenant may further take such other proceedings at law or in equity
as Tenant deems necessary, notwithstanding any other remedy herein provided. In
the event of such election by Tenant, Landlord agrees to pay to Tenant any
amount so paid by Tenant, and agrees that Tenant may withhold any and all rental
payments and other sums due and becoming due after the expiration of the
aforesaid notice period to the Landlord pursuant to the provisions of this Lease
and may apply the same to the payment of such indebtedness of the Landlord until
such indebtedness is fully paid. In addition to the foregoing, Tenant may
proceed in equity to enjoin any breach by Landlord or by any other party of any
provision of this Lease. Nothing herein contained shall preclude the Tenant from
proceeding to collect the amount so paid by it, as aforesaid, without waiting
for rental offsets to accrue. If at the expiration of the Term of this Lease
there shall be any sums owing by Landlord to Tenant, this Lease may at the
election of Tenant be extended and continued in full force and effect until the
last day of the month following the date when the indebtedness of Landlord to
Tenant shall have been fully paid. If any alleged default is of such a nature
15
that it cannot be completely remedied or cured within the thirty (30) day period
above provided, then notwithstanding the provisions of this Section to the
contrary, Tenant shall not have a right to enforce any of the remedies herein
set forth if Landlord shall commence curing such default within such thirty (30)
day period and shall proceed with reasonable diligence in good faith to complete
the curing thereof.
28. HAZARDOUS SUBSTANCES: (A) As used in this Lease, "HAZARDOUS SUBSTANCES"
--------------------
shall be defined as any substance that is biologically or chemically active or
is a hazardous, toxic, or dangerous waste, substance (including, but not limited
to, petroleum derivative substances), or material defined as such in (or for
purposes of) any state, federal or local environmental laws, regulations,
decrees or ordinances or in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, or in any of the so called state or
local "Super Fund", "Super Lien" or "Cleanup Lien" laws or any other federal,
state or local regulation, order or decree relating to or imposing liability or
standards of conduct concerning any such substances or materials or any
amendments or successor statutes thereto.
(B) Tenant represents and warrants that, except for items commonly
sold or utilized in marine and boating supply and accessories stores, no
HAZARDOUS SUBSTANCES will be stored on the Demised Premises and that during the
Term of this Lease or any Renewal Period thereof, no HAZARDOUS SUBSTANCES will
be discharged on the Entire Premises by Tenant or anyone under its direction or
control. Tenant agrees that such representations and warranties shall survive
any termination of this Lease and Tenant agrees to indemnify and hold harmless
the Landlord from any and all costs, expenses, claims and damages, including but
not limited to attorneys' fees and costs of remediation, arising from Tenant's
breach of any of the foregoing representations and warranties.
(C) Landlord shall indemnify and hold Tenant harmless from and
against all costs, expenses, and damages, including but not limited to
attorneys' fees and costs of remediation, arising out of any claim for loss or
damage to property, injuries to or death of persons, any contamination of or
adverse effects on the environment or any violation of any environmental or
other law, caused by or resulting from any hazardous waste or HAZARDOUS
SUBSTANCE or any leakage or contamination from underground tanks on or under the
Entire Premises and not resulting from Tenant's operations in the Demised
Premises. This indemnification precedes, is concurrent with, and survives this
Lease.
(D) Furthermore, Landlord represents and warrants to Tenant that
Landlord has no actual or constructive knowledge (1) of the presence of any
HAZARDOUS SUBSTANCES on, under or within the Entire Premises; (2) of any spills,
releases, discharges or disposals of HAZARDOUS SUBSTANCES that have occurred or
are presently occurring on or onto the Entire Premises; (3) of any spills or
disposal of HAZARDOUS SUBSTANCES that have occurred or are occurring adjacent to
the Entire Premises as a result of any construction on or operation and use of
the Entire Premises or adjacent property; (4) of any failure to comply with all
applicable local, state and federal environmental laws, regulations, ordinances,
16
and administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and disposal of any HAZARDOUS
SUBSTANCES on the Entire Premises or adjacent property; (5) the presence of any
underground storage tanks now or in the past on the Entire Premises.
29. NOTICE: All notices or demands required or permitted to be given or
------
served pursuant to this Lease shall be deemed to have been given or served only
if in writing, postage pre-paid and shall be sent by U.S. Certified Mail with
Return Receipt Requested or by nationally recognized overnight courier to:
LANDLORD: TENANT:
--------- -------
Santa Xxxx Freeholders West Marine Products, Inc.
c/o Xxxxxxxx X. Xxxxxx Attn: Real Estate Department
000 Xxxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
(000) 000-0000 Fax
Such addresses may be changed from time to time by either party by serving
notice as above provided.
30. REAL ESTATE TAXES: Landlord shall pay all Real Estate Taxes
-----------------
(hereinafter "Taxes") upon the Entire Premises and shall within sixty (60) days
thereafter provide Tenant with a copy of the paid Tax receipt. Tenant shall
reimburse Landlord, as Additional Rent, within thirty (30) days of Landlord's
request therefor, for Tenant's pro rata share of said Taxes. Landlord shall
submit to Tenant, along with the request for reimbursement, a copy of the Tax
xxxx and a computation of Tenant's pro rata share of said Taxes for which
Landlord is seeking reimbursement. In addition to any other limitations
contained on this Lease, Tenant's pro rata share of Taxes levied or assessed
against the Demised Premises and/or the Entire Premises shall expressly exclude
(i) any federal, state or local documentary transfer or similar taxes imposed
and assessed in connection with the execution, delivery and/or recordation of
any deed or conveyance of title to the Shopping Center and/or the Premises, (ii)
any late or delinquency fees, penalties or costs associated with the late
payment of such real property taxes and/or assessments, and (iii) any special
assessments levied against the Shopping Center of the Premises relating to the
initial development of the Shopping Center.
31. USE: Tenant may use the Demised Premises as a Marine Supply, Boating
---
Gear and Boating Apparel store to conduct the operation of a retail and/or
wholesale business for the sale and/or distribution of supplies, equipment and
apparel for marine and boating uses or for any other lawful purpose for which
Landlord provides it's written consent, such consent not to be unreasonably
withheld. Landlord's consent shall be deemed to not be unreasonably withheld
where (1) Tenant's proposed use would violate an exclusive granted in the Entire
Premises, or (2) Tenant's proposed use would duplicate an existing use in the
Entire Premises. Tenant shall indemnify and hold Landlord harmless of and from
all
17
fines or penalties imposed by law arising by reason of the violation by Tenant
of any laws, rules, ordinances or regulations relating to the conduct of
business in the Demised Premises issued by any governmental authority having
jurisdiction over the Demised Premises.
Tenant shall not have any obligation to continuously use or occupy the
Demised Premises or conduct business therein during the Term and Tenant shall
have the right (at any time and from time to time) to discontinue the use and
occupancy of the Demised Premises or cease the conduct of business therein;
provided, however, that neither the cessation of Tenant's use or occupancy of
the Demised Premises nor the discontinuation of the conduct of business therein
shall relieve or discharge Tenant from its obligation to pay Rent, Additional
Rent or other amounts payable by Tenant and perform the obligations required by
this Lease in the time and manner set forth herein.
32. TERMINATION OF OLD LEASE: By Lease dated June 6, 1995 ("Old Lease"),
------------------------
Tenant is leasing from Landlord six thousand fifty-eight (6,058) square feet of
the Demised Premises under this Lease. Effective as of the date upon which Rent
commences under this Lease, Landlord and Tenant do hereby terminate the Old
Lease and the terms, covenants, conditions, and obligations of this Lease shall
thereafter apply.
33. LANDLORD'S ALTERATIONS: (A) Upon the full execution of this Lease,
----------------------
Landlord shall proceed with diligence in making the following alterations to the
Demised Premises in accordance with Exhibit "F" attached hereto and made a part
hereof:
Construct a demising wall to deliver to Tenant an expanded Demised Premises
with frontage measuring approximately sixty-five Feet (65') and depth measuring
approximately one hundred forty-seven feet (147').
(B) All of said alterations shall be done by Landlord at its own cost and
expense in a good and workmanlike manner using first quality materials in full
compliance with all laws, rules and regulations of all governmental authorities
having jurisdiction thereof, and shall be completed at a time mutually agreed
upon by Landlord and Tenant.
(C) The obligations of Landlord contained in this Section shall be a
personal non-transferable obligation of the Landlord named in this Lease and
shall continue notwithstanding any sale or other transfer of title to the
Demised Premises or Entire Premises prior to completion of the Demised Premises.
34. DELIVERY: Landlord shall deliver vacant broom clean possession of the
--------
additional premises when Landlord has completed the alterations required by the
Section of this Lease entitled "LANDLORD'S ALTERATIONS".
----------------------
35. INTENTIONALLY OMITTED
---------------------
36. GENERAL PROVISION:
-----------------
18
(A) The captions and numbered Sections of this Lease are inserted for
convenience only and are not a part of this Lease and do not in any way limit or
amplify the terms and provisions of this Lease.
(B) If more than one person or corporation is named as Landlord in
this Lease and executed the same as Landlord, then the word "Landlord" wherever
used in this Lease shall refer to all such persons or corporations, and the
liability of such persons or corporations for compliance with or for the
performance of all the terms, covenants and provisions of this Lease shall be
joint and several.
(C) All the provisions of this Lease shall be construed as covenants
and agreements as though the words importing such covenants and agreements were
used in each separate Section hereof, and all the provisions hereof shall bind
and inure to the benefit of the parties hereto, their respective heirs, legal
representatives, successors and assigns.
(D) No amendment or modification of this Lease shall be effective
unless in writing and executed by duly authorized representatives of both
Landlord and Tenant.
(E) The Sections of this Lease are intended to be severable. If any
Section or provision of this Lease shall be held to be unenforceable by any
court of competent jurisdiction, this Lease shall be construed as though such
Section had not been included in it. If any Section or provision of this Lease
shall be subject to two constructions, one of which would render such Section or
provision invalid, then such Section or provision shall be given that
construction which would render it valid.
(F) Upon request of Tenant, Landlord shall promptly complete an IRS
Form W-9 so that Tenant may report the payments made by Tenant to Landlord under
this Lease as required by applicable governmental authorities.
(G) This Lease shall not be strictly construed against Tenant as the
draft or writing of Tenant or because of any presumption arising out of terms
favorable to Tenant.
(H) In the event of any litigation between Tenant and Landlord to
enforce any provision of this Lease or any right of either party hereto, the
unsuccessful party to such litigation shall pay the successful party all costs
and expense, including reasonable attorneys' fees, incurred therein. Moreover,
if either party hereto without fault is made a party to any litigation
instituted by or against any other party to this Lease, such other party shall
indemnify Landlord or Tenant, as the case may be, against and save it harmless
from all costs and expenses, including reasonable attorneys' fees, incurred by
it in connection therewith.
37. NO OPTION: The submission of this Lease for examination does not
---------
constitute a reservation of or option for the Demised Premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant.
38. ESTOPPEL AGREEMENT: Tenant shall, from time to time, upon at least ten
------------------
(10) business days prior notice by Landlord, execute, acknowledge and deliver to
a prospective purchaser or mortgagee, a statement executed by both Landlord and
Tenant certifying that this Lease is
19
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 Rent and Additional Rent have
been paid, and stating whether or not there exists any defaults by Landlord or
Tenant under this Lease, and, if so, specifying each such default.
39. DELAYS: In the event the scheduled performance of any duty of
------
obligation required to be performed by Tenant under this Lease or in the event
the scheduled date for the exercise of any right or option contained herein
shall fall on a Saturday, Sunday, or legal holiday, such performance or exercise
by Tenant or Landlord shall occur on the next business day.
40. MECHANICS LIENS: If any mechanic's or other liens shall at any time be
---------------
filed against the Demised Premises by reason of work, labor, services or
materials performed or furnished to Tenant, Tenant shall cause the same to be
discharged of record or bonded within thirty (30) days of Tenant's notice of
such lien. If Tenant shall fail to cause such lien to be so discharged or bonded
after being notified of the filing thereof, then, Landlord may bond or discharge
the same by paying the amount claimed to be due, and the amount so paid by
Landlord, including reasonable attorneys' fees incurred by Landlord either in
defending against such lien or in procuring the bonding or discharge of such
lien, shall be due and payable by Tenant to Landlord as Additional Rent.
41. RIGHT OF ENTRY: Upon at least twenty-four hours prior written notice,
--------------
Landlord or its agents shall have the right to enter the Demised Premises to
make repairs to the Demised Premises as required of Landlord under this Lease
without any liability to Tenant for trespass. Landlord shall be required to
cooperate with Tenant to minimize any disturbance to Tenant's conduct of
business in the Demised Premises caused by such entry.
42. HOLDING OVER: If Tenant shall be in possession of the Demised Premises
------------
after the expiration of the Lease Term, in the absence of any agreement
extending the Term, the tenancy under this Lease shall become one from month to
month, terminable by either party on thirty (30) days' prior notice, and shall
be subject to all of the terms and conditions of this Lease as though the Term
had been extended from month to month, except that the monthly Rent payable
hereunder for each month during said holdover period shall be equal to one
hundred ten percent of the monthly Rent payable during the last month of the
Term.
43. SUCCESSORS: All rights and liabilities herein given to, or imposed
----------
upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and assigns of said
parties; and if there shall be more than one tenant, they shall be bound jointly
and severally the terms, covenants and agreements herein. No rights, however,
shall inure to the benefit of any assignee of Tenant unless the assignment to
such assignee has been approved by Landlord in writing.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
LANDLORD: TENANT:
Santa Xxxx Freeholders, a West Marine Products, Inc., a California
California Limited Partnership corporation
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Xxxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
General Partner AVP of Real Estate
By: By: /s/ Xxxxxx Xxxxxx
------------------------------ -------------------------------------
Xxxxxx Xxxxxx
Title: Director of Real Estate
---------------------------
21
EXHIBIT "A"
Demised Premises:
The storeroom shown outlined as "Demised Premises", Exhibit "B", annexed
hereto having a frontage of sixty-five feet (65') and a depth of one hundred
forty-seven feet (147'), and an overall area of nine thousand five hundred
eighty-three (9,583) square feet, all being a part of Entire Premises
hereinafter described.
Entire Premises:
[Landlord to provide Legal Description for Entire Premises]
EXHIBIT "B"
Page 1 of 1
Site Plan
EXHIBIT "C"
Page 1 of 1
Title Exceptions
Mortgages:
Landlord covenants that prior to commencement of the Term of this Lease,
the mortgages described below shall either be discharged of record or the
mortgagees shall execute an agreement in accordance with Section 7(c) of this
Lease.
"NONE"
Landlord warrants that there are no easements, restrictions, or other
matters that will affect or limit the use of the Demised Premises or Common
Facilities by Tenant in accordance with the terms of this Lease, except as
follows:
"NONE"
EXHIBIT "D"
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
----------------------------------------
THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT (hereinafter "Agreement") is
made by and between _________________________ (hereinafter called "Lender"), the
holder of a promissory note secured by a Deed of Trust or Mortgage recorded
_________________________ in _________________, _________________ in the
hereinafter described property, and West Marine Products, Inc., a California
corporation, (hereinafter called "Tenant"), which is the Tenant under a Lease
(the "Lease") from _________________________, a _______________, (hereinafter
called "Landlord"), dated ___________________, pertaining to certain store
premises and real property more fully described in Exhibit "A" attached hereto
(hereinafter called the "premises").
1. Tenant's agreement is upon and subject to the express conditions
that:
a. So long as Tenant continues to pay the Rent as
provided for in the Lease and otherwise complies with all the terms and
provisions thereof, Lender shall not disturb the rights of possession
of Tenant in and to the premises as set forth in the Lease,
notwithstanding any foreclosure or proceedings in lieu thereof
affecting the premises and whether or not Tenant is made a party
thereto; and
b. If all or any part of the premises is damaged or
destroyed by casualty or by the exercise of any right of eminent
domain, the proceeds of any insurance or condemnation award relating
thereto shall be made available for the purpose of repair or
restoration thereof as provided for in the Lease; and
c. Upon passing of title to the premises or any part
thereof to the Lender or to any other party in any foreclosure or
proceedings in lieu thereof, the party acquiring such title shall
thereupon during the period of such party's ownership, by virtue of
such acquisition of title and continued ownership and without the
execution of any further instruments or documents be deemed to be the
Landlord for all purposes of the Lease during the period of such
ownership and be deemed to have assumed the full and complete
performance of all the obligations of Landlord as set forth in the
Lease which accrue during the period of such ownership; and
d. If Lender shall take possession to the premises,
without acquiring title thereto, but in such a manner as to be entitled
to receive rents therefrom, Lender shall, in addition, be deemed to
have assumed all the obligations of Landlord set forth in the Lease
accruing during such period of possession.
2. Lender, by its acceptance of this Agreement, agrees that in the
event Lender or any other party takes possession of the premises as
note-holder-in-possession, by foreclosure of the Deed of Trust or Mortgage, or
by acquisition of title in lieu of foreclosure, Lender or such other party shall
not affect or disturb Tenant's right to possession of the premises or Tenant's
other rights under the Lease in the exercise of
Lender's or such other party's rights so long as Tenant is not then in default
under any of the terms, covenants, or conditions of the Lease beyond the
curative periods applicable thereto as provided in the Lease. In the event that
Lender or any other party succeeds to the interest of Landlord under the Lease
by foreclosure or by acquisition of title to the premises in lieu of
foreclosure, or any other action taken under the Deed of Trust or Mortgage by
Lender, or in the event that Lender or any other party exercises the rights
granted to it by any assignment, Tenant hereby agrees to be bound to Lender or
such other party under all of the terms, covenants and conditions of the Lease;
and, Tenant agrees that it shall attorn to, and be liable to and recognize
Lender or such other party as Tenant's new landlord for the balance of the Term
of the Lease upon and subject to all the terms and conditions thereof, and the
Lease and the rights of Tenant thereunder shall continue in full force and
effect as a direct lease between Tenant and Lender or such other party upon all
the terms, covenants, and agreements set out in the Lease, and Tenant shall
thereafter make the rental payments set out in the Lease as instructed by
written notice of Lender or such other party, forwarded to Tenant by certified
mail, return receipt requested or registered mail, postage prepaid, at least ten
(10) days prior to the date when the next payment of Rent or other sum payable
under the Lease is due. Such attornment shall be effective and self-operative
without the execution of any further instrument by Lender or such other party
and Tenant immediately upon the succession by Lender or such other party to the
interest of the Landlord under the Lease, and the respective rights and
obligations of Tenant and Lender or such other party upon such attornment, to
the extent of the then remaining balance of the Term of the Lease and any
extension of renewal permitted thereby, shall be and are the same as are now set
forth in the Lease or as it may have been modified with Lender's consent.
This Agreement shall be binding on and inure to the benefit of the Tenant,
the Lender and their respective successors and assigns.
Landlord joins in this Agreement for the purpose of consenting to the
provisions hereof and agrees to be bound hereby.
IN WITNESS WHEREOF, Tenant, Landlord and Lender have caused this Agreement
to be executed as of the _____ day of _________________, 2000.
LANDLORD: TENANT:
Santa Xxxx Freeholders, a West Marine Products, Inc., a California
California Limited Partnership corporation
By: By:
----------------------------- --------------------------------------
Title: Title: Xxxxx Xxxxxxx, AVP of Real Estate
-------------------------- ----------------------------------
By: By:
----------------------------- --------------------------------------
Title: Title: Xxxxxx Xxxxxx, Director of Real Estate
-------------------------- --------------------------------------
LENDER
By:
---------------------------------------
Title:
------------------------------------
Exhibit "E"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (hereinafter
"Agreement") is made by and between ______________________, a ________________,
(hereinafter called "Lender"), its successors and assigns (including but not
limited to the holder of the promissory note and Deed of Trust hereinafter
described), and West Marine Products, Inc., a California corporation,
(hereinafter called "Tenant"), which is the Tenant under a lease from
______________, a ___________________, ("hereinafter called Landlord"), dated
____________ pertaining to certain real property and store premises more fully
described in Exhibit "A" attached hereto and made a part hereof (hereinafter
called the "Demised Premises").
As an inducement to Lender to make a first Deed of Trust Loan
(hereinafter called the "Loan") in the original principal amount of $___________
and interest secured by the Demised Premises and certain personal property,
evidenced or to be evidenced by a promissory note secured by the hereinafter
described Deed of Trust, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, Tenant hereby warrants and represents
to Lender and agrees with Lender as of the date hereof, as follows:
1. The aforesaid Lease and any and all extensions, modifications, and
renewals thereof and all of Tenant's rights and interest thereunder (hereinafter
collectively called the "Lease"), are hereby subjected and subordinated to, and
are declared to be subjected and subordinated to that certain Deed of Trust from
Landlord to Lender, and all extensions, modifications and renewals thereof or of
the indebtedness secured thereby, given as security for the Loan and recorded in
the __________________________ in the __________________________________ of the
County of ____________________________, ________________________, and pertaining
to the Demised Premises (such Deed of Trust or Mortgage and all extensions,
modifications and renewals thereof are referred to herein collectively as the
"Deed of Trust"), to the same extent as if the Deed of Trust documents had been
executed, delivered and recorded prior to the execution of the Lease; provided,
however, the Deed of Trust shall not increase or add to any obligations of
Tenant under the Lease or terminate or diminish any rights of Tenant under the
Lease.
2. Tenant's subordination is upon and subject to the express conditions
that:
a. So long as Tenant continues to pay the rent as provided for
in the Lease and otherwise complies with all the terms and provisions
thereof, Lender shall not disturb the rights of possession of Tenant in and
to the Demised Premises or other premises as set forth in
the Lease, notwithstanding any foreclosures or proceedings in lieu thereof
affecting the Demised Premises and/or such other premises and whether or
not Tenant is made a party thereto; and
b. If the Demised Premises or other such premises or any part
thereof is damaged or destroyed by casualty or by the exercise of any right
of eminent domain, the proceeds of any insurance or condemnation award
relating thereto shall be made available for the purpose of repair or
restoration thereof as provided for in the Lease; and
c. Upon passing of title to the Demised Premises and/or such
other premises to the Lender or to any other party in any foreclosure or
proceedings in lieu thereof, the party acquiring such title shall thereupon
during the period of such party's ownership, by virtue of such acquisition
of title and continued ownership and without the execution of any further
instruments or documents, be deemed to be the Landlord for all purposes of
the Lease during the period of such ownership and be deemed to have assumed
the full and complete performance of all the obligations of Landlord as set
forth in the Lease which accrue during the period of such ownership; and
d. If Lender shall take possession to the Demised Premises
and/or such other premises, without acquiring title thereto, but in such a
manner as to be entitled to receive rents therefrom, Lender shall, in
addition, be deemed to have assumed all the period of possession.
3. Lender, by its acceptance of this Agreement, agrees that in the event
Lender or any other party takes possession ofthe Demised Premises and/or other
such premises as note-holder-in-possession, by foreclosure of the Deed of Trust
or by acquisition of title in lieu of foreclosure, that Lender or such other
party shall not affect or disturb Tenant's right to possession or Tenant's other
rights under the Lease in the exercise of Lender's or such other party's rights
so long as Tenant is not then in default under any of the terms, covenants, or
conditions of the Lease beyond the curative periods applicable thereto under the
Lease. In the event that Lender or any other party succeeds to the interest of
Landlord under the Lease by foreclosure or by acquisition of title to the
Demised Premises and/or other premises in lieu of foreclosure, or any other
action taken under the Deed of Trust by Lender or any other party, or in the
event that Lender or any other party exercises the rights granted to it by any
assignment, Tenant hereby agrees to be bound to Lender or such other party under
all of the terms, covenants and conditions of the Lease, and Tenant agrees that
it shall attorn to, and be liable to and recognize Lender or such other party as
Tenant's new landlord for the balance of the Term of the Lease upon and subject
to all the terms and conditions thereof, and the Lease and the rights of Tenant
thereunder shall continue in full force and effect as a direct lease between
Tenant and Lender or such other party upon all the terms, covenants, and
agreements set out in the Lease, and the rights of Tenant thereunder shall not
be terminated or disturbed except in accordance with the terms and
provisions of the Lease, and Tenant shall thereafter make the rental payments
set out in the Lease as instructed by written notice of Lender or such other
party, forwarded to Tenant by certified mail, return receipt requested or
registered mail, postage prepaid, at least ten (10) days prior to the date when
the next payment of Rent or other sum payable to the Landlord under the Lease is
due. Such attornment shall be effective and self-operative without the execution
of any further instrument by Lender and Tenant immediately upon the succession
by Lender or such other party to the interest of the Landlord under the Lease;
and the respective rights and obligations of Tenant and Lender upon such
attornment, to the extent of the then remaining balance of the Term of the Lease
and any extension of renewal permitted thereby, shall be and are the same as are
now set forth in the Lease or as it may have been modified with Lender's
consent.
This Agreement shall be binding on and inure to the benefit of the Tenant,
the Lender and their respective successors and assigns, including but not
limited to the purchasers at or in lieu of a foreclosure under the Deed of
Trust.
Landlord joins in this Agreement for the purpose of consenting to the
provisions hereof and agrees to be bound hereby.
IN WITNESS WHEREOF, Tenant, Landlord and Lender have caused this Agreement
to be executed as of the _____ day of _________________, 2000.
LANDLORD: TENANT:
Santa Xxxx Freeholders, a West Marine Products, Inc., a California
California Limited Partnership corporation
By: By:
----------------------------- ------------------------------------------
Title: Title: Xxxxx Xxxxxxx, AVP of Real Estate
-------------------------- --------------------------------------
By: By:
----------------------------- ------------------------------------------
Title: Title: Xxxxxx Xxxxxx, Director of Real Estate
-------------------------- --------------------------------------
LENDER
By:
-----------------------------
Title:
--------------------------
Exhibit "F"
TENANT'S PLANS
--------------
Demising Wall specifications:
The Demising Wall shall be fire rated in accordance with applicable codes, built
from floor to ceiling and flush with the underside of the roof deck using (at a
minimum or as required by applicable code) 3 5/8" metal studs 16" OC and 5/8"
dry-wall on each side, taped, sanded, finished and ready for Tenant's paint,
with a minimum insulation value of R-11.
