EXHIBIT 10.9
Hockessin Square
LEASE
Between Hockessin Square, L.L.C. , 3100 Centerville Road, Wilmington, DE 1980,
as Landlord, and Dover Saddlery, Inc., a massachusetts Corporation as Tenant,
whose address is:
525 Great Road, Littleton, MA 01460-0700
The Landlord hereby leases to Tenant the rental space numbered 683-693, with
an assigned area of 10,315 square feet, a part of the real property shown in
Exhibit A attached (the "property" below) and located as there shown. The word
"property" shall include rental spaces and common area, if any, the Landlord
hereafter adds to those in Exhibit A.
The term of this lease commences August 1, 2002 and ends July 31, 2005. Tenant
shall commence paying rent as of August 1, 2002. Rent includes: the monthly
installments; Tenant's share of common expenses; late fees, interest and other
charges; and all other payments by Tenant provided below. If paying rent does
not commence on the first day of a month, it will be prorated on a daily basis
for that month. The second and subsequent lease years begin on the anniversary
of the first day of the calendar month following the month when paying rent
commenced. The monthly installments are:
Years 1 - 3: $10,529.90 [Period August 1 - September 15, 2002 shall
be rent free]
For Option Years - See Rider 1, paragraph 34d
Tenant shall not use the rental space for any prohibited use listed in the
attached Rules and Regulations nor, without first obtaining the written consent
of Landlord, for any use other than the following:
retail sales and services including the sale of tack, riding apparel, boots,
shoes, leather products, medications and ointments related to the care of
horses, saddles and items relat to the care and keeping of horses or for any
other lawful retail purpose which is not in conflict with any exclusive granted
another tenant.
Security deposit: $0
Rider 1, Exclusive Use Rider, Exhibit A, Rules & Regulations
This lease includes the terms above and paragraphs 1 - 30 attached, and its date
is the date Landlord subscribes it.
TENANT AGREES THAT LANDLORD HAS NO OBLIGATION TO SIGN THIS LEASE, THAT THE ABOVE
RENTAL SPACE IS NOT RESERVED FOR TENANT, AND THAT LANDLORD MAY, IN LANDLORD'S
SOLE DISCRETION. LEASE THE ABOVE RENTAL SPACE TO ANOTHER.
Dover Saddlery, Inc.
/s/ Michael B. /s/ Stephen L. Day 6/22/02
- ------------------------------------- -----------------------------------
Witness Tenant Stephen L. Day
Its President
Hockessin Square, L.L.C.
-----------------------------------
Landlord's name printed
By:
- ------------------------------------- -------------------------------
Witness Member Date:
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2. Liability Insurance - Tenant shall provide comprehensive liability insurance
coverage on the rental space issued by an insurance company and broker
acceptable to the Landlord, naming Landlord as an additional named insured,
covering both property and bodily injury, with limits of at least $1,000,000
per occurrence and $2,000,000 for all occurrences in one year, and with right to
cancel or refuse renewal only on 30 days written notice to the Landlord. Tenant
shall provide Landlord with evidence of coverage before taking possession of the
Rental Space, and evidence of renewal at least 20 days before any policy
expires. If Tenant fails to provide required insurance, Landlord may do so and
Tenant must reimburse the cost on demand.
3. Utilities - The Tenant shall arrange and pay for all utilities and services
for the rental space. Landlord will not supply gas, water, electricity, sewer,
or any other service or utility. Loss of any utility or service will not excuse
Tenant from paying rent, or in any way make Landlord liable to Tenant. Tenant
shall pay on demand to Landlord the cost of any utility service for heat or
other maintenance of the Rental Space paid by Landlord after Tenant's failure to
supply.
4. Payment of Rent - Tenant will pay rent to the Landlord at the Landlord's
address. Each monthly installment is due before the sixth day of the month for
which it is made. Tenant's share of common expenses are payable at Landlord's
option: (a) with monthly installments in amounts from time to time estimated by
the Landlord; or (c) before the twenty-first day after billing Tenant. Tenant's
obligations and estimates paid shall be reconciled from time to time and at
least annually, and any excess of Tenant's obligations over estimates paid shall
be paid by Tenant on demand and any excess of estimates paid over obligations
shall be credited to Tenant's account. Common expenses include: fire protection;
water; septic and storm, sewer services; lighting; snow plowing; repairs;
maintenance; cleaning; landscaping; management fees at five percent of all rent
items other than late fees, bank charges and interest; insurance premiums; real
estate taxes, assessments, and such other improvements, services and materials
as are, from time to time, regularly or irregularly, required either by law or
for the successful operation of the property.
5.1 Repair - Landlord shall provide repairs to the exteriors of walls, the
structure, the roof supports and surface, the roads, driveways, walkways and
parking areas, and the other common areas and facilities of the property, and,
except when reimbursed by less than all Tenants or another party, shall charge
the cost as a common expense. Tenant shall provide repairs: (a) needed to keep
the rental space-including walls, equipment, fixtures, interior and exterior
doors and windows, and other facilities-in good condition and appearance; (b) of
damage to the rental space and exteriors of walls, the structure, the roof
supports and surface, the roads, driveways and parking areas, and the other
common areas and facilities, caused by Tenant, an invitee of Tenant, a person
employed or engaged by Tenant, or a person trespassing in the rental space; (c)
of all damage to the rental space caused by vandalism or a casualty usually
covered by a policy of insurance generally available to any tenant. Tenant shall
provide and pay for quarterly servicing acceptable to Landlord for the HVAC
units in the Rental Space, and shall provide Landlord with a copy of the
contract. Landlord may, in Landord's sole discretion, provide such HVAC service
and repair and the Tenant will pay the cost.
5.2 Repair Defined - In defining common expense, "repair" shall be given the
broadest possible meaning and, without limitation, shall include: (a) painting
and striping; (b) cleaning; (c) lubricating, replacement of filters, and other
routine maintenance; (d) sealing, resurfacing and rebuilding of roofs, roads,
driveways, and parking areas; (e) replacement of equipment, fixtures, plantings
and other parts of the rental space and property; and (f) every other action
necessary to keep the rental space and property in good appearance and operating
condition.
6. Landlord Liability - Landlord will not be liable to Tenant for damages from:
leaks or dampness; work on the rental space, common area or other space; the
failure of any heating, cooling, plumbing, electrical or other equipment;
failure of the structure; failure of any wall, floor, or roof-surface material
or treatment; acts or negligence of other tenants or their invitees; for any
damage usually covered by a policy of insurance generally available to a tenant;
any cause other than Landlord's malicious act or gross negligence.
7. Rules and Regulations - Tenant has received a copy of the Rules and
Regulations of the property and agrees to comply with them and any reasonable
amendment of which Tenant is given a copy.
8(a). Use Restrictions - Tenant may not: (a) abandon or vacate the rental space;
(b) disfigure or deface the rental space, or permit any waste, nuisance or
unlawful use; (c) use the rental space without a Certificate of Occupancy
obtained by Tenant; (d) violate any use or sign restrictions; (e) conduct a use
causing increased insurance premium or cancellation of Landlord's insurance.
8(b). Landlord Consent - Without Landlord's reasonable consent, Tenant shall
not: (i) use the rental space for any use not stated in this lease; (ii) assign
this lease or sublet the rental space; (iii)
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encumber this lease or the rental space; (iv) record the lease; (v) erect any
sign of any kind; (vi) modify the structure, the exterior, or any other part of
the rental space; (vii) use the rental space in any way which requires its
alteration. Any transfer (a) of substantial assets of Tenant, whether more or
less than a majority, other than in the ordinary course of Tenant's business,
(b) of control of Tenant, or (c) of Tenant's business in the rental space -
whether directly, indirectly or by operation of law-shall be deemed an
assignment of this lease. No acceptance of a payment on account of this
agreement from someone other than Tenant shall be construed as consent by
Landlord.
9. Miscellaneous - Tenant agrees; (a) that vehicles of Tenant and Tenant's
employees will be parked on the property only in an area designated for that
purpose, and Tenant and Tenant's employees may not use any parking area for any
parking or storage of other than personal vehicles, on a daily basis, while
engaged in Tenant's business; (b) to at all times maintain rental space
temperature at 55 or more degrees F.; (c) to make no agreement which can create
a lien against the property; (e) that Landlord does not waive any right or
remedy by (i) accepting a payment on account, (ii) electing a different right or
remedy, (iii) taking no action, or (iv) in any way other than by a written
waiver subscribed by Landlord; (f) that Landlord may allocate a payment on
account as Landlord sees fit and regardless of instructions that accompany the
payment; (g) to provide Landlord with a telephone number at which Tenant may be
contacted in an emergency during other than regular business hours;
10. Surrender of Rental Space - Unless otherwise directed in writing by
Landlord, Tenant shall surrender the rental space at lease end broom clean and
in condition in the same condition in which it was delivered except for (i)
reasonable wear and tear and (ii) damage which causes termination of the lease
and is insured by Landlord. At lease end Tenant shall also deliver at the place
for paying rent all keys and combinations for all rental-space locks. Landlord
may, but need not, treat as abandoned any property in the rental space at lease
end. This paragraph shall survive ending of the lease.
11. Timely Payment - Timely payment is of the essence of this lease and Tenant
may not delay or refuse any payment of any kind for any reason. For each payment
that is late, and for each check on Tenant's account deposited by Landlord and
returned unpaid for any reason, Tenant will pay on demand for Landlord's
additional expense an amount equal to the greater of $100.00 or 5% of the check
or late amount, plus interest at the lower of 18 % per year or the maximum rate
allowed by usury protection where the property is located.
12.1 Default by Tenant - Tenant will be in default of any provision of this
lease requiring payment if a payment is received after it is due. Tenant will be
in default of any other provision if Tenant fails to begin and diligently pursue
curing a violation within 15 days of Landlord giving notice of the violation.
The fifteen days will be extended by any period of delay in curing caused by
events Tenant neither initiates or controls. Landlord may evict Tenant following
Tenant's default, but Landlord may not evict Tenant for the first payment
default to occur in each year if the payment is made within 30 days of the due
date. Landlord may, but need not, cure a default of Tenant and add as rent to
the payment next due an amount equal to Landlord's cost plus a reasonable
compensation for services.
12.2 Rent Acceleration - After default by Tenant, the Tenant shall immediately
and without demand pay to Landlord a sum which is equal to all arrears in rent
to the date of default plus the present value at that time of all rent which
would be paid under this lease in the absence of default during the balance of
the then-current term (the "current term"). Present value shall assume (a)
annual increases in all variable parts of the rent at the greater of five
percent or the percentage of increase in the Consumer Price Index for Urban Wage
Earners and Clerical Workers, Philadelphia Region, All Items, Bureau of Labor
Statistics, U. S. Department of Labor, or if that Index is no longer published
on the date of default the most similar index, over the twelve-month period next
preceding the date of the default for which the data is available, and (b)
interest earned on such payment at a rate equal to the rate that the Wilmington
Trust Company of Wilmington, Delaware, pays on its certificates of deposit
issued on date of default and maturing nearest to the end of the current term.
13. Reletting after Default - After default by Tenant and possession of the
rental space returned to Landlord, whether by Tenant surrendering the keys to
the Landlord or otherwise, the Landlord need not mitigate damages by seeking
another tenant for the rental space, but may do so, in Landlord's absolute
discretion. In the event of renting to another, Landlord shall reduce Tenant
arrears by rent received after first recovering costs, and compensation for
Landlord's services, related to any fixing of the rental space, the reletting
and managing. Possession of the rental space by Landlord shall not cause
forfeiture of accelerated rent.
14. Landlord Access - The Landlord shall have access to the rental space on 7
days notice to the Tenant for inspection, for repairs, alterations, or
improvements, and showing to prospective buyers, mortgage lenders, contractors,
or insurers. During the six months before the end of the term, Landlord may
display appropriate "for rent" signs in and from, and show, the rental space.
The Landlord may enter the rental space without notice in an emergency.
15. Indemnity - The Tenant shall indemnify and defend the Landlord against all
liability, and reimburse Landlord for any expense or damage, arising from: (a)
any act or negligence of Tenant, an invitee of Tenant, and damage to the rental
space by a trespasser in the rental space; (b) a lien against the rental space
or property resulting from any activity of Tenant. Landlord shall indemnify and
defend Tenant against claims arising out of the property and out of Landlord's
direct act or negligence.
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16. Destruction of rental space - Tenant must notify Landlord of damage to the
rental space, or common area essential to its use, from fire or other casualty.
If Landlord's mortgagee consents and allows Landlord to apply insurance
proceeds, and to the extent such insurance proceeds allow, the Landlord must
substantially restore the rental space to the condition, and with improvments,
by custom provided to a tenant in similar, newly-built space. Rent will be
reduced in proportion to the amount of space made unusable by such damage until
the space is substantially restored. During the last two years of the lease with
all extensions, if the cost of restoring any part of the property which includes
the rental space, or common area essential to its use, exceeds 50% of the cost
of razing and rebuilding such part, Landlord may end the lease after fifteen
days notice to the Tenant.
17. Eminent Domain - Should governmental action cause the operation of the
property to become unlawful, or should the rental space, or common area
essential to its use, be made unusable by eminent domain or a similar taking,
the Landlord may, on written notice to the Tenant, either reduce the rent in
proportion to the part taken or end this lease as of the date of taking or at
such earlier time as the notice may specify. Rent shall be paid until such rent
reduction or such lease end. Landlord shall give Tenant prompt notice of any
such proceedings, but such notice shall not be deemed notice of rent reduction
or end of lease. If the lease is not ended, and if Landlord's mortgagee consents
and makes restoration damages available to Landlord, the Landlord must restore
the property, as nearly as changed conditions and such restoration damages
allow, to a condition and with improvments provided by custom to a tenant in
similar, newly-built space. Tenant shall make no claim for a taking of Tenant's
leasehold interest.
18. Environment Protection - Tenant shall provide compliance with environmental
protection, environmental clean-up, and other environmental laws, whether in
effect now or at any time in the future, including, but not be limited to: a)
obtaining permits and/or licenses; b) avoiding the unauthorized release of
hazardous or regulated substances into the environment; c) preparing any plan
for, undertaking, and/or providing financial assurance with respect to, any
clean-up determined necessary by any governmental agency; d) reporting, and
complying with requirements related to, any closing, terminating or transferring
of operations or property, or any other action covered by such law; e) providing
all information requested by Landlord and/or any government agency for proof of
non-applicability or other required submissions required; and f) promptly
executing and delivering such proof or other submission. Tenant shall also
indemnify and defend Landlord against all fines, penalties, assessments, suits,
proceedings, claims and actions of any kind arising out of, or in any way
connected with, Tenant's failure to fully comply with any provision of this
paragraph. Tenant's obligations and liabilities under this paragraph shall
survive ending of this lease. Tenant shall pay rent as a holdover tenant after
ending of this lease, whether or not tenant has possession of the rental space,
during any period of delay in reletting the rental space to another caused by
any reporting, inspection, clean up, or other requirement of an environmental
law related to Tenant's use of the rental space. In addition to other remedies,
Landlord may seek any remedy available in equity to enforce compliance with this
paragraph. For all purposes of this paragraph 18, every person who signs this
lease on behalf of a corporation or other entity named as Tenant shall
personally be deemed a Tenant under the lease and shall be jointly and severally
liable with the entity named as Tenant for defaults under this paragraph. Any
notice relating to this paragraph from Landlord or another to the corporation or
to the undersigned shall be deemed notice to both the corporation and the
undersigned. Tenant shall not be held liable for unauthorized or hazardous
substances released through no fault of Tenant in the rental space before this
lease term begins or after it ends, or which infiltrate from outside of the
rental space.
19. Allocation of Expenses - Tenant's share of common expenses shall equal a
percentage proportionate to the area of floor space assigned to the rental space
when compared with the area of all rentable floor space assigned to the
property. (Assigned areas are based on measurements to the exterior of exterior
walls and the center of interior walls.) Expenses charged to the property on a
specific basis shall be allocated in a manner consistent with the way the
property is charged. (One example is sewer charges which vary among rental
spaces according to use.) Also, common expenses not related to all tenants will
be allocated only among those tenants related to the expense. (One example is
charging a tenant who needs lighting for 24-hour parking for all lighting
supplied during normal lights-out hours. Another example is that any expense of
maintaining exterior building surfaces will not be charged to a rental space
which did not receive such maintenance by Landlord and is subject to a lease
requiring the tenant in that rental space to provide it.)
20.1 Subordinate/Attorn - This lease and all rights under the lease are subject
and subordinate to any lien of mortgage on the property. However, at the sole
and absolute election of a mortgage holder, this lease and Tenant's rights under
it shall be superior and prior in right to that mortgage-holder's lien with the
same force and effect as if this lease had been made and delivered prior to the
mortgage. Tenant hereby, without claim for Landlord defaults prior to exercise
of rights under any mortgage, attorns to (agrees to remain a tenant of) and will
treat as new landlord (i) a holder of a mortgage who becomes (a) mortgagee in
possession or (b) owner of the property by deed, foreclosure or otherwise and
(ii) a Mortgage holder's successors and assigns by assignment or foreclosure of
lien or otherwise. This subordination and attornment are self-operative and
without need of further instrument or action to have effect, but Tenant shall
provide such further written assurances thereof as Landlord may from time to
time request. For all purposes of this lease the word "mortgage" means any
mortgage made before the date of this lease or later, and all renewals,
extensions and replacements of a mortgage.
20.2 Estoppel - Upon written request, Tenant shall sign and return to Landlord
any requested writing certifying (i) the lease is in full effect, (ii) the
Landlord is in full compliance without offset, (iii) Tenant's payments are made
to dates specified and (iv) other matters Landlord reasonably requires.
20.3 Remedies - Upon any request under 20.2 or 20.3 not fully met within 10
business days the Tenant shall be deemed to then admit Landlord's full
compliance and all other certifications sought under 20.2, and in the Landlord's
sole
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and absolute discretion, any or all of the following shall apply: (a) Tenant
shall be in default under the lease.
21. Acceptance of Rental Space - Tenant accepts the rental space "as is" on the
date of this lease,
22. Delay Rent - payments shall commence as stated above whether or not Tenant
is delayed in commencing business in the rental space. Commencement of rent
shall be postponed by any time equal to any delay in Landlord's supplying to the
rental space any labor, service or material Landlord has agreed in writing to
supply, but only if both of the following conditions are met: (1) before the
rent-commencement date provided above, and promptly after the beginning of
Landlord's delay, Tenant gives Landlord notice in writing stating what Landlord
must supply under the agreement to prevent the delay; and (2) Landlord's failure
to supply must be the sole cause of the delay. Regardless of cause, Landlord
shall not be liable for damages from a delay in Tenant's commencing business.
23. Holding Over - Any period of possession of the rental space by Tenant after
the ending of the term of this lease may, at Landlord's option, be construed to
be a tenancy from month to month on all of the terms and conditions of this
lease except that the amount of the monthly installment shall be 1.5 times the
amount due for the month immediately preceding the ending of the term.
25. Quiet Enjoyment Relocation - Tenant shall have quiet enjoyment of the
rental space during any period free of default by Tenant,
26. Code Compliance - Landlord and Tenant shall promptly notify the other of
receipt of any notice alleging violation in the rental space of any federal,
state or local law concerning health, safety, access, building code or other law
or regulation. The Tenant shall pay the cost of modifying the rental space to
correct such violation, and the cost of modifying any common area to correct any
such violation in the common area shall be a common expense.
27. Other Agreements and Representations - Neither the Landlord or Tenant are
bound by oral agreements or representations, nor by any unsigned writing other
than the Rules and Regulations.
28. Address of Tenant - Tenant represents that the address shown for Tenant is
the address of Tenant's residence.
29. Notices, etc. - Notices, including demands and other written communications,
must be in writing sent to the addresses shown in this lease by registered or
certified mail, or in person. A notice will be deemed given on the date it was
received by the addressee as evidenced by a U. S. P. S. return receipt, or if a
requested return receipt is not signed, notice will be deemed given on the date
of mailing of the notice as evidenced in any form by the U. S. P. S. An address
may be changed by a written notice to all other parties. Notice to one party
named as Tenant shall be deemed notice to all parties named as Tenant.
30. Construction - Examples used in this lease explain but do not limit intent.
If a portion of this lease is found unlawful, the balance of the lease shall
remain in effect. This lease shall bind successors, representatives and assigns
of Landlord and Tenant. Plurals shall be construed as including the singular,
and the singular as including plurals. Words immediately following paragraph
numbers are for convenience and reference only, and shall not be used in
construing any provision that follows them. The word "Tenant" shall mean all
parties named as Tenant and/or signing as Tenant. The word "provide" shall mean
the provider bears all expense.
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RIDER 1 TO HOCKESSIN SQUARE LEASE
BETWEEN
DOVER SADDLERY, INC.
AND
HOCKESSIN SQUARE, L.L.C.
RENTAL SPACE: Stores 683 - 693, 10,315 square feet, at Hockessin Square, Yorklyn
Road, Hockessin Delaware.
A. The following provisions amend the provisions of the same number in the Lease
form to which this Rider 1 is attached. In the event of any conflict between the
provisions below and any provision in the Lease form, the provisions below shall
control.
4. Common expenses shall not increase by more than an average of 7.5% per year.
5.1 The Tenant shall make no structural repairs. Tenant shall not be liable for
damage to the property outside of the rental space caused by a trespasser.
5.2 Common expenses shall include only the annual portion of repairs of a
capital nature which are amortized over a period of more than one year according
to generally accepted accounting principles.
7. The Tenant shall not be bound by any Rules and Regulations which do not apply
equally and without prejudice to all tenants.
8(a). Delete from paragraph 8(a) the following: "(a) abandon or vacate the
rental space;" and add in its place the following: (a) abandon or vacate the
rental space without giving the Landlord prior written notice and 90 days within
which the Landlord may, but need not, in Landlord's sole and complete
discretion, take possession of the rental space and thereby relieve Tenant of
all liability under the lease after the date of Landlord's taking possession;
8(b). Delete from paragraph 8(b) the part of the first sentence designated (ii),
and the sentence beginning with the words: "Any transfer (a)..." and add the
following: Any transfer of all or a major part of the business of the Tenant
conducted in the State of Delaware, other than to an entity under the same
control as the Tenant, whether directly, indirectly, by transfer of stock or
other ownership interest, by transfer of control, by operation of law or
otherwise, shall be deemed an assignment of this lease. And immediately
following that sentence, also add to paragraph 8(b) the following: The Tenant
shall not assign this lease without the prior written consent of the Landlord,
which shall not be unreasonably withheld. Without limitation, the Landlord shall
have good reason to withhold consent to an assignment to a person without (i)
financial standing at least equal to that of the Tenant and (ii) experience in
business at least equal to that of the Tenant. The Tenant shall remain jointly
and severally liable with any assignee of the lease for performance of the
Tenant's obligations under the lease for the balance of the term remaining at
the time of the assignment, including any period for which Tenant has, within
six months prior to the assignment, elected to extend the term under paragraph
34 or for which the assignee may so elect within eighteen months after the
assignment. The Tenant shall be released from such joint and several liability
if (i) the market rate of rent for similar rental space then prevailing in New
Castle County, Delaware, is higher than the rent then provided in the lease,
(ii) the assignee agrees in writing to pay such higher rent to the Landlord and
(iii) the Landlord, in the Landlord's sole and complete discretion and with or
without reason, agrees in writing to accept such higher rent from the assignee.
The Tenant shall not sublease the rental space without the consent of the
Landlord, which shall not be unreasonably withheld. The Landlord may refuse to
consent to a sublease if (i) the market rate of rent for similar rental space
then prevailing in New Castle County, Delaware, is higher than the rent then
provided in the lease and (ii) the Tenant refuses to agree in writing to pay
such higher rent to the Landlord. The Landlord may not refuse to consent to a
sublease between Tenant and an entity owned by the Tenant or the Tenant's
shareholders.
9. Add to section 9 the following: In the event the Tenant is requested to enter
into an agreement subordinating this Lease to the lien of a mortgage and/or
attorning to the mortgagee, the agreement shall provide that the Tenant's
possession of the rental space shall not be disturbed while the Tenant remains
free of default under this Lease.
12.1 Add to paragraph 12.1 the following: The Landlord shall not seek to evict
the Tenant from the rental space for any monetary default without first giving
Tenant written notice and fifteen days within which to cure the default.
15, Add to paragraph 15 the following: The Landlord shall keep the improvements
to the Property insured under a policy which will pay the full cost, less a
reasonable deductible amount, of replacing any part of the property damaged by
fire or other insurable casualty.
18. Add to section 18 the following: The Landlord warrants and represents to the
Tenant that the Landlord has received no notice that the property is in
violation of any environmental law and has no information as would lead a
prudent person to further investigate whether any such violation exists.
21. INTENTIONALLY OMITTED.
26. Add to paragraph 26 the following: The Tenant shall not be required to
perform any work or supply any materials for curing any such violation in any
other rental space in, or common area of, the property, nor any violation not
arising out of the Tenant's use of the rental space.
B. The following provisions are added to the Lease form to which this Rider 1 is
attached. In the event of any conflict between the provisions below and any
provision in the Lease form, the provisions below shall control.
31. Landlord warrants the rental space HVAC system only, for the first full
lease year provided Tenant adheres to the maintenance requirements described in
Paragraph 5.1 of the lease. Tenant will have the advantage of the manufacturer's
warranty on the HVAC equipment. If the Landlord causes HVAC maintenance to be
performed, at Tenant's expense, Landlord will do so at competitive prices.
32. INTENTIONALLY OMITTED.
33. The rental space will be delivered to tenant in the condition described "AS
IN CONDITION" ON OR BEFORE AUGUST 1, 2002.
34. This lease will be extended for three (3) new terms, at the option of Tenant
only, upon the following conditions:
a. Prior to the commencement of the new term there has been no default for
which Landlord may have terminated the lease, whether or not Landlord served
notice or took other action to terminate;
b. The Tenant shall mail written notice of exercise of this option to
Landlord, postmarked during the twelfth through seventh full calendar month
preceding the commencement of the new term;
c. The length of each new term shall be five years, and each shall
commence immediately upon the expiration of the term during which the notice is
sent.
d. The monthly installment shall be $ 12,034.17 during the first option
term; $ 14,612.92 during the second option term; and, $ 17,191.66 during the
third option term.
35. Early Termination. The Tenant may terminate this lease at any time upon
written notice to the Landlord accompanied by payment to the Landlord of all
rent due to the date of the notice together with one-half of future rent due.
Future rent shall equal the monthly installments plus common expenses times the
number of months remaining in the then-current term of the lease after the
giving of notice, but not more than thirty times or less than twelve times. The
term of the lease shall not include any period of extension under paragraph 34
for which the Tenant has not given notice under that paragraph. For the purposes
of calculating amounts due under this paragraph only, common expenses shall be
deemed not to change after the date of giving such notice.
36. Emergency Repairs. Either party may, in an emergency, immediately, but after
an attempt to notify the other party orally, make any repairs required of the
other party (Second Party) to the extent reasonably necessary to secure the
rental space or prevent damage to persons or property. The Second party shall
reimburse the other party the costs of such repairs within thirty days of
receipt by the Second party of a statement of the costs and substantiation that
such repairs were reasonable in cost and scope.
37. INTENTIONALLY OMITTED.
Tenant / Dover Saddlery, Inc.
/s/ Michael B. /s/ Stephen L. Day 6/25/02(Seal)
- ------------------------------ -------------------------------------
Attest Name: Stephen L. Day
Title: President and CEO
Landlord / Hockessin Square, L.L.C.
- ------------------------------ -------------------------------------
Witness Member
EXCLUSIVE USE RIDER
As a part of the consideration for the rent paid by Tenant, Landlord shall
not make any lease hereafter with a Tenant new to HOCKESSIN SQUARE
allowing rental space to be used for: RETAIL SALE OF TACK; RIDING APPAREL;
BOOTS; SHOES, LEATHER PRODUCTS, MEDICATIONS AND OINTMENTS RELATED TO THE CARE OF
HORSES, SADDLES AND ITEMS RELATED TO THE CARE AND KEEPING OF HORSES.
(the exclusive use). EXCEPTED FROM THIS EXCLUSIVE IS THE EXCLUSIVE USE EARLIER
GRANTED TO CONCORD PET FOODS & SUPPLIES FOR THE "RETAIL SALE OF PET FOOD AND
ACCESSORIES AS A PRIMARY USE".
Tenant agrees that since a certain amount of overlapping use by other
Tenants is unavoidable, the exclusive use hereby granted shall not prohibit
another Tenant from enjoying a use which is the same as, or similar to, the
exclusive use so long as the other Tenant abides by the following limitations:
1. The use has reasonable business relation to the other Tenant's
principle use;
2. The use produces no more than 7% of all revenues derived from the other
Tenant's conduct of business in, or from, the shopping center; and
3. The use is not advertised as a part of the other Tenant's conduct of
business in, or from, the shopping center.
All claims and disputes arising out of this exclusive-use provision,
including claims for damages, shall be submitted to the American Arbitration
association for resolution according to its rules and procedures. The expense of
any arbitration proceeding, including the fees of attorneys, expert witnesses,
and other consultants, shall be awarded to the successful party. The arbitrator
shall make a specific finding as to who is a successful party and the expense of
such party.
Tenant agrees that protection of the exclusive use hereby granted requires
vigilance, prompt pursuit of remedies by Tenant, and that protection of the use
is more valuable than any recovery of damages. Therefore, Tenant agrees to
accept enforcement by arbitration as the sole remedy, and subject to the
following conditions:
1. Tenant has not been in default of any provision of this lease at any
time prior to the decision in the arbitration proceedings. MORE THAN ONCE IN ANY
12 MONTH PERIOD THAT WAS CURED WITHIN 30 DAYS.
2. No damages may be awarded to Tenant except upon a finding of actual
loss of business to Tenant by reason of encroachment upon this exclusive use by
another Tenant.
3. Landlord may not be held liable for damages except upon a finding that
the exclusive use granted by this lease is expressly granted in another lease of
space in the shopping center.
4. Landlord has no obligation to enforce the exclusive use hereby granted.
5. No damages may be awarded against Landlord except jointly with another
Tenant who has encroached upon the exclusive use hereby granted.
6. No damages may be awarded against Landlord for more than 60 days of
encroachment of the exclusive use hereby granted.
7. No damages may be awarded against another Tenant for more than 60 days
of encroachment of the exclusive use hereby granted, except upon a finding that
the encroachment is a repeat of an encroachment found in a prior arbitration
proceeding to which the same Tenants were parties.
/s/ Stephen L. Day
- ------------------------------------
Tenant - Dover Saddlery, Inc.
Its President
- ------------------------------------
Landlord - Hockessin Square, L.L.C.
EXCLUSE 0393
RULES AND REGULATIONS - HOCKESSIN SQUARE
1. Any use of a rental space not stated in writing in the lease for that rental
space is prohibited unless proven by the tenant to be: (i) reasonable related to
the use stated in writing; (ii) producing no more than 7% of the gross sales at
or from the rental space; and (iii) not advertised as available at or from the
rental space. A claim of violation of such prohibition shall be resolved by
three arbitrators under American Arbitration Association rules. Awards in
arbitration must: (i) include expenses of a successful party (including those
for attorneys and witnesses); (ii) be made only upon a lease which has not ever
been in default by the claimant; *(iii) include damages only upon a specific
finding as to the nature and extent of actual loss; (iv) award damages against
the Landlord only upon an additional specific finding that Landlord granted in
writing to another tenant in a lease or consent the same principal use granted
in writing in the claimant's lease, and (v) not award damages for losses
incurred for more than two month prior to the claimant's written demand for
arbitration. *except for once in any 12 month period that was cured within 30
days
2. Receiving, shipment, loading, or unloading of merchandise or other items
shall be subject to such rules and regulations as to time, areas entrances and
other matters as Landlord may find are reasonably necessary for safety,
appearance or other purpose.
3. Each Tenant shall dispose of garbage and refuse in a lawful manner, at no
expense to Landlord or another Tenant, and in accordance with such reasonable
restrictions as Landlord may adopt. Landlord may require all or some tenants to
use a single contractor for refuse removal and the frequency of the removal
service. Landlord may require that the garbage and refuse of all or some tenants
be disposed of through shared facilitic and service designated by Landlord, and
that its cost be shared by such tenants according to either area occuppied or
special service requirements.
4. No aerial, satellite dish, or other item of exterior equipment shall be
installed anywhere in shopping center the prior written consent of the Landlord.
Landlord may, without notice and at Tenant's expense, remove any such item
installed without such consent.
5. Without the prior written consent of the Landlord, no loudspeaker,
television, phonograph, radio, or other device shall be used in a manner so as
to be heard or seen beyond the walls of the place where it is used.
6. Tenants may not place or permit any unapproved sign, any obstruction, or
merchandise, in any outside space.
7. Tenants shall maintain indoor temperature at a minimum temperature of 55
degrees Fahrenheit.
8. Any person working in or from the shopping center shall park a personal or
business vehicle only in employee-parking designated by Landlord.
9. Plumbing facilities shall not be used for any other purpose than that for
which they are constructed, and no plugging, flammable, corrosive or other
damaging substances of any kind shall be deposited in any sink, toilet or other
facility. The expense of any breakage, stoppage, or damage resulting from a
violation of this provision shall be borne by the Tenant of the space where the
violation occurred.
10. Each Tenant shall control pests in a manner to cause no expense to Landlord
or another Tenant. The Landlord may designate a pest-control contractor to be
used by all Tenants and the frequency of service.
11. Tenants shall not burn any trash, garbage, or other item of any kind in or
about the shopping center.
12. Tenants shall include the name and address of the shopping center in all
advertising.
13. Landlord may designate a contractor to be used by all Tenants, at the
expense of Tenants, equitably distributed, for window cleaning and for other
outside, store-cleaning maintenance.
14. In order to prevent damage to the roof and other equipment, the Landlord may
require: (i) that repairs and/or replacements of HVAC equipment be provided by a
provider designated by Landlord; and/or (ii) that routine maintenance of HVAC
equipment such as, but not limited to, changing filters, be provided by a
provider designated by Landlord and paid by Tenant, or provided by Landlord and
charged to Tenant as a common expense and/or according to the requirements of
any non-standard HVAC equipment serving Tenant.
16. All signs and window lights shall be illuminated between dusk and 11 pm
every day. All window displays shall be neat.
[FLOOR PLAN]
BREAKDOWN OF MONTHLY PAYMENT UNTIL 12/31/02
Rent $10,529.90
Real Estate Taxes 540.25
Insurance 115.44
CAM 1,687.14
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Total $12,872.93