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Exhibit 10.62
LEASE AGREEMENT
THIS LEASE, made and entered into this 18th day of July 1997 by and
between XXXX X. XXXXXXX & XXXXXXX XXXXXXX, as Landlord, and MST ENTERPRISES,
INC. (D/B/A EQUIPCO SALES & RENTALS), a Virginia corporation, as Tenant;
W I T N E S S E T H:
In consideration of the mutual covenants and agreement hereinafter set
forth, and the rent reserved by Landlord to be paid by Tenant, Landlord hereby
leases and demises unto Tenant, and Tenant hereby does lease from Landlord that
certain real property commonly known as 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxxx, hereinafter more specifically described, for the terms, and at the
rentals, and upon the terms and conditions, hereinafter set forth:
1. PREMISES. The legal description of the real property leased and
demised by Landlord unto Tenant (hereinafter ("Premises") is attached as
Exhibit "A," is leased and demised together with all easements, rights and
privileges appurtenant thereto, including the right to use adjoining parking
areas, driveways, road, alleys and means for ingress and egress.
Except as specifically provided herein, the Premises is being rented to
Tenant in an "as is" condition.
2. TERM. The original (the "Original Term") of this Lease, and the
accrual of rents hereunder, shall commence on the following date: July 18,
1997 (hereinafter referred to as the "Commencement Date") and the term shall
extend for a period of five (5) years thereafter, ending at 11:59 p.m. on the
following date: July 17, 2002 ("Expiration Date"). Tenant may renew the term
of this Lease for an additional period of five (5) years (the "Renewal Term"
and together with Original Term, the "Term") by providing Landlord with notice
of such renewal one hundred eighty (180) days prior to the expiration of the
Original Term.
3. USE. The Premises may be used and occupied for any lawful purpose.
Except as specifically provided herein, Tenant, at Tenant's expense, shall
comply with all laws, ordinances, rules and regulations of governmental
authorities, now in force or which may hereafter be in force, which shall
impose any duty upon Landlord or Tenant with respect to the use, occupation or
alteration of the Premises.
4. RENT. Tenant does hereby covenant and agree to pay to Landlord, for
the use and occupancy of the Premises, without demand, set-off, or deduction,
at the times and in the manner hereinafter provided, $10,000.00 per month
during the Original Term and any renewal Term ("Base Rent"); provided that,
upon each anniversary of the date hereof during the Original Term and any
Renewal Term, the Base Rent shall be increased by three percent (3%) of the
prior year's Base Rent such that the Base Rent for each year of the Original
Term and any Renewal Term shall be as set forth in the Rental Rider attached
hereto and made a part hereof. Such Base Rent, as increase, shall be paid in
advance, without notice or invoice from Landlord, on the first day of each and
every
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month during the Term hereof. In the event such Base Rent shall be determined
under the provisions of paragraph 2 hereof to commence on a day other than the
first day of a month or the Term shall end on other than the last day of a
month, then Base Rent shall be prorated accordingly.
In addition to the Base Rent herein reserved, Tenant shall also pay the
amount of any use or sales tax on said rental imposed by the State of Virginia
and any federal or local government, which taxes and other assessments shall be
paid at the same time and in the same manner as each payment of rent.
5. INTENTIONALLY OMITTED.
6. TAXES AND ASSESSMENTS. During the Term, Tenant shall pay any and all
ad valorem taxes and assessments for Tenant's personalty and business equipment
on the Premises. Tenant shall also pay as additional rent all ad valorem real
property taxes and general and special assessments levied or assessed against
the Premises. Upon receipt of each xxxx for any tax or assessment against the
Premises, Landlord shall advise Tenant in writing of the amount of such tax or
assessment, and Tenant shall pay such tax or assessment to Landlord together
with an in addition to and as a part of the monthly installment of Base Rent
next becoming due. Tenant's share of any tax or assessment for the year in
which the Lease Term commences shall be prorated from the Commencement Date,
and Tenant's share of any such tax or assessment for the year in which the
Lease Term ends shall be prorated from the Commencement Date, and Tenant's
share of any such tax or assessment for the year in which the Lease Term ends
shall be prorated to the date upon which the Lease term ends. Landlord
represents and warrants that Landlord has no knowledge of any present or future
general or special assessments which are or will be levied against the
Premises, provided that Tenant acknowledges that general or special assessments
may be levied against the Premises in the future.
Tenant shall not be liable for increases in real estate taxes attributable
to additional improvements to the Premises that are constructed by or at the
request of Landlord after the first tax year included within the terms of this
Lease, unless the additional improvements are constructed for Tenant's sole
benefit.
There shall be excluded from the tax xxxx to which Tenant contributes
income, excess profits, estate, single business, inheritance, succession,
transfer, franchise, capital or other tax assessments upon Landlord or the Base
Rent payable under this Lease.
7. MAINTENANCE. Landlord shall not be called upon and shall have no
obligation to make any repairs, improvements or alterations whatsoever to the
Premises except that during the term of this Lease, Landlord shall at
Landlord's sole cost and expense, repair and maintain the exterior walls (but
not storefronts, glass, plate glass, doors), foundations, roof, roof membrane,
load bearing walls and floor slabs in good structural repair; provided,
however, that Landlord shall not be required to make any repairs to any part of
the Premises until written notice of the need for such repairs is given to
Landlord by Tenant. If Landlord fails to prosecute such maintenance and
repairs diligently and continuously until completion, Tenant may prosecute such
maintenance and repairs itself and Landlord shall reimburse Tenant for the
reasonable cost of such repairs within seven (7) days of receiving written
notice of the same. It is further provided that Landlord shall not be liable
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for or required to make any repairs, or perform any maintenance, to or upon the
Premises which are required by, related to or which arise out of negligence or
willful misconduct of and by Tenant, its employees, agent, invitees, licensees
or customers, in which event Tenant shall be solely responsible therefor; and
if such repairs are undertaken by Landlord, it shall be solely at the expense
of Tenant and Tenant shall pay said amounts within thirty (30) days of receipt
of billing therefor, or in the alternative shall be considered in default under
the terms of this Lease.
Except to the extent caused by the negligence or willful misconduct of
Landlord, Landlord's employees, agents, contractors, invitees or licensees,
Tenant shall repair, service, keep and maintain the remaining portions of the
Premises in good condition and repair and shall replace all glass in the
windows and doors broken during the Lease term. Tenant agrees to make repairs
promptly as they may be needed at Tenant's expense. If Tenant fails to
prosecute such maintenance and repairs diligently and continuously until
completion, Landlord may prosecute such maintenance and repairs itself and
Tenant shall reimburse Landlord for the reasonable cost of such repairs within
seven (7) days of receiving written notice of the same.
8. ALTERATIONS. Tenant shall not make any exterior or structural
alterations in any portion of the Premises, nor any alterations in the interior
of the Premises without, in each instance, first obtaining the written consent
of Landlord, which consent shall not be unreasonably withheld. Tenant shall be
permitted to make interior nonstructural alterations, additions and
improvements costing less than $50,000.00 without Landlord's prior consent.
All alterations or additions made by Tenant shall comply with all laws, codes,
rules and regulations of governmental authorities. Any plans, specifications
or work drawings approved by Landlord shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency,
or compliance with all laws, codes, rules and regulations of governmental
authorities. Upon expiration and termination of this Lease all installations,
improvements and alterations made by Tenant, including electric lighting
fixtures installed by Tenant, and all other improvements, replacements, repairs
and alterations to the Premises made by Tenant during the term of this Lease,
shall remain a part of the Premises as the property of Landlord.
9. SURRENDER OF PREMISES. Tenant shall, upon expiration of the Term
hereof, or any earlier termination of this lease for any cause, surrender to
Landlord the Premises in good condition and repair with all glass and all
windows and doors intact, ordinary wear and tear excepted. Any trade fixtures,
business equipment, inventory, trademarked items, signs, and other removable
personal property installed in or on the Premises by Tenant at its expense
("Tenant's Property"), shall remain the property of the Tenant. Landlord
agrees that Tenant shall have the right at any time or from time to time, to
remove any and all of Tenant's Property. Tenant, at its expense, shall
immediately repair any damage occasioned by the removal of Tenant's Property
upon expiration or earlier termination of this Lease. At Landlord's request
upon expiration or termination of the Lease Term, Tenant shall be required to
remove any of Tenant's property as Landlord may designate, including but not
limited to floor coverings, trade and non-trade fixtures, and Tenant shall
repair and correct any damage caused by such removal. Tenant agrees that upon
the end of the Term or upon termination of this Lease, Tenant shall deliver up
the Premises to Landlord.
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10. QUIET ENJOYMENT. Landlord covenants that so long as Tenant pays the
rent reserved in this Lease and performs its agreements hereunder, Tenant shall
have the right to quietly enjoy and use the Premises for the Term hereof,
subject only to the provisions of the agreement.
11. LIENS. Tenant agrees that it will make full and prompt payment of all
sums necessary to pay for the cost of repairs, alterations, improvements,
changes or other work done by Tenant to the Premises and further agrees to
indemnify and hold harmless Landlord from and against any and all such costs
and liabilities incurred by Tenant, and against any and all mechanic's,
materialman's or laborer's liens arising out of or from such work or the cost
thereof which may be asserted, claimed or charged against the Premises.
Notwithstanding anything to the contrary in this Lease, the interest of
Landlord in the Premises shall not be subject to liens for improvements made by
or for Tenant whether or not the same shall be made or done in accordance with
an agreement between Landlord and Tenant, and it is specifically understood and
agreed that in no event shall Landlord or the interest of Landlord in the
Premises be liable for or subjected to any mechanic's, materialman's or
laborer's liens for improvements or work made by or for Tenant; and this Lease
specifically prohibits the subjecting of Landlord's interest in the Premises to
any mechanic's, materialman's, or laborer's liens for improvements made by
Tenant or for which Tenant is responsible for payment under the terms of this
Agreement. In the event any notice or claim of lien shall be asserted of
record against the interest of Landlord in the Premises on account of or
growing out of any improvement or work done by or for Tenant, or any person
claiming by, through or under Tenant, or for improvements or work the cost of
which is the responsibility of Tenant, Tenant agrees to have such notice or
claim of lien canceled and discharged of record as a claim against the interest
of Landlord in the Premises (either by payment and satisfaction or by removal
by transfer to bond or deposit as permitted by law) within ten (10) days after
notice to Tenant by Landlord, and in the event Tenant shall fail to do so
Tenant shall be considered in default under this Lease. Any fees and costs
incurred by Landlord resulting from a lien as described in this paragraph shall
be paid by Tenant, including reasonable attorneys' fees.
12. INSPECTION AND REPAIR. Landlord or its representatives shall have the
right during regular business hours to enter upon the Premises for the purpose
of inspection, to show the Premises to prospective purchasers, prospective
tenants and lenders, or for the purpose of making or causing to be made any
repairs or otherwise to protect its interest, but the right of Landlord to
enter, repair or do anything else to protect its interest, or the exercise or
failure to exercise said right, shall in no way diminish Tenant's obligations
or enlarge Landlord's obligations under this Lease, or affect any right of
Landlord, or create any duty or liability by Landlord to Tenant or any third
party. In the event Landlord does enter the Premises for any reason
whatsoever, Landlord shall use Landlord's best effort to minimize interference
with the operation of Tenant's business.
13. UTILITIES. Tenant shall pay all costs and expenses for gas, water,
electricity, heat, cooling, sewerage, phone, garbage and trash, and any and all
other utilities furnished to or used in connection with the Premises for any
purpose whatsoever during the Term of this Lease, promptly as each thereof
shall become due and payable; Tenant's failure to so pay utilities costs and
expenses shall constitute an event of default hereunder.
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14. DAMAGE TO PREMISES. In the event the Premises or a portion thereof
are rendered untenantable by fire or other casualty, Landlord shall have the
option of terminating this Lease or rebuilding the Premises, and in event of
such casualty written notice of the election by Landlord shall be given to
Tenant within thirty (30) days after the occurrence of such casualty. In the
event Landlord elects to rebuild the Premises, the Premises shall be restored
to its former condition within one hundred sixty (160) days, during which time
Base Rent and all other charges payable hereunder shall be payable only for the
portion of the Premises which remains tenantable (on a pro rata square footage
basis). In the event the repair and/or rebuilding of the Premises shall not be
substantially completed within such one hundred sixty (160) day period, Tenant
may elect to terminate this Lease upon five (5) days written notice. In the
event Landlord or Tenant elect to terminate this Lease, the rent shall be paid
to and adjusted as of the date of such casualty, and the Term of this Lease
shall then expire and this Lease shall be of no further force or effect and
Landlord shall be entitled to sole possession of the Premises.
15. INSURANCE. Tenant agrees to carry, or cause to be carried, at its
expense, during the Term hereof workmen's compensation insurance and public
liability insurance on the Premises and any adjacent parking or common areas,
providing coverage of not less than $1,000,000 for personal injury or death
arising out of any one occurrence, and for property damage insurance in an
amount of not less than $1,000,000 for damage to property arising out of any
one occurrence.
Tenant further agrees to carry, or cause to be carried, at its expense,
during the Term hereof insurance for fire, extended coverage, vandalism and
malicious mischief, sprinkler leakage and all other perils of direct physical
loss or damage, insuring the improvements constituting the Premises and all
appurtenances thereto (excluding Tenant's Property) for the full insurable
value thereof in the reasonable opinion of the parties, naming Landlord as the
insured.
Tenant further agrees to carry at its expense public liability insurance
on the leased Premises during the Term hereof, covering both Landlord and
Tenant as insureds, with terms and company satisfactory to Landlord, for limits
of not less than $1,000,000 combined single limit for personal injury or death
arising out of any one occurrence including property damage.
As to any policy to be carried by Tenant hereunder, said policy shall
provide that Landlord and Tenant shall be given a minimum of thirty (30) days
written notice by registered mail by the insurance company prior to
cancellation, termination or change in such insurance. As to any policy to be
carried by Tenant hereunder, Tenant shall provide Landlord with copies of the
policies or certificates evidencing that such insurance is in full force and
effect and stating the terms thereof. If Tenant fails to comply with this
sub-paragraph, Landlord shall have the right but not the obligation to obtain
any such insurance and to pay the premiums therefor, and in such event the
entire amount of such premiums shall be immediately due and payable by Tenant
to Landlord.
16. INDEMNIFICATION. Tenant hereby indemnifies and holds Landlord
harmless from and against any and all claims, demands, liabilities and
expenses, including attorneys' fees, arising from, or in connection with, or in
any way related to Tenant's use of the Premises or from, or in connection with,
or in any way related to any act, or any omission to act, in or about the
Premises by Tenant or its agents, customers, invitees, employees or
contractors, or from any breach or default by Tenant
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of this Lease (including a breach of any of Tenant's representations and
warranties contained hereto, except to the extent caused by Landlord's
negligence or willful misconduct in the event any action or proceeding shall be
brought against Landlord by reason of any such claim, Tenant shall defend the
same at Tenant's expense by counsel reasonably satisfactory to Landlord.
Landlord hereby indemnities and holds Tenant harmless from and against any
and all claims, demands, liabilities and expenses, including attorneys' fees,
arising from, or in connection with, or in any way related to Landlord's
obligations, actions or from, or in connection with, or in any way related to
any act, or any omission to act (where such a duty to act exists), in or about
the Premises by Landlord or its agents, employees, contractors or invitees, or
from any breach or default by Landlord of this Lease (including a breach of any
of Landlord's representations and warranties contained hereof), except to the
extent caused by Tenant's negligent or willful misconduct. In the event any
action or proceeding shall be brought against Tenant by reason of any such
claim, Landlord shall defend the same at Landlord's expense by counsel
reasonably satisfactory to Tenant. Notwithstanding the foregoing, Landlord
shall not be liable for injury or damage caused to any person or property by
reason of the failure of Tenant to perform any of its covenants or agreements
hereunder, nor for such damages or injury caused by reason of any defect in
the Premises now or in the future existing, or for any damages or injury caused
by reason of any present or future defect in the plumbing, wiring or piping of
the Premises except to the extent such defects (i) are caused by the willful or
grossly negligent conduct of Landlord, its agents, contractors, invitees and
employees, or (ii) exist in elements of the Premises which Landlord has the
obligation to maintain and repair pursuant to Section 7.
The parties' obligations to indemnify shall include reasonable
investigation costs and all other reasonable costs, expenses and liabilities
from the first notice that any claim or demand is to be made or may be made.
The parties acknowledge that the foregoing provisions of this paragraph shall
apply and become effective from and after the date Tenant or its agents enter
the leased Premises to undertake activities, including but not limited to
installation of interior improvements, permitted hereunder, even if such
activities are prior to the Commencement Date.
17. ASSIGNMENT Tenant acknowledges that Tenant's agreement to operate in
the leased Premises was a primary inducement and precondition to Landlord's
agreement to lease the Premises to Tenant. Accordingly, Tenant shall not
assign the Lease nor any right hereunder, nor let or sublet all or any part of
the Premises, nor suffer or permit any person or corporation to use any part of
the Premises, without first obtaining the express prior written consent of
Landlord, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, however, Tenant shall have the right to sublet, assign, or
otherwise transfer its interest in this Lease to any parent, affiliate, or
operating subsidiary of Tenant, subsidiary of Tenant's parent, or to a
corporation with which it may merge or consolidate or to a company, entity or
individual that purchases all or substantially all of the assets or common
stock of Tenant either in one transaction or a series of transactions, without
Landlord's approval, written or otherwise; provided no such assignment or
sublet, in Landlord's reasonable opinion, shall be permitted nor valid unless
the assignee or sublessee is sufficiently financially solvent at the time of
the assignment or sublet to satisfy all obligations assigned to it by Tenant,
including all obligations with respect to this Lease assigned to it; and
provided further that, in the event of any such subletting, assignment or other
transfer, Tenant shall not be released from any
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liability hereunder and shall remain liable hereunder notwithstanding such
subletting, assignment, or other transfer.
Notwithstanding any portion of the foregoing to the contrary, in the event
that this Lease is attempted to be assumed under federal bankruptcy law by a
trustee in bankruptcy for Tenant or by Tenant as debtor in possession
(hereinafter collectively referred to as "Trustee") and there exists a default
as defined under this Lease or such state of facts which with the giving of
notice and the passage of time would constitute a default (such state of facts
being hereinafter referred to as "default"), such attempted assumption shall
not be effective unless Trustee; (i) cures, or provides adequate assurance that
it will promptly cure such default, and (ii) compensates, or provides adequate
assurance that it will promptly compensate Landlord for any actual pecuniary
loss to Landlord resulting from such default, and (iii) provides adequate
assurance of future performance of Tenant's obligations and covenants under
this Lease. For purposes of this provision, "adequate assurance of feature
performance" shall be deemed to include, without limitation, assurance of
source of rental and other consideration due under this Lease, and that
assumption or assignment of this Lease shall not breach any provision in any
other lease or financing agreement relating to the Premises.
If Landlord shall not be permitted to terminate this Lease as provided
herein because of the provisions of the Federal Bankruptcy code (currently
Title II of the United States Code), the Trustee agrees promptly, within no
more than fifteen (15) days upon request by Landlord to the bankruptcy court,
to assume or reject this Lease, and Tenant on behalf of itself and any Trustee
agrees not to seek or request any extension or adjournment of such time
requirement In no event after the assumption of this Lease by Trustee shall any
existing default remain uncured for a period in excess of ten (10) days.
Landlord shall have no obligation to provide Trustee with any service or
utilities unless Trustee shall have paid and is current on all payments and
obligations under the Lease Agreement, including but not limited to rental
obligations.
18. SUBORDINATION, NON-DISTURBANCE, RIGHTS OF SECURITY INSTRUMENT HOLDER.
18.1 Subordination. All rights and interests of Tenant hereunder are and
shall be and remain subject, subordinate and inferior to all mortgages, trust
deeds, ground leases or security instruments (all of which shall be referred to
herein as "Security Instrument"), heretofore or hereafter given and encumbering
the Premises, or any part thereof, and shall likewise be subordinate and
inferior to all renewals, modifications, consolidations, replacements and
extensions of any such Security Instrument and the right of the holder of any
such Security Instrument shall at all times be and remain prior and superior to
all-rights and interests of Tenant. This provision shall operate as a
subordination agreement with respect to all such Security Instruments and all
renewals, modifications, consolidations, replacements and extensions thereof.
If the holder of any such Security Instrument or any person, firm or
corporation agreeing to make a loan secured by a Security Instrument on the
Premises shall require confirmation of any subordination for which provision is
herein made or a separate subordination agreement with respect to any
transaction, Tenant shall execute such confirmation, estoppel certificate or
subordination agreement in the form required by such Security Instrument holder
or other person, firm or corporation agreeing or proposing to make a loan
secured by a Security Instrument on the Premises, and the execution of the same
shall not
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diminish or affect the liability of Tenant hereunder or any other party
responsible for or guaranteeing the obligations of Tenant under this Lease.
Failure of Tenant to execute such documentation upon request of Landlord shall
constitute an event of default under this Lease. In the event any proceedings
are brought for foreclosure, or in the event of the exercise of the power of
sale under any Security Instrument, made by Landlord covering the Premises,
Tenant shall attorn to the Security Instrument Holder or purchaser upon any
such foreclosure or sale and recognize such purchaser as the Landlord under
this Lease, provided that Tenant's peaceable possession of the Premises or its
rights under the Lease will not be disturbed on account thereof.
18.2 Non-Disturbance. Notwithstanding the provisions of subparagraph
18.1, Landlord agrees to obtain a Non-Disturbance and Attornment Agreement from
its current Security Interest Holders, if any, and deliver same to Tenant
within thirty (30) days of the date hereof and from any future tender on or
before obtaining financing from such lender in a form reasonably satisfactory
to Tenant. The delivery of a fully executed Non-Disturbance and Attornment
Agreement shall be a condition precedent to the effectiveness of this Lease and
if said Non-Disturbance and Attornment is not so delivered within the thirty
(30) day period, Tenant may at its option terminate this Lease by written
notice to Landlord. Tenant agrees to cooperate with Landlord in Landlord's
efforts to obtain the Non-Disturbance and Attornment Agreement.
19. DEFAULT. In the event Tenant shall (a) fail to make any rental or
other payment due hereunder (all of such payment obligations being referred to
as "monetary obligation") within five (5) days after written notice that the
same is due, or (b) be adjudged bankrupt, or (c) make an assignment for the
benefit of its creditors, or (d) have its leasehold estate taken upon execution
against Tenant, or (e) abandon the Premises during the Term hereof, or
(f) breach or fail to perform any of the agreements herein (other than a
monetary obligation), and shall fail to cure such non-monetary obligation breach
within thirty (30) days after written notice from Landlord, except that this
thirty (30) day period shall be extended for a reasonable period of time if the
alleged default is not reasonably capable of cure within such thirty (30) day
period and Tenant proceeds to diligently cure the default, such event shall
constitute an event of default and may, at Landlord's option, constitute a
premature termination. Tenant hereby waives any requirement for written notice
of monetary obligation default.
Upon the occurrence and continuance of any one or more events of default
specified herein, Tenant shall become a tenant at sufferance, and Landlord, at
its option and at any time thereafter, may pursue, exercise and enforce either
remedy 19.1 or 19.2 below, without notice or demand except as hereinafter
provided:
19.1 Enter upon and take possession of the leased Premises, using such
force or means as may be necessary and legally permitted, and dispossess and
remove all persons. Upon said entry by Landlord, Tenant shall at once
surrender possession of the Premises and shall be liable in damages and abject
to equitable action for failure to do so. Surrender of the Premises shall not
in and of itself constitute a termination of this Lease nor relieve Tenant from
any of the terms, covenants, and conditions hereof. After resuming possession
of the Premises, Landlord may:
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19.1.1 Relet, as Tenant's agent and without terminating this Lease, the
Premises for such amounts and upon such terms and conditions as Landlord may
deem best under the circumstances, whereupon Tenant shall be liable to Landlord
in general damages for the difference between the rentals and other charges
stipulated to be paid by Tenant and what Landlord is able to recover from a
re-letting, after, deducting any attorney's fees, commissions and other
reasonable expenses paid by Landlord with respect to such re-letting; or
19.1.2 Terminate this Lease, whether or not the leased Premises or any
part thereof shall have been relet, by written notice to Tenant, whereupon this
Lease shall end; provided, however, that no such termination of this Lease
shall relieve Tenant of its liability and obligations under this Lease incurred
prior to such termination. Upon such termination, Tenant shall be immediately
liable for the damages, present and prospective, which were the necessary and
direct result of Tenant's breach, as well as for any special damages as may
have resulted from such breach. All amounts and averages due and payable to
Landlord by Tenant shall bear interest at fifteen percent (15%) per annum.
19.2 Treat the Lease as remaining in existence, curing Tenant's default by
performing or paying the obligation which Tenant has breached, all sums paid or
expenses incurred by Landlord directly or indirectly incurring Tenant's
default, which amounts shall become immediately due and payable and shall bear
interest at the highest rate permitted by law from the date of disbursement b
Landlord until paid by Tenant. If the breach consists of a failure to pay the
rent stipulated in this Lease and Landlord elects to treat the Lease as
remaining in existence, Landlord can take such action as is necessary to
recover the rent due as each installment matures or for the whole amount at the
end of the Term.
Furthermore, Landlord may exercise any and all rights and privileges and
pursue any additional remedies that Landlord may have under the laws of either
the State of Virginia or the United States of America that are available in
conjunction with whichever of the above described remedies is chosen, except
that under no circumstances, may Landlord accelerate rent or exercise the right
of distrain with respect to Tenant's furniture, fixtures, supplies, equipment,
inventory and Tenant's property.
The remedies for which provision is made in this paragraph shall not be
exclusive and in addition thereto Landlord may pursue such other remedies as
are provided by law in the event of any breach, default or abandonment by
Tenant. In any event, and irrespective of any option exercised by Landlord,
Tenant agrees to pay and the Landlord shall be entitled to recover all costs
and expenses incurred by Landlord, including reasonable attorneys' fees, in
connection with collection of rent or damages or enforcing other rights of
Landlord in the event of a breach of default or abandonment by Tenant,
irrespective of whether or not Landlord elects to terminate this Lease by
reason of such a breach, default or abandonment. Tenant hereby expressly
waives any and all rights of redemption, if any, granted by or under any
present or future law in the event Tenant shall be evicted or dispossessed for
any cause, or in the event Landlord shall obtain possession of the Premises by
virtue of the provisions of this Lease, or otherwise.
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Any and all sums due under this Agreement from Tenant to Landlord and not
paid on the date due shall bear interest at the rate of fifteen percent (15%)
per annum; and if any payment of rent is not received within thirty (30) days
after the date due, Tenant shall be assessed an amount of not more than $100.00
per month for each month of delinquency, in addition to other sums owing
hereunder.
20. WAIVER OR ESTOPPEL. The failure of Landlord to insist, in any one or
more instances, upon strict performance of any covenants or agreements of this
Lease, or exercise any option of Landlord herein contained, shall not be
construed as a waiver or relinquishment of any right or remedy of Landlord
hereunder and she not be deemed a waiver of any subsequent breach or default by
Tenant of the covenants or conditions herein. Receipt of rent by Landlord,
with knowledge of the breach of any covenant or agreement hereof, shall not be
deemed a waiver of such breach and no waiver by Landlord of any provision
hereof shall be deemed to have been made unless expressed in writing and signed
by Landlord.
21. CONDEMNATION.
21.1 In the event a part of the Premises be (i) taken by reason of the
exercise of the right of eminent domain by any public or quasi-public
authority, (ii) subject to mandatory environmental remediation measures or
(iii) conveyed in settlement of threatened eminent domain proceedings
(collectively hereinafter referred to as a "taking"), there shall be an
equitable abatement of the rental herein provided. Said equitable abatement
shall result in the decrease of rental payable by the percentage decrease in
the square footage of the Premises resulting from the taking. If the
proceeding shall result in the taking of all of the Premises or such a
substantial and material portion of the Premises as will in the reasonable
judgment of the parties preclude Tenant from operating Tenant's business from
the Premises, then this Lease and the terms hereof shall cease and expire and
both parties hereto shall hereinafter be released from any obligation
hereunder.
21.2 Landlord reserves unto itself, and Tenant assigns to Landlord, all
right to damages accruing on account of any taking or condemnation of any part
of the Premises, or by reason of any act of any public or quasi-public
authority for which damages are payable; provided, however, that Tenant may
recover from the condemning authority an amount payable for business damages.
Tenant agrees to execute such instruments of assignment as may be required by
Landlord, to join with Landlord in any petition for the recovery of damages, if
requested by Landlord, and to turn over to Landlord any such damages that may
be recovered in any such proceeding. Landlord does not reserve to itself, and
Tenant does not assign to Landlord, any damages payable for Tenant's Property
installed by Tenant at its cost and expense and which are not to remain part of
the realty.
22. DEPOSITS AND ADVANCES. Any funds transferred by Tenant to Landlord as
a deposit or advance pursuant to the terms of this Lease, or any exhibit,
addendum or modification hereto, may be commingled with other funds of Landlord
and need not be placed in trust, deposited in escrow or otherwise held in a
segregated account. In addition, if any sum or sums of money shall become
payable by Tenant to Landlord pursuant to the terms of this Lease, or any
exhibit, addendum or modification hereto, or by any law, ordinance or
regulation affecting this Lease, Landlord shall
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have the right to apply any deposits or advances theretofore made by Tenant
against such sums due by Tenant to Landlord.
23. LIEN WAIVER. Landlord hereby waives any contractual, statutory or
other Landlord's lien on Tenant's furniture, fixtures, supplies, equipment,
inventory and Tenant's Property and Landlord shall agree to execute a Landlord
Waiver of Lien Agreement for Tenant's future and current lenders (the
"Lenders") in a form reasonably satisfactory to Landlord and Lenders.
24. ENVIRONMENTAL LAWS.
24.1 Notwithstanding any other provision of this Agreement, and in
addition to any and all other Agreement requirements, and any other covenants
and warranties of Tenant, Tenant hereby expressly warrants, guarantees, and
represents to Landlord, upon which Landlord expressly relies, that Tenant is
knowledgeable of any and all Federal, State, regional, and local governmental
laws, ordinances, regulations, orders and rules, without limitation, that are
now or may hereafter come into being, which govern or which in any way, apply
to the direct or indirect results and impacts to the environment and natural
resources due to, or in any way resulting from, the conduct by Tenant of its
operations pursuant to or upon the Premises. Tenant expressly represents,
covenants, warrants, guarantees, and agrees that it shall comply with all
applicable Federal, State, regional, and local laws, regulations and ordinances
protecting the environment and natural resources including, but not limited to,
the Federal Clean Water Act, Safe Drinking Water Act Clean Air Act, Resource
Conservation Recovery Act, Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("Superfund"), and all rules and regulations
promulgated or adopted thereunder as same may from time to time be amended.
Tenant further expressly represents, covenants, warrants, guarantees, and
agrees that it shall fully comply with all State and local laws, ordinances,
rules, and regulations protecting the environment.
24.2 Tenant hereby expressly assumes and accepts full responsibility and
liability for compliance with all such governmental laws and regulations in the
handling and disposal of any and all hazardous waste and/or toxic materials,
and all pollutants or contaminants of any kind, resulting from or arising out
of Tenant operations conducted on the Premises, and Tenant shall, prior to
commencement of any such operations pursuant to this Agreement, secure any and
all permits, and properly make all necessary notifications as may be required
by any and all governmental agencies having jurisdiction over parties or the
subject matter hereof. Tenant further represents, warrants, guarantees, and
covenants to Landlord, upon which Landlord hereby expressly relies, that
Tenant, its employees, agents, contractors, and all persons working for, or on
behalf of, Tenant have been fully and properly trained in the handling of all
such hazardous and toxic waste materials, and other pollutants and
contaminants, and that such training, complies with any and all applicable
Federal, State and local laws, ordinances, regulations, rulings, orders, and
standards which are now or are hereafter promulgated.
24.3 Tenant hereby expressly agrees to indemnify and hold Landlord
harmless from and against any and all liability for fines and physical damage
to property or injury or deaths to persons, including reasonable expense and
attorney's fees, arising from or resulting out of, or in any way caused by,
Tenant's failure to comply with any and all applicable Federal, State, and
local
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laws, ordinances, regulations, rulings, orders and standards, now or hereafter,
promulgated for the purpose of protecting the environment. Tenant understands
that this indemnification is in addition to and is a supplement of Tenant's
indemnification agreement set forth in paragraph 16 of this Agreement and
Tenant in full understanding of the broad extent of this indemnification hereby
expressly acknowledges that it has received full and adequate consideration
from Landlord to legally support this indemnification agreement. This clause
shall survive termination of this Agreement; provided, however, that Tenant's
obligations hereunder shall not apply to (i) any matter not arising out of,
incident to or in connection with Tenant's activities under this Agreement and
(ii) any condition existing on the Premises prior to the date hereof.
24.4 Violation of any part of the foregoing provisions or disposition by
Tenant of any sanitary waste, pollutants, contaminants, hazardous waste, toxic
waste, industrial cooling water, sewage or any other materials in violation of
the provisions of this section of this Agreement shall be deemed to be a
default under this Agreement and, unless cured within ten (10) days of receipt
of this notice from Landlord or, if said default cannot be completely cured
within that period and uses its best efforts to completely cure said default as
expeditiously as possible, shall be deemed to be a material breach as provided
for under this Agreement, and shall be grounds for termination of this
Agreement, and shall also provide Landlord grounds for taking whatever other
action it may have in addition to termination based upon default as provided
for under this Agreement. Tenant shall be strictly liable for, and hereby
expressly assumes all responsibility for all citations, fines, environmental
controls and monitoring, clean-up and disposal, restoration and collective
measures resulting from or in any way connected with the improper use,
handling, storage, and/or disposal of all pollutants or contaminated materials,
as same are defined by law, by Tenant or by Tenant's employees, invitees,
suppliers or service or furnishers of materials or any other person whomsoever,
regardless of whether or not a default notice has been issued and
notwithstanding any other obligations imposed upon Tenant pursuant to the terms
of this Agreement. All such remedies of Landlord with regard to environmental
requirements as set forth herein shall be deemed cumulative in nature and shall
survive termination of this Agreement.
24.5 With respect to the Premises, Landlord hereby adopts the
environmental representations and warranties of the Company (as defined in the
Purchase Agreement) made in Section 5.22 of that certain Stock Purchase
Agreement dated July 17, 1997 ("Purchase Agreement"), between Xxxx X. Xxxxxxx
and Xxxxxxx Xxxxxxx, as Sellers, and National Equipment Services, Inc., as
Purchaser, which representations and warranties shall survive for the term
stated in the Purchase Agreement.
25. PUBLIC ACCOMMODATION. Tenant acknowledges that the Premises may
constitute a place of public accommodation or a commercial facility under Title
III of the Americans with Disabilities Act (the "ADA") and that the ADA is
applicable to both an owner and lessee of a place of public accommodation or
commercial facility. Tenant further acknowledges that, under the ADA, any
structural alteration to the Premises must comply with accessibility standards
set forth in the rules promulgated by the Department of Justice, 28 C.F.R.
Section 36. 101, et. seq. In the event Tenant makes any structural alteration
to the Premises which would require compliance with Title III of the ADA and
the accessibility standards promulgated by the Department of Justice, Tenant
agrees to design and build such structural alterations and to make any other
changes to any portion of the
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building common area or parking area in which the Premises are located or which
are affiliated with the Premises which are necessitated by such structural
alterations, so as to comply with the ADA and the accessibility standards.
Tenant hereby agrees to indemnify and hold Landlord harmless from and against
any and all liabilities, claims, demands, damages, expenses, fees, fines,
penalties, Suits, proceedings, actions, and causes of action of any and every
kind and nature arising or growing out of or in any way connected with any
structural alteration of the Premises by Tenant.
26. ATTORNEYS' FEES. In the event that at any time during the Term of
this Lease either Landlord or Tenant shall institute any action or proceeding
against the other relating to the provisions of this Lease, or any default
hereunder, the unsuccessful party in such action or proceeding agrees to
reimburse the successful party for the reasonable expenses of attorneys' fees
and paralegal fees and disbursements incurred therein by the successful party.
Such reimbursement shall include all legal expenses incurred prior to trial, at
trial, and at all levels of appeal and post-judgment proceedings.
27. NOTICES. Notices and demands required, or permitted, to be sent to
those listed hereunder shall be sent by certified mail, return receipt
requested, postage prepaid, or by Federal Express or other reputable overnight
courier service and shall be deemed to have been given upon the date the same
is postmarked if sent by certified mail or the day deposited with Federal
Express or such other reputable overnight courier service, but shall not be
deemed received until one (1) business day following deposit with Federal
Express or other reputable overnight courier service or three (3) days
following deposit in the United States Mail if sent by certified mail to
address shown below, and addressed to:
LANDLORD: TENANT:
c/o Xxxx Xxxxxxx MST Enterprises, Inc.
0000 Xxxx xx Xxxxxx Xxxxx c/o National Equipment Services, Inc.
Xxxxxxxx Xxx, XX 00000 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
or at such other address requested in writing by either party upon thirty (30)
days notice to the other party.
28. REMEDIES. All rights and remedies of Landlord and Tenant herein
created or otherwise extending at law are cumulative, and the exercise of one
or more rights or remedies may be exercised and enforced concurrently or
consecutively and whenever and as often as deemed desirable.
29. SUCCESSORS AND ASSIGNS. All covenants, promises, conditions,
representations and agreements herein contained shall be binding upon, apply
and inure to the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
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30. HOLDING OVER. If Tenant or any party claiming under Tenant remains in
possession of the Premises or any part thereof after any termination or
expiration of this Lease, Landlord, in Landlord's sole discretion, may treat
such holdover as an automatic renewal of this Lease for a month-to-month
tenancy subject to all the terms and conditions provided herein.
31. INTERPRETATION. The parties hereto agree that it is their intention
hereby to create only the relationship of Landlord and Tenant, and no provision
hereof, or act of either party hereunder, shall ever be construed as creating
the relationship of principal and agent, or a partnership, or a joint venture
or enterprise between the parties hereto.
32. ESTOPPEL. At any time and from time to time, either party, upon
request of the other party, will execute, acknowledge and deliver an
instrument, stating, if the same be true, that the Lease identified in said
instrument is a true and exact copy of this Lease between the parties hereto,
that there are no amendments hereof (or stating what amendments there may be),
that the Lease is then in full force and effect and that, to the best of its
knowledge, there are no offsets, defenses or counterclaims with respect to the
payment of Base Rent reserved under the Lease or in the performance of the
other terms, covenants and conditions under the Lease on the part of Tenant or
Landlord, as the case may be, to be performed, and that as of such date no
default has been declared under the Lease by either party or if not specifying
the same. Such instrument will be executed by the other party and delivered to
the requesting party within fifteen (15) days of receipt, or else the
statements made in the proposed estoppel request shall be deemed to be correct.
33. CONSENT. Except as otherwise expressly stated, wherever in this Lease
Landlord is required to give its consent or approval, such consent shall mean a
consent in Landlord's sole discretion.
34. SEVERABILITY. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provisions shall remain in full force and
effect.
35. GOVERNING LAW AND VENUE. This Lease shall be governed by the laws of
the state in which the Premises is located. The venue of any action or suit
brought in connection herewith shall be in the county wherein the Premises are
located.
36. BROKERS. Landlord and Tenant represent and warrant one to the other
that they have not had any dealing with any real estate brokers or agents in
connection with the negotiation of this Lease. Landlord and Tenant indemnify
and hold each other harmless from and against any and all liability and cost
which Landlord or Tenant may suffer in connection with real estate brokers
claiming by, through or under either party seeking any commission, fee, or
payment in connection with this Lease.
37. TIME OF THE ESSENCE. Time shall be of the essence in interpreting the
provisions of this Lease.
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38. ENTIRE AGREEMENT. This Lease contains all of the agreements of the
parties hereto with respect to matters covered or mentioned in this Lease and
no prior agreement, letters, representations, warranties, promises or
understandings pertaining to any such matters shall be effective for any such
purpose. This Lease may be amended or added to only by an agreement in writing
signed by the parties hereto or their respective successors-in-interest.
39. AUTHORIZATION. Landlord and Tenant each represent and warrant to the
other, that it has full power and authority to enter into this Lease and to
perform all of its obligations hereunder and that the execution and delivery of
this Lease does not and will not violate or conflict with any provision of any
law, contract, mortgage, lien, lease, instrument, agreement, or judgment to
which it is a party or which is binding on such party. The person executing
this Lease on behalf of Tenant represents and warrants that they have been duly
authorized to execute this Lease on behalf of such organization.
40. RIGHT OF FIRST REFUSAL. Throughout the term of this Lease, in the
event Landlord shall receive a bona fide offer for the purchase of all or any
part of the Premises, and which offer Landlord desires to accept, Landlord
shall send notice thereof to Tenant as herein provided, setting forth the name
and address of the offeror and the terms of the offer. Tenant shall have
fourteen (14) days after receipt of such notice in which to elect to purchase
the Premises, or the part thereof subject to the offer, as the case may be, on
the same terms and conditions as contained in the offer, such election to be
exercised by notice in writing to Landlord as herein provided, sent within such
fourteen (14) day period. In the event Tenant shall elect to purchase such
property, such notice of election to purchase shall designate a date for the
closing of the transaction not less than thirty (30) days nor more than sixty
(60) days after the exercise of such option, and the closing shall be held on
the closing date so designated. In the event Tenant shall not elect to
purchase such property, then Landlord shall be permitted to consummate the sale
thereof to the offeror on the terms and conditions set forth in the notice of
such offer to Tenant, and in such event this right of first refusal shall
terminate and shall no longer be binding on the Premises or on the offeror and
Tenant shall record in the public records of the jurisdiction in which the
Premises are located a Notice of Termination of the right of first refusal. In
the event, however, that Landlord shall not consummate such sale to the offeror
on such terms and conditions, then the provisions hereof shall be fully
reinstated and the rights of Tenant hereunder shall be restored with respect to
any subsequent sale of the Premises, or any portion thereof.
41. MEMORANDUM OF LEASE. The Parties hereto agree to enter into a
Memorandum of Lease in the form attached hereto and agree that such Memorandum
of Lease shall be recorded in the public records of the jurisdiction in which
the Premises are located.
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IN WITNESS WHEREOF, the parties have executed this Lease on the day and
year first above mentioned.
TENANT:
MST Enterprises, Inc., a Virginia corporation
By: /s/ Xxxxx Xxxxxxx
___________________________
Name: Xxxxx Xxxxxxx
___________________________
Title: CEO
___________________________
LANDLORD:
/s/ Xxxx Xxxxxxx
___________________________
Xxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
___________________________
Xxxxxxx Xxxxxxx
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GUARANTEE
The undersigned Guarantor does hereby guarantee the full and faithful
performance by Tenant of all the terms, covenants and conditions of the
foregoing Lease.
NATIONAL EQUIPMENT SERVICES, INC., a Delaware
corporation
By: /s/ Xxxxx Xxxxxxx
_________________________________
Name: Xxxxx Xxxxxxx
_________________________________
Title: CEO
_________________________________
GUARANTOR
18
RENTAL RIDER
LEASE YEAR MONTHLY BASE RENT
----------------------------- -----------------
ORIGINAL TERM
-----------------------------
July __, 1997 - July __, 1998 $ 10,000
July __, 1998 - July __, 1999 $ 10,300
July __, 1999 - July __, 2000 $ 10,609
July __, 2000 - July __, 2001 $10,927.27
July __, 2001 - July __, 2002 $11,225.09
RENEWAL TERM #1 (IF RENEWED):
-----------------------------
July __, 2002 - July __, 2003 $11,592.74
July __, 2003 - July __, 2004 $11,940.52
July __, 2004 - July __, 2005 $12,298.74
July __, 2005 - July __, 2006 $12,667.70
July __, 2006 - July __, 2007 $13,047.73
