1
Exhibit 10(e)
STORE
LEASE
XXXXXXXXX VILLAGE ASSOCIATES,
LANDLORD
and
INTERSTATE GENERAL COMPANY L.P.
TENANT
for
XXXXX XX. X0 - X0 - X00
XXXXXXXXX XXXXXXX SHOPPING CENTER
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EXHIBITS
and
ATTACHMENTS
1. EXHIBIT A Site Plan
2. EXHIBIT B Tenant Fit-Up Specifications
3. EXHIBIT C Common Area Cost
4. EXHIBIT D Rules and Regulations
5. EXHIBIT E Lease Guaranty
6. EXHIBIT F Architectural Covenants
Declaration of Easements, Covenants, Conditions and Restrictions
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INDEX
Article Title Page
1 Demised Premises 1
2 Ingress and Parking 1
3 Tenant Pans 1
4 Lease Term 1
5 Fixed Minimum Rent 1
6 Percentage Rent 2
7 Deposit 3
8 Gross Sales Report 3
9 Audit 3
10 Definition of Gross Sales 4
11 Taxes and Assessments 4
12 Laws and Ordinances 5
13 Furniture and Fixtures 6
14 Repairs 6
15 Alterations 6
16 Damage 6
17 Eminent Domain 7
18 Roof Rights 7
19 Store Purpose 7
20 Signs 8
21 Hours of Lighting 8
22 Parking and Common Use Areas 8
23 Utilities: General 9
24 Utilities: Separate Meter 9
25 Trash 9
26 Keep Clean 9
27 Hold Harmless 9
28 Property at Tenant's Risk 9
29 Insurance Risk 10
30 Landlord Access 10
'31 Bankruptcy 10
32 Repossession 11
33 Reletting 11
34 Hold-Over 12
35 Rental Sign 12
36 Subordination 12
37 Notices 12
38 Assigns and Successors 12
39 Subletting and Assignment 12
40 Not Partners 13
41 Promotional Service 13
42 Continuous Occupancy 14
43 Maintenance and Operation of Common Areas 15
44 Cost of Maintenance and Operation of Common Areas 15
45 Insurance 15
46 Additional Rent 16
47 Quiet Enjoyment 16
48 Transfer of Landlord's Interest 16
49 No Waiver 17
50 Partial Invalidity 17
51 Rules and Regulations 17
52 Applicable Law 17
53 Captions and Headings 17
54 Joint and Several Liability 17
55 Modification 17
56 No Discrimination 17
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57 Delay 17
58 Store Front 17
59 Estoppel Certificates 17
60 Outparcel 17
61 Waiver of Jury Trial 18
62 No Option 18
63 Security Deposit 18
64 Broker's Commission 18
65 Master Lease/Addenda 18
66 Landlord's Right to Change or Alter Stores
or Shopping Center 18
67 Late Charges 27
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LEASE
THIS LEASE, made this 1st day of December, 1987, by and between
XXXXXXXXX VILLAGE ASSOCIATES, a Maryland Limited Partnership, 000 Xxxxxxxxx
Xxxxxxx Xxxxxx, Xx. Xxxxxxx, Xxxxxxxx 00000, hereinafter designated "Landlord,"
and INTERSTATE GENERAL COMPANY L.P. hereinafter designated "Tenant".
WITNESSETH:
DEMISED PREMISES. 1. In consideration of all Tenant's undertakings
hereinafter set forth, including payment of rent as hereinafter specified.
Landlord hereby leases to Tenant the building area located in a shopping
center development known as Xxxxxxxxx Village Shopping Center (herein called
the "Shopping Center"), at St. Xxxxxxx Parkway and Post Office Road, St.
Xxxxxxx, Maryland containing approximately 3,509 square feet, marked Exhibit
"A" and made a part hereof (herein called the "demised premises").
INGRESS & PARKING 2. Together with the building herein demised. the
Landlord grants to the Tenant a right of ingress and egress and free parking of
vehicles of the Tenant's invitees in the parking areas, and including a right
for ingress and egress to and from the adjoining public streets, highways
and/or service area.
FIT-UP REQUIREMENTS 3. The premises are to be constructed in accordance
with the attached Tenant fit-up specifications, marked Exhibit "B" and made a
part hereof, for which Landlord will provide "as-is" drawings. Any additional
Tenant requirements and costs over and above such Tenant fit-up specifications
set forth in Exhibit "B" will be the responsibility of and at the expense of
the Tenant. If the Landlord agrees to make any additions to or modifications of
Exhibit "B" at Tenant's expense, Tenant agrees to pay the Landlord in full
prior to construction of the additions or modifications. It is agreed that no
later than ten (10) days from date of execution of this Lease, the Tenant will
furnish to Landlord its partition, electric, telephone, and all other additions
or modifications to Tenant fit-up requirements beyond those set forth on
Exhibit "B", in drawings prepared by a certified architect or engineer suitable
to obtain a building permit from Xxxxxxx County. In the event Tenant fails to
comply with the aforesaid by the date specified, then Tenant shall pay to
Landlord, in addition to the rent commencing as of the Rent Commencement Date,
daily rent for the number of days' delay resulting from Tenant's failure to
comply with the provisions of this Article 3, computed at the rate of one-
thirtieth (1/30th) of the fixed monthly rental per day. The Landlord shall
approve or disapprove the drawings of Tenant's additions or modifications to
the fit-up requirements in writing within five (5) days of Tenant's submission
thereof. Within five (5) days of Landlord's approval of the drawings, Tenant
shall apply for a building permit and diligently pursue obtaining the building
permit from the appropriate authorities of Xxxxxxx County. In the event Tenant
fails for any reason to obtain a building permit within thirty-five (35) days
of the date of execution of this Lease, the Landlord shall complete the Demised
Premises in accordance with Exhibit "B" and tender to the Tenant for occupancy.
LEASE TERM 4a. The term of this Lease shall commence on the date
hereof. and shall commence on the date hereof, and shall continue 5 years. The
"Rent Commencement Date" shall be the first day of December, 1987, provided the
Landlord has completed the Demised Premises in accordance with its obligations
as same are set forth herein and the Demised Premises are tendered to Tenant
for occupancy On December 1, 1987.
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FIXED MINIMUM RENT 5. Commencing with the Rent Commencement Date, Tenant
shall pay as fixed minimum annual rental for the premises the sum of Thirty-
Four Thousand Two Hundred Twelve & 75/100 ($34,212.75) per annum, payable in
equal monthly installments of TWO THOUSAND EIGHT HUNDRED FIFTY-ONE & 06/100
Dollars ($2,851.06) each. All such monthly installments of the fixed minimum
rental shall be payable to Landlord, in addition, without previous notice or
demand therefor, and without diminution, counterclaim, deduction or set-off
whatsoever, with the first monthly installment to be due and payable upon
execution hereof, and each subsequent monthly installment to be due and payable
on the first day of each and every month following the Rent Commencement Date
during the term hereof. If the Rent Commencement Date is a date other than the
first day of a month, rent for the period commencing with and including the
Rent Commencement Date until the first day of the following month shall be
prorated at the rate of one-thirtieth (1/30th) of the fixed monthly rental.
PERCENTAGE RENT 6(a). Intentionally left blank.
6(b). Intentionally left blank.
6(c). Intentionally left blank.
6(d). Intentionally left blank.
6(e). The Fixed Minimum Annual Rental herein provided
for shall be adjusted by the Consumer Price Index as defined in Article 6(f).
Any such adjustment shall be accomplished by multiplying the Fixed Minimum
Annual Rental then in effect by a fraction, the numerator of which shall be the
Consumer Price Index as of the most recent date prior to the date of such
adjustment, and the denominator of which shall be the Consumer Price Index as
of the date nearest the beginning of such lease year (but in no event shall the
Fixed Minimum Annual Rent be reduced as a result of any such adjustment below
the Fixed Minimum Annual Rent specified in Article 5 hereof), and the increased
Fixed Minimum Annual Rental thereby established shall continue in effect as the
Fixed Minimum Annual Rental until again adjusted as herein provided. The term
"sufficient percentage rental" as used herein is defined as such Percentage
Rent for any lease year, whether or not actually paid or payable, which, when
added to the Fixed Minimum Annual Rental set forth in Article 5 would equal or
exceed such Fixed Minimum Annual Rental if adjusted to the Consumer Price Index
(applied as aforesaid) at the end of such lease year to reflect changes therein
since the beginning of such lease year. For example, if the Consumer Price
Index increases by 4% in the first lease year, then "sufficient percentage
rental" for that lease year would be an amount equal to or in excess of 4% of
the Fixed Minimum Annual Rental. If the Fixed Minimum Annual Rental set forth
in Article 5, or otherwise in this lease shall provide for different fixed sums
to be paid during certain lease years, or portions thereof (other than as may
result from the application of this Section 6(e) hereof), then in each and
every instance that the Fixed Minimum Annual Rental shall be adjusted pursuant
to this Section 6(e), all other fixed sums payable as Fixed Minimum Annual
Rental at some future time thereafter shall likewise be adjusted in the same
proportion.
6(f). For all purposes of the Lease Agreement, the
"Consumer Price Index" is hereby defined to be the index for the Washington,
D.C.-Maryland-Virginia area, now known as the United States Bureau of Labor
Statistics, Consumer Price Index, for Urban Wage Earners and Clerical Workers
(revised) - U.S. City Average, and selected areas (1977 = 100), all items; and
if the Consumer Price Index shall be discontinued or altered, then any
successor Consumer Price Index of the United States Bureau of Labor Statistics
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or successor agency thereto, for the Washington, D.C. Metropolitan area, shall
be used, and if there is no such successor Consumer Price Index, Landlord and
Tenant shall attempt to agree upon a substitute index or formula, and if said
parties are not able to agree upon such substitute, the matter shall be
referred to binding arbitration in accordance with the rules of the American
Arbitration Association in the State of Maryland then prevailing.
6(g). No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly installment of rent or other charges herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent or other charges, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check for payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this lease provided.
6(h). The Tenant also agrees to pay and the Landlord
agrees to accept as additional rental for each lease year of the term the
Tenant's proportionate share of any real estate or other taxes as defined in
Article 11 and the Tenant's proportionate share of the cost of maintenance and
operation of common areas as defined in Article 44.
DEPOSIT 7. Intentionally left blank.
GROSS SALES REPORT 8. Intentionally left blank.
AUDIT 9. Intentionally left blank.
DEFINITION OF GROSS 10. Intentionally left blank.
SALES
TAXES AND ASSESSMENTS 11(a). For the purposes of this paragraph, the term
"Real Estate Taxes" means all taxes, rate and assessments, general and special,
levied or imposed with respect to the land, buildings and improvements located
or built within the Shopping Center, including all taxes, rates and
assessments, general and special levied or imposed for school, pubic
betterment, general or local improvements and operations and taxes imposed in
connection with any special taxing district. If the system of Real Estate
Taxation shall be altered or varied and any new tax or levy shall be levied or
imposed on said land, buildings and improvements, and/or Landlord in
substitution for Real Estate Taxes presently levied or imposed on immovables in
the jurisdiction where the demised premises is located, then any such new tax
or levy shall be included within the term "Real Estate Taxes." Should any
governmental taxing authority acting under any regulation, levy, assess, or
impose a tax, excise and/or assessment, however described (other than an income
or franchise tax) upon, against, on account of, or measured by, in whole or in
part, the rent expressly reserved hereunder, or upon the rent expressly
reserved under any other leases or leasehold interest in the Shopping Center,
as a substitute (in whole or in part) or in addition to any existing Real
Estate Taxes on land and buildings and otherwise, such tax or excise on rents
shall be included within the term "Real Estate Taxes."
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11(b). The term "Base Year" means the 1987/88 real
estate tax year. The term "Real Estate Tax Year" means each successive twelve
(12) month period following and corresponding to the Base Year, irrespective of
the period or periods which may from time-to-time in the future be established
by competent authority for the purposes of levying or imposing Real Estate
Taxes.
11(c). Each Real Estate Tax Year after the Base Year,
Tenant shall pay to Landlord within ten (10) days after demand in writing
thereof (accompanied by a statement showing the computation of same) as
additional rent and in addition to Fixed Minimum Rental, Percentage Rent and
all other payments provided for herein, Tenant's Percentage Share (hereafter
defined) of the amount by which (i) the Real Estate Taxes for such tax year
exceed (ii) the Real Estate Taxes for the Base Year. The term "Tenant's
Percentage Share," for all purposes of this Lease, is hereby defined to be that
percentage representing the proportion that the total gross rentable square
feet contained within the leased premises bears to the total gross rentable
square feet contained within the Shopping Center.
11(d). Reasonable expenses, consisting of attorneys'
fees, expert witness fees and similar costs, incurred by Landlord in obtaining
or attempting to obtain a reduction of any Real Estate Taxes shall be added to
and included in the amount of any such Real Estate Taxes. Real Estate Taxes
which are being contested by Landlord shall nevertheless be included for
purposes of the computation of the liability of Tenant under the above
paragraph, provided, however, that in the event that Tenant shall have paid any
amount of increased rent pursuant to this Article 11 and the Landlord shall
thereafter receive a refund of any portion of any Real Estate Taxes on which
such payment shall have been based, Landlord shall pay to Tenant the
appropriate portion of such refund. Landlord shall have no obligation to
contest, object or litigate the levying or imposition of any Real Estate Taxes
and may settle, compromise, consent to, waive or otherwise determine in its
discretion to abandon any contest with respect to the amount of any Real Estate
Taxes without consent or approval of the Tenant.
Nothing contained in this section shall be construed
at any time to reduce the monthly installments of rent payable hereunder below
the amount specified in Articles 5 and 6 of this Lease.
If the termination date of this Lease shall not
coincide with the end of a Real Estate Tax fiscal year, then in computing the
amount payable under this Article 11 for the period between the commencement of
the applicable Real Estate Tax fiscal year in question and the termination date
of this Lease, Tenant's Percentage Share of the Real Estate Taxes for the
applicable Real Estate Tax fiscal year shall be equitably apportioned (on a per
diem basis) so that Tenant shall pay only such portion of such Real Estate
Taxes as is attributable to the portion of such Real Estate Tax fiscal year
occurring during the term of this Lease. Tenant's obligation to pay Real Estate
Taxes under this Article 11 for the final period of the Lease shall survive the
expiration of the term of this Lease.
A tax xxxx or true copy thereof, together with any
explanatory statement of the area or property covered thereby submitted by
Landlord to Tenant shall be conclusive evidence of the amount of taxes assessed
or levied, as well as of the items taxes. If any real property tax or
assessment levied against the land, building or improvements covered hereby or
the rents reserved therefrom, shall be evidenced by improvement bonds or other
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bonds, or in any other form, which may be paid in annual installments, only the
amount paid or payable in any real estate tax fiscal year shall be included as
Real Estate Taxes for that real estate tax year for the purposes of this
Article 11.
LAWS AND ORDINANCES 12. At the time when Landlord tenders possession, in
accordance with its obligations under this Lease, to Tenant, Landlord shall
certify in writing that said premises and all of the work Landlord has
performed therein is in accordance with all state, county, and municipal
building and safety requirements. From that point forward, Tenant will, at its
own costs, promptly comply with and carry out all orders, requirements or
conditions now or hereafter imposed upon it by the ordinances, laws and/or
regulations of the municipality, county and/or state in which the premises are
located, whether required of the Landlord or otherwise, in the conduct of
Tenant's business, except that Landlord shall comply with any orders affecting
structural walls and columns unless due to Tenant's particular business or use
of the premises. Tenant will indemnify and save Landlord harmless from all
penalties, claims, and demands resulting from Tenant's failure or negligence in
this respect.
FURNITURE AND FIXTURES 13. Tenant shall have the privilege o{ installing,
subject to the written approval of the Landlord which shall not be unreasonably
withheld, any furniture, fixtures and machinery necessary to the conduct of its
business and the same shall remain the property of the Tenant, provided they be
removed by the Tenant before the expiration of its tenancy, and further
provided that in the event any damage is done to said premises in the removal
of said furniture, fixtures or machinery, Tenant will promptly reimburse
Landlord for the cost of such repairs as are necessary to restore said premises
to their original condition. In the event of failure of Tenant to remove said
furniture, fixtures and machinery from said premises before expiration of this
Lease, it is agreed that Tenant is abandoning said furniture, fixtures and
machinery and same shall become the property of Landlord, who shall have the
right to use, remove or dispose of said furniture, fixtures and machinery at
the Tenant's expense.
REPAIRS 14. The Tenant agrees to maintain the premises in
good repair during the term of this Lease, at his own expense, including the
floors, walls, ceiling, inside plumbing, heating, ventilating, air conditioning
and other equipment and fixtures installed by the Landlord. Landlord agrees
within a reasonable time after receipt of written notice from the Tenant to
make all repairs necessary to the structural portion and roof, including
gutters and downspouts of the demised premises. The Tenant also agrees, at his
own expense, to replace all plate glass in the demised premises which shall be
damaged or broken from any cause, except where due to building settlement. The
Tenant also agrees at his own cost and expense to maintain exterior sign face,
sign box and sign lighting. The Tenant also agrees at his own cost and expense
to keep in effect during the term of this Lease and any extension or renewal
thereof a full parts and labor maintenance contract on the heating, ventilating
and air conditioning equipment, servicing the demised premises with a
contractor licensed in this area, approved by the Landlord, which approval
shall not be unreasonably withheld. The Tenant agrees to provide the Landlord
with a copy of this contract upon request.
ALTERATIONS 15. Tenant shall not do any construction work or make
any alterations, modifications or changes to any part of the demised premises
either exterior or interior, without Landlord's written consent which shall not
be unreasonably withheld. Landlord may condition its consent upon Tenant's
delivery to Landlord of a policy or policies of workmen's compensation,
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liability and property damage insurance, naming Landlord as additional insured,
in limits and with companies acceptable to the Landlord. In the event of any
such approved work or changes, Tenant shall have all work done at its own
expense. Request for such consent shall be accompanied by plans stating in
detail precisely what is to be done. Tenant and Tenant's contractors (who shall
be licensed) shall comply with the building codes, regulations and laws now or
hereafter to be made or enforced in the municipality, county and/or state in
which said premises are located and which pertain to such work. Any additions,
improvements, alterations and/or installations made by Tenant (except only
movable store and office furniture and fixtures) shall become and remain a part
of the building and be and remain Landlord's property upon the termination of
Tenant's occupancy of said premises; provided, however, that if Landlord gives
written notice to Tenant at the expiration or prior termination of this Lease
to such effect, it may require Tenant to restore said premises to their
original condition. Tenant shall save Landlord harmless from and against all
expenses, liens, claims or damages to either property or person which may or
might arise by reason of the making of any such additions, improvements,
alterations and/or installations.
DAMAGE 16. If the demised premises shall be partially or
totally damaged or destroyed by any risk covered by Landlord's insurance as
provided for in Article 45(a) of this Lease, then Landlord shall diligently and
as soon as practicably after such damage occurs (taking into account the time
necessary to effectuate a satisfactory settlement with any insurance company,
and reasonable delay on account of "labor troubles" or any other cause beyond
Landlord's control) repair or rebuild the demised premises, provided, however,
that in no event shall Landlord be obligated to expend in such repair or
rebuilding any sums in excess of the amount of insurance proceeds paid to
Landlord in connection therewith. The foregoing notwithstanding, in no event
shall Landlord be required to repair, restore or rebuild any portions of the
demised premises constituting a part of Tenant's leasehold improvements or
other tenant work, trade fixtures, equipment and personal property. If the
demised premises are rendered wholly or partially untenantable by such damage
or destruction, and such damage and destruction was without the fault or
neglect of the Tenant, his servants, employees, agents, visitors or licensees,
then the rent payable by Tenant under this Lease during the period in which the
demised premises are so untenantable shall be equitably abated. Except as set
forth in this Article, Landlord shall not be liable for any damages (including
without limitation, business interruption) that may be suffered by Tenant by
reason of any casualty to the demised premises and/or Landlord's repairing or
rebuilding thereof and/or the deprivation of Tenant's use and possession of the
demised premises. All of the foregoing provisions of this Article 16
notwithstanding, if the demised premises are rendered wholly untenantable by
fire or other cause, and the Landlord shall decide not to rebuild the same, or
if the Shopping Center be so damaged that the Landlord shall decide to demolish
it or not to rebuild it, then, or in any of such events, the Landlord may, at
its option, cancel and terminate this Lease by giving to the Tenant, within
sixty (60) days from the date of such damage, notice in writing of its
intention to cancel this Lease, whereupon the term of this Lease shall cease
and determine upon the tenth day after such notice is given, and the Tenant
shall vacate the demised premises and surrender the same to the Landlord.
EMINENT DOMAIN 17. If the Shopping Center or any part thereof shall
be taken by any governmental or quasi-governmental authority pursuant to the
power of eminent domain or deed in lieu thereof, Tenant agrees to make no claim
for compensation in the proceedings and hereby assigns to Landlord any rights
which Tenant may have to any portion of any award made as a result of such
taking, and this Lease shall terminate as to the portion of the premises taken
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by the condemning authority and rental shall be adjusted to such date. The
foregoing notwithstanding, Tenant shall be entitled to claim, prove and receive
in the condemnation proceedings such awards as may be allowed for relocation
expenses and for fixtures and other equipment installed by it which shall not,
under the terms of this Lease, be or become the property of Landlord at the
termination hereof, but only if such awards shall be made by the condemnation
court in addition to and stated separately from the award made by it for the
land and the building or part thereof so taken.
If the nature, location or extent of any proposed condemnation affecting the
Shopping Center is such that the Landlord elects in good faith to demolish all
or substantially all of the buildings in the Shopping Center, then the Landlord
may terminate this Lease by giving at least sixty (60) days' written notice of
termination to the Tenant at any time after such condemnation and this Lease
shall terminate on the date specified in such notice.
ROOF RIGHTS 18. Landlord shall have the exclusive right to use
all or any portion of the roof of the leased premises for any purposes, and
shall have the right to erect additional stories or other structures over all
or any part of said premises.
STORE PURPOSE 19(a). The demised premises shall be used only for the
purpose of Office Use. Tenant shall not use all or any portion of the demised
premises for any other purpose.
19(b). Tenant affirmatively agrees and represents that
it understands and accepts the following as terms of this Lease.
1. The use of the demised premises solely for the
above-mentioned purpose was critical to Landlord's decision to enter into this
Lease. Landlord, in reaching its decision concerning the use of the demised
premises, considered and was influenced by the tenant mix in the Shopping
Center and the socio-economic status of the community in which the demised
premises are located. Such decision by Landlord would not have been made if
Tenant intended to use any portion of the demised premises for any purpose
other than that specified herein.
2. Landlord is acutely aware of its standing and
reputation in the community, and any use of the demised premises reflects on
that standing and reputation. For this reason also, use of the demised premises
was critical to Landlord's decision to enter into this Lease and to Landlord's
continued good standing and reputation in the community.
3. No deviation whatsoever from the use specified
herein shall be allowed for any portion of the demised premises without the
prior written consent of Landlord, which consent may be withheld for any
reason, or without reason, in the sole, absolute, and arbitrary discretion of
Landlord.
4. The terms of this Article 19 including, but not
limited to, any questions concerning the use for which all or any portion of
the demised premises are being employed, shall be strictly enforced and any
questions arising hereunder shall be resolved by Landlord in its sole and
absolute discretion
19(c). In addition to the provisions of Article 19(a)
and (b) above, and in no way in limitation thereof, Tenant agrees not to commit
waste on the demised premises and not to use the demised premises for any
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unlawful purpose, or in violation of any certificate of occupancy, nor suffer
any dangerous article to be brought on the demised premises unless safeguarded
as required by law. Moreover, no nuisances, public or private, shall be allowed
on the demised premises nor shall any use be allowed which is a source of
annoyance or embarrassment to Landlord or the other Tenants of the Shopping
Center, or which is deemed by Landlord as not in keeping with the character of
the neighborhood, nor shall the demised premises be used for any unlawful,
immoral or improper purpose. Without limiting the generality of the foregoing,
in no event shall all or any portion of the demised premises be used as a so-
called "adult bookstore" selling obscene or pornographic books or magazines, or
for the sale of drug paraphernalia or related items, nor operate in the Demised
Premises or in any part of the Shopping Center any coin or token operated
vending machines or similar device for sale of any merchandise service
(including pay lockers, pay toilets, scales. amusement devices and machines for
the sale of beverages, foods, candy or other commodities) except that one
cigarette vending machine may be installed in the Demised Premises unless
otherwise approved by the Landlord in writing.
19(d) In addition to, and not in limitation of, the
foregoing subparagraphs of this Article 19 comply with and observe all
restrictive covenants of record (as outlined in Exhibit "E" attached hereto and
hereby made a part hereof) which affect or are applicable to the Shopping
Center and/or the Demised Premises and/or the common areas, provided the same
do not prohibit Tenant's permitted use of the Demised Premises specified in
Section 19 hereof.
SIGNS 20. Tenant shall provide one (two in specified
locations) signboard, sign or signs of such size, design and character, and in
such location(s) only, as Landlord shall approve in writing in its sole
discretion. Tenant hereby agrees that such sign shall, unless otherwise
expressly permitted, also comply in all respects with the provisions and
requirements of the sign regulations hereinafter adopted from time to time by
Landlord. Tenant shall obtain and pay for all permits and license's required in
connection with such sign and shall be responsible for the proper installation
thereof. It is further understood that all signs placed by Tenant on the
demised premises shall be erected and maintained in accordance with the County,
State and/or other ordinances in force or effect at the time, and at the sole
cost and expense of Tenant. Tenant agrees to maintain all signs in good
condition and repair at all times to the reasonable satisfaction of Landlord.
Except as expressly permitted by Landlord, no other signs, lights, lettering or
other forms of inscription of advertising of display devices shall be displayed
on the exterior of the demised premises or on or in immediate proximity to the
inner or outer face of the show windows, entrances, doors or transoms nor shall
the same be displayed in any other location within the demised premises from
which said signs, lights, or other forms of inscription or advertising or
display devices may readily be seen from outside the demised premises without
prior written approval of Landlord as to size, material, design and neatness
thereof. It is further agreed that Tenant shall not use sidewalks, parking
areas, and alleys for displays, wares, or signs of any kind. The Landlord shall
determine during what hours the Shopping Center and any signs shall be lit. Any
tenant directory provided by Landlord shall be at the sole cost and expense of
Landlord.
HOURS OF LIGHTING 21. Intentionally left blank.
PARKING AND COMMON
USE AREAS 22. All automobile parking areas, driveways, and
other facilities furnished by Landlord in or near the Shopping Center,
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including employee parking areas, the truckway or truckways, loading docks,
package pick-up stations, pedestrian sidewalks and ramps, landscaped areas,
exterior stairways, and other areas and improvements provided by Landlord for
the general use, in common, of Tenants, their officers, agents, employees, and
customers, shall at all times be subject to the exclusive control and
management of the Landlord, and Landlord shall have the right from time to time
to establish, modify and enforce reasonable rules and regulations with respect
to all facilities and areas, the right to construct, maintain and operate
lighting facilities on all said areas and improvements, the right to change the
area, level, location and arrangement of parking areas and other facilities
hereinabove referred to, and the right to restrict parking by tenants, their
officers, agents and employees to employee parking areas. Landlord shall not,
however, have any duty to police the traffic in the parking areas. However, if
a parking lot attendant be required as determined by the Landlord or by
ordinance, regulation or law, Landlord shall provide same. and the cost of such
attendant shall be considered part of the cost of maintenance and operation of
common areas as provided for in Article 44. The Landlord is obligated to hard
surface, stripe and light the parking areas.
Tenant further agrees that its employees will not park their cars or other
vehicles on the streets adjacent to the leased premises, or in the space
provided for public use, but will use such space as Landlord shall designate
from time to time as parking space for the use of Tenants and employees.
Landlord may designate spaces provided for public parking for employee or
Tenant parking at specific times. At Landlord's request, Tenant shall supply
Landlord with the names of all employees assigned to the demised premises,
along with the license number of their respective automobiles or vehicles. In
addition, Tenant agrees to supply Landlord with the license numbers of all
vehicles owned or operated by Tenant.
The parties agree that damages will accrue from the breach of the covenant
relating to parking, and that the amount of such damage will be difficult to
establish, and that by reason thereof liquidated damages in the amount of
$10.00 per day, per vehicle, parked in violation of said covenant may be
recovered by Landlord from Tenant, following written notification to Tenant
naming the vehicles in violation.
Tenant agrees to prohibit the loading or unloading of delivery vans, trucks,
carts, or vehicles of any sort by, through, into, or from the front door or
doors or the demised premises after 10:00 a.m., during each seven (7) days of
the week; except that retail customers may load or unload into or from the
front door or doors of the demised premises purchases made by said retail
customers.
The parties agree that damages will accrue from the breach of the covenant
relating to loading or unloading of deliveries and that the amount of such
damage will be difficult to establish; that by reason thereof liquidated
damages in the amount $10.00 per day, per vehicle, loaded or unloaded in
violation of said covenant may be recovered by Landlord from Tenant, following
written notification to Tenant naming the supplier violating this covenant.
UTILITIES: GENERAL 23. Tenant shall, at its sole cost and expense, pay
all charges when due for water, sewer, gas, electricity, heat, air-conditioning
and any other utility or energy charges and taxes incurred by Tenant in the use
of the demised premises.
UTILITIES:
SEPARATE METER 24(a). Tenant shall pay to Landlord, within 10 days
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after rendition of a xxxx therefor by Landlord of the Xxxxxxx County Department
of Public Works, or successor, in addition to all other charges provided herein
and as additional rent, a sum equal to the amount (or Tenant's pro rata share,
as reasonably determined by Landlord) of any water or sewer rent or charge, or
any other tax, rent, fee, levy or charge, imposed in connection with Tenant's
use, consumption of supply of water, or Tenant's water system, or Tenant's
sewerage connection or system.
24(b). If Landlord, in its sole discretion, determines
at the inception of or during the term of this Lease that Tenant is a heavy
water user, then Landlord will install at Tenant's expense, a submeter for the
demised premises. Tenant shall keep such meter and any installation equipment
in good order and repair; repay Landlord on receipt of a xxxx for its'
installation and Tenant shall pay for all water consumed as shown on the meter
together with the concomitant sewer charge within ten (10) days after rendition
of a xxxx therefor.
24(c). The total charges for all Tenants in the
Shopping Center coming within the purview of Article 24(b) shall be deducted
from the charges pertaining to Tenants referred to in Article 24(a).
25. Tenant will keep the premises in a clean, orderly
and sanitary condition and free of insects, rodents, vermin, other pests, trash
and dirt accumulations and shall furnish adequate and proper receptacles for
trash and garbage in location designated by the Landlord. Landlord shall
maintain and keep in good repair the parking lot, pedestrian walkways and
driveways, keeping them clean, free of snow and ice, orderly, properly lighted
and marked. Landlord will provide garbage and trash collection service for the
demised premises. Tenant shall cooperate with Landlord in the scheduling of
such collection service and Tenant shall not use any other garbage or trash
collection service at the premises. The cost of any such service shall be
included in the Landlord's common area costs or shall be billed monthly to
Tenant, based on the ratio of the floor area of the demised premises to the
aggregate floor area of all tenants to whom Landlord furnishes such service.
Landlord may at any time change such collection methods, and will give
reasonable notice to Tenant.
KEEP CLEAN 26. The Tenant agrees to keep the sidewalks abutting
the demised premises in a clean and orderly fashion, and agrees not to use any
space, other than within the walls of the demised premises, for the sale or
storage of merchandise or for service of any kind.
HOLD HARMLESS 27. Tenant agrees that it will indemnify and save the
Landlord harmless from any and all liabilities, damages, causes of action,
suits, claims, judgements, costs and expenses of any kind (including attorneys'
fees) (i) relating to or arising from or in connection with the possession,
use, occupation, management, repair, maintenance or control of the demised
premises, or any portion thereof, or (ii) arising from or in connection with
any act or omission of Tenant or Tenant's agents, employees or invitees, or
(iii) resulting from any default, violation or nonperformance of this Lease by
Tenant, or (iv) resulting in injury to person or property or loss of life
sustained in or about the demised premises. To assure such indemnity, Tenant
shall carry and keep in full force and effect at all times during the term of
this Lease for the protection of the Landlord and Tenant herein, public
liability insurance with limits of at least One Million Dollars ($1,000,000.00)
for each accident and Five Hundred Thousand Dollars ($500,000.00) for each
separate injury, and property damage insurance In the amount of Fifty Thousand
Dollars ($5O,000.OO), with an approved insurance company and to deliver to
15
Landlord a copy of said policy or a certificate showing the same to be in force
and effect. In the event Tenant shall fail to maintain such policy of insurance
then Landlord may, after three (3) days' written notice to Tenant obtain such
policy and pay the premium thereon and the amount so paid shall be added to the
next installment of rent.
PROPERTY AT
TENANT'S RISK 28. It is understood and agreed that all personal
property, goods, wares and merchandise in said premises shall be and remain at
the Tenant's sole risk and the Landlord shall not be liable for any damage to
or loss of such personal property, goods and merchandise arising from the
bursting, overflowing or leaking of the roof or of water, sewer, or steam
pipes, or from wires or fixtures or from any other cause whatsoever, unless
said damages are caused through the negligence of the Landlord, its servants,
employees and contractors.
INSURANCE RISK 29. The Tenant shall not keep gasoline or other
inflammable material or any other explosive in the demised premises or use the
demised premises in any manner which will increase the rate of fire insurance
on the Shopping Center or any part thereof beyond the ordinary risk established
for the type of business hereinabove provided to be conducted therein, and any
such increase in the insurance rate shall be borne by the Tenant. Tenant shall
not do any act or thing upon the premises or in or about the Shopping Center or
any part thereof which may make void or voidable any insurance on the demised
premises or Shopping Center, and the Tenant expressly agrees to conform to all
rules and regulations from time to time established by the Maryland Insurance
Rating Bureau.
LANDLORD ACCESS 30. The Landlord and its Agent shall have access to
the demised premises at any and all reasonable times for the purpose of
protecting said premises against fire, for the prevention of damage and injury
to the leased premises, or for the purpose of inspecting the same.
31(a). In the event the Tenant shall be adjudicated
bankrupt or adjudged to be insolvent, or if Tenant shall file or acquiesce in a
petition in any court in any bankruptcy, reorganization, composition,
extension, arrangement or insolvency proceedings, or if Tenant shall make an
assignment or other conveyance in trust for the benefit of its creditors, or if
any execution or attachment shall be issued against Tenant or Tenant's property
whereupon the demised premises shall be taken or occupied or attempted to be
taken or occupied by someone other than Tenant and such execution or attachment
shall not be dismissed, vacated, discharged or bonded within sixty (60) days'
after issuance of same, or if a receiver of Trustee shall be appointed for the
property and assets of the Tenant and such receivership be not discharged
within twenty (20) days from the date of such appointment, then upon the
happening of any of said events, the term hereby demised shall, at the option
of the Landlord, cease and determine, it being expressly agreed that the
covenant hereinafter contained against the assignment of this Lease shall cover
the case of the assignment of this Lease by operation of law as well as the
assignment of this Lease by a voluntary act of the Tenant.
31(b). If this Lease shall be so cancelled and
terminated, neither Tenant nor any person claiming through or under Tenant by
virtue of any statute or order of any court shall be entitled to remain in
possession of the demised premises but shall forthwith quit and surrender the
demised premises. In no event, without the written approval of Landlord which
approval may be granted or withheld at its sole discretion, shall this Lease be
or be considered an asset of Tenant's estate in bankruptcy, or insolvency, or
16
receiver or trustee (hereafter referred to as a "Trustee") with respect
thereto.
31(c). To the extent that Landlord's right to cancel
this Lease in accordance with the provisions of subsections (a) and (b) of this
Article 31 is invalid or enforceable under the Bankruptcy Reform Act of 1978
(the "Act") or any other statute or rule of law, then the following provisions
shall apply, to the extent valid and enforceable.
31(c)1. If there has been a Default by Tenant under
any provision of this Lease (other than this Article 31), the Trustee may not
assume this Lease, unless, at the time of assumption of this Lease, the
Trustee:
31(c)1A cures, or provides adequate assurance (to
Landlord's reasonable satisfaction) that the Trustee will promptly cure such
default; and
31(c)1B provides adequate assurance (to Landlord's
reasonable satisfaction) of future performance under the Lease, which shall
include, without limitation, adequate assurance:
31(c)1Bi of the source of rent and other consideration
due under such Lease;
31(c)1Bii that the Percentage Rent will not decline
substantially;
31(c)1Biii that assumption or assignment of such Lease
will not breach substantially any provision, such as a radius, location, use,
or exclusivity provision, In any other lease, financing agreement, or master
agreement relating to the Shopping Center; and
31(c)1Bvi that assumption or assignment of this Lease
will not disrupt substantially any tenant mix or balance in the Shopping
Center.
31 (c)2 If there has been a default by Tenant, the
Trustee may not require the Landlord to provide services or supplies incidental
to this Lease before assumption of this Lease unless the Landlord is
compensated under the terms of this Lease for any services and supplies
provided under this Lease before assumption of this Lease.
31(d) If this Lease is terminated under the provisions
of this Article 31, or by reason of rejection by the Trustee, Landlord shall be
entitled to the recovery of damages, and such other remedies, as are provided
for in Article 33. The foregoing sentence shall not, however, limit or
prejudice the right of Landlord to petition for and obtain as liquidated
damages in any bankruptcy, insolvency, receivership, reorganization, or
arrangement proceeding an amount equal to the maximum allowed by the Act or any
other statute or rule of law governing such proceedings and in effect at the
time when such damages are to be proved, whether or not such amount be greater,
equal to or less than the amount of the excess referred to in the preceding
sentence.
REPOSSESSION 32. This Lease is subject to the limitation that if at
any time either of the following events (herein called a "Default") shall
occur:
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(i) if Tenant shall fail to pay any installment of rent or any other charge
required to be paid by Tenant hereunder, when the same shall become due and
payable (it being specifically understood and agreed that the term rent
includes the minimum rental, the Percentage Rent, the share of real estate or
other taxes and the share of cost of maintenance and operation of common areas,
as referred to in this Lease or any other consideration under the Lease that is
identified as rent in this Lease), and such failure shall continue for five (5)
days; or
(ii) if Tenant shall fail to perform or observe any other term, provision,
covenant, condition or requirement of this Lease on the part of Tenant to be
performed or observed, and such failure shall continue for ten (10) days after
written notice from Landlord;
then upon the happening of either of the aforementioned defaults, this Lease
shall, at Landlord's option, cease and determine and shall operate as a Notice
to Quit, any written Notice to Quit being hereby expressly waived. Landlord may
proceed to recover possession of said premises by virtue of any legal process
as may at the time be in operation and force in like cases relative to
proceedings between Landlord and Tenant, and Tenant shall pay for any court
costs relative to such proceedings and a reasonable attorneys' fee, or Landlord
may at its option re-enter and re-rent the demised premises for the account of
the Tenant, and in such event, Tenant shall remain liable to Landlord for any
and all deficiencies in the rent under this Lease.
RELETTING 33. Should Landlord elect to re-enter, as herein
provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided by law, it may either terminate this Lease or
it may from time to time without terminating this Lease, make such reasonable
alterations and reasonable repairs as may be necessary in order to relet the
premises, and relet said premises or any part thereof for such term or terms
(which may be for a term of less than as extending beyond the term of this
Lease) and at such rental or rentals and upon other terms and conditions as
Landlord in its discretion may deem advisable; upon each such reletting all
rentals received by the Landlord from such reletting shall be applied first, to
the payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorneys' fees and of costs of such reasonable
alterations and reasonable repairs; third, to the payment of rent due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be
less than that to be paid during that month by Tenant hereunder, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of said premises by
Landlord shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for any such previous breach.
Should Landlord at any time terminate this Lease for any breach, in addition to
any other remedies it may have, it may recover from Tenant damages it may incur
by reason of such breach, including any unpaid rent (or other amounts due under
this Lease) which is due and owing at the time of termination, repairing and
redecorating the premises to a condition sufficient for reletting same. In
addition, in the event of termination by Landlord as aforesaid, if Landlord at
its sole option so elects, Tenant shall pay to Landlord, on demand, as
liquidated, agreed final damages, the following:
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1. The difference between: (i) the rent and all other charges which would have
been payable from the date of such demand to the date when this Lease would
have expired if it had not been terminated as aforesaid, and (ii) the fair
rental value of the demised premises for the same period, with said difference
being discounted at the rate of six percent (6%) per annum to present worth,
and
2. commissions, advertising, cost of repairs and other expenses incidental to
the reletting of the demised premises
For purposes of the foregoing sentence, the term rent shall include fixed
minimum rental, Percentage Rent, additional rent, and all other charges and
pass-throughs provided herein. For the purpose of computing Percentage Rent
after a Default, the monthly percentage rent shall be deemed to be equal to the
average monthly Percentage Rent paid hereunder for the twenty-four (24) months
during the term preceding such termination the entire preceding portion of the
term if less than twenty-four months).
HOLDOVER 34. If the Tenant shall not immediately surrender said
premises on the day after the end of the term hereby created, then the Tenant
shall, by virtue of this agreement, become Tenant by the month at twice the
rental agreed by the said Tenant to be paid as aforesaid, commencing said
monthly tenancy with the first day next after the end of the term above
demised; and said Tenant as monthly Tenant, shall be subject to all of the
conditions and covenants of this Lease as though the same had originally been a
monthly tenant, and the said Tenant shall give to the Landlord at least thirty
(30) days' written notice to quit said premises, except in the event of non-
payment of minimum rent in advance or of Percentage Rent when due or of the
other additional rents, as provided for in Article 6 hereof, when due, or of
the breach of any other covenant by the said Tenant, in which event the said
Tenant shall not be entitled to any notice to quit, the usual thirty (30) days'
notice to quit being expressly waived; provided, however, that in the event
that the Tenant shall hold over after the expiration of the term hereby
created, and if the said Landlord shall desire to regain possession of said
premises promptly at the expiration of the term aforesaid, then at any time
prior to the acceptance of the minimum rent by the Landlord from the Tenant, as
monthly tenant hereunder, the Landlord, at its election or option, may re-enter
and take possession of said premises forthwith, without process, or by any
legal action or process in force in the State of Maryland.
RENTAL SIGN 35. The Tenant agrees to give Landlord permission to
place a "For Rent" sign in the window sixty (60) days before termination of the
lease term.
SUBORDINATION 36. Tenant agrees that this Lease shall be subject and
subordinate to the lien of any bona fide mortgages or deeds of trust that may
now or at any time hereafter be placed against the demised premises by the
Landlord to secure money borrowed from any insurance company or recognized
financial institution. Tenant agrees, at any time hereafter, on demand, to
execute any instrument, release, or other documents that may be required by
Landlord for the purpose of subjecting and subordinating this Lease to the lien
of any mortgage or deed of trust, whether original or substituted.
NOTICES 37. All notices, demands. requests, approval, consents
or other instruments required or desired to be given hereunder by either party
to the other shall be given by certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
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If to Landlord. If to Tenant:
Xxxxxxxxx Village Associates Interstate General Co. L.P.
000 Xxxxxxxxx Xxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxx 00000 Xx. Xxxxxxx, Xxxxxxxx 00000
ASSIGNS AND SUCCESSORS 38. Feminine or neuter pronouns shall be substituted
for those of the masculine form, and the plural may be substituted for the
singular number, in any place or places herein in which the context may require
such substitution or substitutions; and the covenants and agreements herein
contained shall, wherever appropriate, be binding upon the heirs,
administrators, executors, personal representatives, successors and assigns of
the parties hereto.
SUBLETTING
AND ASSIGNMENT 39. Tenant will not sublet demised premises or any
part thereof, or transfer possession or occupancy thereof to any person
(including but not by way of limitation, concessionaires or licensees of
Tenant) firm or corporation or transfer, assign mortgage or encumber this Lease
without the prior written consent of Landlord in each instance, nor shall any
subletting or assignment hereof be effected by merger, liquidation or otherwise
by operation of law or otherwise than by the prior written consent of the
Landlord. Any attempted transfer, assignment, subletting, license or
concession agreement or hypothecation shall be void and confer no rights upon
any third party. If Landlord shall refuse to consent to any request of Tenant
for the proposed assignment, sale, or other transfer of Tenant's interest in
and to this Lease and/or the demised premises, Landlord may, if it so elects,
but only with the consent of Tenant, terminate this Lease as of a mutually
agreeable termination date, in which event (i) this Lease shall expire and come
to an end with the same force and effect as if said date were originally set
forth in this Lease for expiration of the Term, (ii) Tenant agrees Landlord
shall have the absolute right, with no consent required from Tenant, to relet
the demised premises for its own account to Tenant's prospective assignee at
such rentals and upon such other terms and conditions as Landlord shall desire
If, without Landlord's prior written consent, there shall be an attempted
assignment or subletting or if the demised premises shall be occupied by
anybody other than Tenant, whether as a result of act or omission by Tenant, or
by operation of law, or otherwise, Landlord, may. in addition to, and not in
diminution of or substitution for, any other rights and remedies under this
Lease or pursuant to law to which Landlord may be entitled as a result thereof,
collect rent from the proposed assignee, subtenant or occupant and apply the
net amount collected to the rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant
or the acceptance of the assignee, subtenant, or occupant as a tenant, or a
release of Tenant hereunder from the further performance by Tenant of the
covenants on the part of Tenant herein contained.
If Landlord shall consent to any requested transfer, assignment, mortgage,
hypothecation, encumbrance, subletting, license and/or concession, such consent
shall be deemed consent to that particular transaction only and shall not be
deemed consent to any other or future transfer, assignment, mortgage,
hypothecation, encumbrance, subletting, license and/or concession, as the case
may be. Any permitted transfer, assignment, mortgage, hypothecation,
encumbrance, subletting, license and/or concession shall be expressly subject
to each and every term, covenant and condition of this Lease, unless otherwise
specifically provided in writing, and Tenant shall remain fully liable and
obligated under all of such terms, covenants and conditions.
20
If Tenant is a corporation, unincorporated association or partnership, and
Tenant shall, without the prior written consent of Landlord, transfer, assign
or hypothecate any stock or interest in such corporation, association or
partnership so as to result in a change in the control thereof by the person,
persons or entities owning a controlling interest therein as of the date of
this Lease, then Landlord shall have the option to terminate this Lease at any
time after actual notice of such change by giving Tenant at least sixty (60)
days' prior written notice and, on the date fixed in such notice for
termination of this Lease, this Lease shall expire and come to end with the
same effect as if said date were originally set forth in this Lease for
expiration of the term. The mere receipt by Landlord of rent from a party other
than Tenant shall not be deemed actual notice of any change in control or
ownership of Tenant. This provision shall not be applicable to the transfer of
any stock or interest in such corporation, association or partnership to a
member of the immediate family of any person(s) now owning a controlling
interest therein (i.e.. the spouse and direct lineal ancestor or descendent of
such person or such person's spouse).
NOT PARTNERS 40. The parties hereto by this agreement expressly do
not intend as a matter of fact or law to create or constitute a partnership.
PROMOTIONAL SERVICE 41. Intentionally left blank.
CONTINUOUS OCCUPANCY 42(a). On the Rent Commencement Date, Tenant shall
occupy the premises and promptly open for business, at which time the premises
shall be fully fixtured, fully stocked and fully staffed. Tenant acknowledges
that it has been informed that its obligation to open for business promptly on
the Rent Commencement Date has been and will be relied upon by the Landlord in
dealing with other tenants in the Shopping Center, and failure of Tenant to
open for business as above specified shall constitute a Default under this
Lease, and may cause substantial damages to Landlord. Tenant shall defend,
indemnify and save Landlord harmless from any damages which may be claimed
against Landlord and shall indemnify Landlord for any losses suffered because
of Tenant's failure to comply with its obligations under the first sentence of
this Article.
42(b). Throughout the term, Tenant shall continuously
conduct in the premises, with a full stock of merchandise and full staff of
personnel, the business permitted under Article 19 (and no other business.
including specifically any business or use prohibited by the terms of this
Lease) on all business days and during such hours as are kept by a majority of
the tenants in the Shopping Center (excluding the Tenant hereunder) and at
least 66 hours per week (unless fewer hours per week are agreed to by a
majority of the tenants in the Shopping Center (excluding the Tenant
hereunder). Regardless of the minimum number of hours per week Tenant is open
for business, and regardless of which additional hours Tenant is open, Tenant
shall in all events remain open for business during the hours of 10:00 A.M. to
5:30 P.M. Monday through Saturday. Tenant acknowledges that its obligation to
continuously and actively conduct business in the premises in the manner
prescribed in this Article is for the purpose of enhancing the business
activity and public patronage of all stores in the Shopping Center in order to
produce for Landlord the maximum possible percentage rents from all stores in
the Shopping Center as well as from the premises and to enhance the
leaseability of floor space in the Shopping Center, and Tenant acknowledges
that failure on its part to comply with the provisions of this Article shall
constitute a Default under this Lease, and would cause Landlord substantial
damages which might be difficult or insusceptible of exact proof. Accordingly,
the parties have agreed that if Tenant fails to comply with the provisions of
21
this Article, then Landlord shall not be required to prove its actual damages
for breach of this Article, but in lieu thereof Tenant shall pay Landlord as
liquidated damages, and not as a penalty, an additional monthly rent equal to
the monthly minimum rent payable under Article 5 hereof, which liquidated
damage payments shall continue from the date of breach until such breach is
cured or until the end of the then current term of this Lease, whichever is
first. Said liquidated damages shall be paid monthly, concurrently with the
monthly payments of minimum rent reserved under this Lease. Nothing in this
Article shall be construed as a limitation upon Tenants obligations to
continuously conduct business in the manner herein specified or upon Landlord's
remedies under Articles 32 and 33 or upon Landlord's right to recover any other
provable monetary damages. A breach by Tenant of its obligations under
subsection (a) of this Article shall also constitute a breach of this
subsection (b) and entitle Landlord not only to its claims under subsection
(a), but also to liquidated damages under this subsection (b) for so long as
the breach of this subsection continues.
MAINTENANCE AND
OPERATION OF
COMMON AREAS 43. Landlord agrees to keep the parking areas in the
Shopping Center and the other common areas (excepting service areas immediately
adjacent and contiguous to the demised premises, the maintenance of which shall
be Tenant's responsibility) reasonably free of snow, ice and debris and to keep
the same lighted during the business hours of a majority of the tenants in the
Shopping. Landlord further agrees to keep the parking areas in the Shopping
Center and other common ares in good repair and order.
COST OF MAINTENANCE
AND OPERATION OF
COMMON AREAS 44(a). Common area maintenance costs are defined as
costs and expenses incurred by Landlord, or others on Landlord's behalf, in
operating, maintaining, repairing and replacing those areas to the entire
Shopping Center, for the benefit of the entire Shopping Center. These costs
include, but are not limited to, the costs set out in Exhibit "C" attached
hereto. Common areas are defined as all areas, facilities and improvements
provided, from time to time, in the Shopping Center (except those within any
store premises) for the mutual convenience and use of tenants or other
occupants of the Shopping Center, their respective agents, employees, customers
and invitees and shall include, if provided, but not be limited to, parking
areas and facilities, including, without limitation, roadways, entrances,
sidewalks, stairways, service corridors, truckways, ramps, loading docks,
delivery areas, landscaped areas, package pickup stations, public restrooms and
comfort stations, access and interior roads, retaining walls, and lighting
facilities.
44(b). Subject to adjustment as herein provided,
Tenant shall pay Landlord on the Rent Commencement Date and on the first day of
each calendar month during the term hereof the amount set forth in the next
succeeding sentence and estimated by Landlord to be Tenant's monthly Percentage
Share of the common area maintenance costs; and Landlord may adjust said amount
at the end of any calendar month on the basis of Landlord's experience and
reasonably anticipated costs. For the first full calendar year of this Lease,
and for the period between the Rent Commencement Date and such first calendar
year, Tenant's monthly share of common area maintenance costs shall be an
amount equal to Ninety cents (.90) per square foot of floor area in the demised
premises, and for each full calendar year thereafter, Tenant's monthly share
shall be determined on the basis of one-twelfth (1/12th) of Tenant's actual
Percentage Share of common area maintenance costs for the preceding calendar
22
year (or if Tenant was not a tenant in the Shopping Center for the full
preceding calendar year, then 1/12th of what would otherwise have been Tenant's
pro-rata share had Tenant been such a tenant.)
44(c) Within ninety (90) days following the end of
each calendar year, Landlord shall furnish Tenant a statement covering such
calendar year just expired in reasonable detail, prepared in accordance with
generally accepted accounting and/or auditing principles and certified as
correct by a certified public accountant or any authorized representative of
Landlord, showing the common area maintenance costs and the amount of Tenant's
Percentage Share of such costs for such year computed in accordance with
Article 44(a) above, and the payments made by Tenant with respect to such year
as set forth in Article 44(b) above. If Tenant's Percentage Share of such costs
is less than Tenant's payments so made, Tenant shall be entitled to a credit of
the difference, or if such share is greater than Tenant's said payments, Tenant
shall pay Landlord the difference. Tenant and Landlord shall adjust and make
refunds or pay the deficiency, as the case may be, within thirty (30) days
after receipt of such statement. Tenant's Percentage Share of the common area
costs shall be adjusted proportionately for any partial lease year.
INSURANCE 45(a). Landlord shall obtain and maintain in effect
during the term of this Lease a policy or policies of insurance (i) covering
the improvements constituting the Shopping Center (including the common areas,
but excluding Tenant's leasehold improvements, trade fixtures and other
property required to be insured by Tenant) in an amount not less than eighty
percent (80%) of the full replacement cost (exclusive of the cost of
excavations, foundations and footings), providing protection against perils
included within the standard Maryland form of fire and extended coverage
insurance policy, together with such other risks, and with such deductibles, as
Landlord may from time to time determine, and (ii) public liability insurance
covering the parking areas and other common areas in an amount not less than
$500,000 for injury to any one person, $1,000,000 for injuries arising out of
one accident, and $50,000 for property damage coverage. The cost of the
premiums for any such policies shall be included in the Landlord common area
maintenance costs. Any such insurance may be effected by a policy or policies
of blanket insurance, covering additional items or locations or assureds.
Tenant shall have no rights in any policy maintained by Landlord and shall not,
by reason of payment by Tenant, as part of common area maintenance costs, of
its pro rata share of Landlord's premium therefor, be entitled to be a named
assured thereunder.
45(b). Tenant, at Tenant's sole cost and expense,
shall obtain and maintain in effect at all times during the term of this Lease,
policies providing the following coverage:
(i) a comprehensive policy of general liability insurance, covering the
demised premises and Tenant's use thereof against claims for personal injury or
death or property damage occurring upon, in or about the demised premises, in
the limits stipulated in Article 27;
(ii) insurance covering Tenant's leasehold improvements, trade fixtures,
equipment and personal property from time to time in, on or upon the demised
premises, in an amount of not less than eighty percent (80%) of the full
replacement value of said items, providing protection against perils included
within the standard Maryland form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage, vandalism, and
malicious mischief. Any policy proceeds from such insurance, so long as this
Lease shall remain in effect, shall be held in trust by Tenant's insurance
23
company first for the repair, reconstruction, restoration or replacement of the
property damaged or destroyed, and
(iii) plate glass insurance covering all plate glass in the demised premises.
Tenant shall be and remain liable for the repair and restoration of all such
plate glass.
45(c). All insurance policies herein required to be
procured by Tenant (i) shall be issued in form acceptable to Landlord by good
and solvent insurance companies qualified to do business in the State of
Maryland and reasonably satisfactory to Landlord, (ii) shall be issued in the
names of Landlord, Tenant and any other parties in interest from time to time
designated in writing by notice from Landlord to Tenant, (iii) shall be
written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord may carry; and (iv) shall contain an express waiver
of any right of subrogation by the insurance company against Landlord. Neither
the issuance of any insurance policy required hereunder, nor the minimum limits
specified herein with respect to Tenant's insurance coverage, shall be deemed
to limit or restrict in any way Tenant's liability arising under or out of this
Lease. With respect to each and every one of the insurance policies herein
required to be procured by Tenant, on or before the Rent Commencement Date and
before any such insurance policy shall expire, Tenant shall delivery to
Landlord certificates of insurance for, certified copies of, or duplicate
originals of, each such policy or renewal thereof, as the case may be, together
with evidence of payment of all applicable premiums. Any insurance required to
be carried hereunder may be carried under a blanket policy covering the demised
premises and other locations of Tenant, and if Tenant includes the demised
premises in such blanket coverage Tenant shall deliver to Landlord, as
aforesaid, a duplicate original or certified copy of each such insurance policy
or a certificate evidencing such insurance. Each and every insurance policy
required to be carried hereunder by or on behalf of Tenant shall provide that,
unless Landlord shall first have been given ten (10) days' prior written notice
thereof: (i) such insurance policy shall not be cancelled and shall continue in
full force and effect, (ii) the insurance carrier shall not, for any reason
whatsoever, fail to renew such insurance policy, and (iii) no material change
may be made in such insurance policy. In the event that Tenant shall fail
promptly to furnish any insurance coverage herein required to be procured by
Tenant, Landlord, at its sole option, shall have the right to obtain the same
and pay the premium therefor for a period not exceeding one (1) year in each
instance, and the premium so paid by Landlord shall be immediately payable by
Tenant to Landlord as additional rent.
ADDITIONAL RENT 46. If Landlord shall incur any charge or expense on
behalf of Tenant under the terms of this Lease, such charge or expense and all
other monetary payments due under this Lease to Landlord shall be considered
additional rent hereunder; in addition to and not in limitation of any other
rights and remedies which Landlord may have in case of the failure by Tenant to
pay such sums when due, such nonpayment shall entitle Landlord to the remedies
available to it hereunder for non-payment of rent.
All such charges or expenses shall be paid to Landlord at its office in St.
Xxxxxxx, Maryland.
RENT 47. Landlord covenants that if Tenant pays the rent
and all other charges provided for herein, performs all of its obligations
provided for hereunder, and observes all of the other provisions hereof, Tenant
shall at all times during the term hereof peaceably and quietly have, hold and
24
enjoy the demised premises, without any interruption or disturbance from
Landlord, or anyone claiming through or under Landlord, subject to the terms
hereof.
TRANSFER OF
LANDLORD'S INTEREST 48. Notwithstanding any provision of this Lease to the
contrary, in the event of the sale or other transfer of Landlord's interest in
the demised premises or the Shopping Center, (i) Landlord shall thereupon and
without further act by either party hereto be released and discharged of all
covenants and obligations of Landlord hereunder thereafter accruing, and (ii)
it shall be deemed and construed conclusively, without further agreement
between the parties, that the purchaser or other transferee or assignee has
assumed and agreed to perform the obligations of Landlord thereafter accruing.
NO WAIVER 49. That no waiver of any breach of any covenant,
condition or agreement herein contained shall operate as a waiver of the
covenant, condition or agreement itself, or of any subsequent breach thereof.
PARTIAL INVALIDITY 50. If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease or the application of
such term, covenant or condition to persons or circumstances other than those s
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant and condition of this Lease shall be valid and enforced to
the fullest extent permitted by law.
RULES & REGULATIONS 51. Tenant shall at all times comply with the rules
and regulations set forth on Exhibit "D' attached hereto, and with any
additions thereto and modifications thereof adopted from time to time by
Landlord, and each such rule or regulation shall be deemed as a covenant of
this Lease to be performed and observed by Tenant.
APPLICABLE LAW 52. This Lease shall be construed under the laws of
the State of Maryland.
CAPTIONS AND HEADINGS 53. Captions and headings are for convenience and
reference only.
JOINT AND SEVERAL
LIABILITY 54. If two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such
individual, corporation, partnership, or other business association to pay rent
and perform all other obligations hereunder shall be deemed to be joint and
several. In like manner, if the Tenant named in this Lease shall be a
partnership or other business association, the members of which are, by virtue
of statute or general law, subject to personal liability, the liability of each
such member shall be joint and several.
NOTIFICATION 55. This writing is intended by the parties as final
expression of their agreement and as a complete and exclusive statement of the
terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between
the parties or their affiliates shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to
determine the meaning of any of the terms of this Lease. No representations,
25
understandings, or agreements have been made or relied upon in the making of
this Lease other than those specifically set forth herein. This Lease can only
be modified by a writing signed by all of the parties of their duly authorized
agents.
NO DISCRIMINATION 56. It is intended that the Shopping Center be
developed so that all prospective tenants and all customers, employees,
licensees and invitees of all tenants shall have the opportunity to obtain all
the goods, services, accommodations, advantages, facilities and privileges of
the Shopping Center without discrimination because of race, creed, color,
national origin or ancestry. To that end, Tenant will not discriminate in the
conduct and operation of its business in the premises against any person or
group of persons because of the race, creed, color, national origin or ancestry
of such person or group of persons.
DELAY 57. Intentionally left blank.
STORE FRONT 58. The design and construction of the store front for
the demised premises will be subject to the Landlord's approval, which shall
not be unreasonably withheld.
ESTOPPEL CERTIFICATE 59. Tenant agrees, at any time and from time to time,
upon not less than five (5) days prior written notice by Landlord, to execute,
acknowledge and deliver to Landlord or to such person(s) as may be designated
by Landlord, a statement in writing (i) certifying that Tenant is in possession
of the demised premises, has unconditionally accepted the same and is currently
paying the rents reserved hereunder, (ii) certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications), (iii) stating the dates to which the rent and other charges
hereunder have been paid by Tenant, (iv) stating whether or not to the best
knowledge of Tenant, Landlord is in default in the performance of any covenant,
agreement or condition contained in this Lease, and, if so, specifying each
such default of which notices to Tenant should be sent. Any such statement
delivered pursuant thereto may be relied upon by any owner of the Shopping
Center, any prospective purchaser of the Shopping Center, any mortgagee or
prospective mortgagee of the Shopping Center or of Landlord's interest, or any
prospective assignee of any such mortgagee.
OUTPARCEL 60. Landlord shall have the right to remove from the
Shopping Center, sell, or separately develop any outparcels whereupon such
outparcels shall, at the option of the Landlord, be removed from the definition
of the Shopping Center.
WAIVER OF JURY TRIAL 61. Tenant hereby waives all right to trial by jury in
any claim, action, proceeding or counterclaim by either Landlord or Tenant
against the other or any matters arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant and/or Tenant's use or
occupancy of the demised premises.
NO OPTION 62. The submission of this Lease for examination does
not constitute a reservation of or option for the premises, and this Lease
becomes effective only upon execution and delivery thereof by Landlord.
SECURITY DEPOSIT 63. Intentionally left blank.
BROKER'S PERMISSION 64. Intentionally left blank.
26
LESSOR'S RIGHT TO SELL
OR MORTGAGE FEE 65. Nothing contained in this lease shall limit or
curtail Landlord's right to sell, mortgage, or otherwise deal with its fee
interest in the leased premises, the ground underlying the leased premises, the
shopping center and the ground underlying the shopping center, or affect
Landlord's right to assign the net rent payable under this Lease either as
further collateral security under a fee mortgage or otherwise. Any such
assignment of rent shall be honored by Tenant.
STORES OR SHOPPING
CENTER 66. Landlord may from time to time change or alter the
size, configuration, partitions or store designations of all or any of the
stores in the shopping center and may expand the shopping center by adding
thereto additional land and buildings without the consent of, or notice to,
Tenant.
IN WITNESS WHEREOF, and intending that this Lease be a
sealed instrument, Landlord and Tenant have executed this Lease under seal on
the dates indicated beneath their respective signatures.
XXXXXXXXX VILLAGE ASSOCIATES
A Maryland Limited Partnership
INTERSTATE BUSINESS CORPORATION
General Partner
/s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- ----------------------------
WITNESS LANDLORD
Date of Execution by Landlord: 12/1/87
--------
/s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxxx
----------------------------- --------------------------------------
WITNESS TENANT
Date of Execution by Tenant: 12/1/87
----------
State of Maryland
SS:
County of Xxxxxxx
Before me, a Notary Public in and for the jurisdiction aforesaid, personally
appeared this date, Xxxxxxx Xxxxxx, personally well known (or satisfactorily
proven) to me to be the Senior Vice President of Interstate Business
Corporation, a Delaware corporation, who, being by me first duly sworn, did
acknowledge that he/she, as the duly authorized officer of said Corporation,
executed the foregoing and annexed Instrument, in the name and on behalf of
said Corporation, as its free act and deed for the uses and purposes therein
contained.
WITNESS my hand and official seal this 1st day of December, 1987.
/s/ Xxxxx Xxxxx Xxxxx
-----------------------------------
NOTARY PUBLIC
My Commission Expires: 8/22/90
-------------
27
EXHIBIT B
TENANT FIT UP SPECIFICATIONS
Xxxxxxxxx Xxxxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxxxx
Shell building and commercial finish specifications to be provided by and at
the expense of the Landlord included with the stated basic rental will be as
follows:
FLOOR:
4" thick concrete slab on grade with wire mesh reinforcement, suitable for
resilient flooring and/or carpeting. Tenant is to furnish and install floor
finish.
DEMISED PARTITIONS:
(Tenant divider partitions): 2-1/2" metal studs with 1/2" thick sound
insulation full height. Drywall to be taped, spackled, sanded, and ready
for paint.
EXTERIOR BUILDING WALLS:
Store front, back, and/or fire rated partitions at the rear of building B &
C.
PLUMBING:
Rough-in for one toilet. One 5 gallon hot water heater.
TOILET UNIT - One Each:
a. Partitions: 2-1/2" metal studs 24" o.c. with layer of 1/2" gypsum
board each side, taped, spackled, sanded and ready for paint.
b. Door and Frame: 2'8" x 6'8" x 1-3/8" thick hollow' wood door in a
wood frame with hinges and privacy latchset.
c. Water Closet:
d. Lavatory:
e. Floor Finish: Vinyl asbestos tile.
f. Base: 4" vinyl base.
g. Ceiling Finish: Same as shop except ceiling height shall be 8'0".
h. Exhaust Fan Standard.
i. Lighting Fixture: 1-100 watt incandescent.
j. Toilet Paper Holder: With mirror - Standard.
ACOUSTICAL CEILINGS:
2' x 4' x 5/8" thick Class A lay-in acoustical panels in an exposed metal
grid suspension system. Fire rated where required.
28
HEATING AND AiR CONDITIONING:
Heat Pump. Packaged system with auxiliary electric resistance, heater,
fresh air duct, power and control wiring, thermostat, air distribution
system included grilles and registers per standard drawing. Heat pump
systems shall be single or multiple units depending on size and layout of
the individual shops.
Unit Sizes: 2, 3, 3-1/2, 4, 5, 7-1/2 Tons, as indicated on plans.
ELECTRICAL:
a. Lighting: Standard 2' x 4' recessed 4 tube flourescent lay-in
fixtures, in accordance with typical lighting layout on electrical
drawings. (1 fix/85 sq. ft).
b. Receptacles: As per typical layout (1 outlet every 20').
c. Exit Lights: Exit and emergency white lights as per electrical
drawings two (2) per space. Sheet A-22.
d. Electric power: Each store to be individually metered.
e. Electrical panels:
Lighting, etc: 120/208V/3 phase 150 amp with space for single pole 20 amp
circuit breakers for lighting, hot water heater, toilet exhaust fan and
future receptacle circuits (by tenant),
Sprinklers: Owner will provide sprinklers throughout building with
typical layout. Tenant partioning requiring additional heads or the
relocation of existing heads will be at tenant expense.
DESIGN SERVICES:
Tenant to pay for required design and consultation service with
Landlord's Architect/Engineer to coordinate tenant requirements with
building standards. Tenant to apply and obtain certificate of occupancy
and other permits relating to its store area and use. Landlord's
architect to approve tenant layout and signs and plans.
29
EXHIBIT C
COMMON AREA COSTS
Xxxxxxxxx Village Center
St. Xxxxxxx, Maryland
Common area maintenance costs shall mean, for the purpose of this Lease,
all costs and expenses incurred by Landlord or others on Landlord's behalf, in
operating, maintaining, repairing and replacing those areas common to the
entire Shopping Center, for the benefit of the entire Shopping Center. Such
common area maintenance costs shall include all costs and expenses of every
kind and nature as may be paid or incurred by Landlord in operating, policing,
protecting, managing, equipping, lighting. repairing, replacing and maintaining
the common areas including but not limited to, the cost and expenses of:
1. operating, maintaining, repairing, replacing, lighting, cleaning,
sweeping, painting and resurfacing of the common areas and common area
facilities, including but not limited to: paving, vehicle area lighting
facilities, lighting and sound facilities, storm and sanitary drainage systems
and other utility conduits, systems, ducts, and similar items, fire protection
systems, sprinkler systems, utility sprinkler and security alarm systems,
Shopping Center signs on and off the Shopping Center site, Shopping Center
signs and wiring, retaining walls, curbs, gutters, fences, sidewalks, canopies,
steps, and ramps in the common areas, exclusive of casualty loss replacements
covered by insurance, and exclusive of the cost for a replacement of an asset
(or part) for which a depreciation allowance is included hereunder if such
replacement cost may not be treated as an expense deduction under Internal
Revenue Service Regulations;
2. Gardening, landscaping, and maintenance of grass, trees, and
shrubbery:
3. All premiums for all insurance maintained by Landlord in connection
with the Shopping Center, including without limitation: liability for bodily
injury, death and property damage; insurance on the Shopping Center (including
the common areas) against fire, extended coverage, theft or other casualties;
xxxxxxx'x compensation; plate glass insurance for glass exclusively serving the
common areas; sign insurance; and loss of rent insurance for up to a 12-month
period;
4. Security.
5. Personal property taxes on equipment and systems in, pertaining to,
or used in maintaining and operating the common areas and outdoor areas;
6. Utility charges and other costs of lighting the common areas, the
vehicle areas, Center signs, and other like facilities;
7. Vehicle area line painting, and removal of snow and ice;
8. Collection and removal of trash from all outdoor areas in the Center.
9. Depreciation of all machinery and equipment used in maintaining and
operating the common areas (including cleaning and snow removal equipment) and
of Center signs, fixtures and furnishings, traffic signals, which depreciation
shall be calculated on a straight line basis and on lives based upon the
Internal Revenue Service guidelines from time to time extant;
30
10. Power and fuel for operating common area equipment and systems and
for operating vehicles and equipment used for cleaning, maintenance and snow
removal; and
11. Salaries of personnel directly engaged in operating cleaning and
maintaining the common areas (including security personnel and parking
attendants), and all related payroll charges, benefits and taxes.
31
EXHIBIT D
RULES AND REGULATIONS
Xxxxxxxxx Xxxxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxxxx
Tenant shall, at all times during the term of the Lease;
1. Use, maintain and occupy the premises in a careful, safe, proper and
lawful manner, keep the premises and its appurtenances in a clean and safe
condition;
2. Keep all glass in the doors and windows of the premises clean and in
good repair;
3. Not place, maintain or sell any merchandise in any vestibule or entry
to the premises, on the sidewalks adjacent to the premises, or elsewhere on the
outside of the premises without the prior written consent of Landlord;
4. Keep the premises in a clean, orderly and sanitary condition, free of
insects, rodents, vermin and other pests;
5. Not permit undue accumulations of garbage, trash, rubbish and other
refuse in the premises, and keep refuse in closed containers within the
interior of the premises until removed.
6. Not use, permit or suffer the use of any apparatus or instruments for
musical or other sound reproduction or transmission in such manner that the
sound emanating therefrom or caused thereby shall be audible beyond the
interior of the premises;
7. Not deliver or suffer or permit delivery of merchandise to the
premises after 10:00 a.m. on any day;
8. Light the show windows and exterior signs of the premises to the
extent required in the Lease;
9. Keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the confines of the premises;
10. Not cause or permit objectional odors to emanate or be dispelled from
the premises;
11. Not overload the floors or electrical wiring and not install any
additional electrical wiring or plumbing without Landlord's prior written
consent;
12. Not use show windows in the premises for any purpose other than
display of merchandise for sale in a neat and attractive manner;
13. Not conduct, permit or suffer any public or private auction sale to
be conducted on or from the premises; and
14. Not solicit business in the common areas of the Shopping Center or
distribute handbills or other advertising materials in the common areas, and if
this provision is violated the Tenant shall pay Landlord the cost of collecting
same from the common areas for trash disposal.
32
15. Maintain an attractive display in the show windows; and
16. Discourage congregations of people in the common areas and outside
the store.
33
LEASE RENEWAL CLAUSE
The following additional provisions are hereby added to the Lease:
(a) Option to Extend
Subject to the satisfaction of the conditions precedent set forth in Paragraph
(b) below, Tenant shall have the right, at its option, to extend the term of
this Lease for two additional periods (the "Extension Period") of five (5)
years. Such extension option shall be exercisable by Tenant giving written
notice to Landlord of the exercise of such option only during the three-month
period that is at least six (6) months, but not more than nine (9) months,
prior to the expiration of the then current term of this Lease; and, upon the
exercise of such extension option, the termination date of this Lease shall
automatically be extended for five (5) years. Such Extension Period shall be
upon the same terms, covenants, and conditions as set forth in this Lease with
respect to the initial term, but subject to the rental adjustment provisions of
Paragraph (c) below. With respect to such extension option, and in the event
that (i) Tenant shall fail to exercise the same strictly within the time period
and in the manner set forth above, and/or (ii) at the time hereinabove
specified for the exercise of such option, all of the conditions precedent set
forth in Paragraph (b) below shall not have been satisfied, then such extension
option shall automatically expire and be absolutely void and of no force or
effect.
(b) Conditions Precendent.
The extension option granted to Tenant in Paragraph (a) above, shall be void
and of no force and effect unless, at the time above specified for exercising
such option, each and every one of the following conditions precedent shall
have been fully satisfied:
1. This Lease shall be in full force and effect;
2. Tenant shall be in possession of the demised premises and shall be
regularly conducting its normal business operation therein; and
3. Tenant shall not be in default (beyond any grace period granted in
this Lease for curing the same) in the performance or observance of
any of the terms, provisions, covenants and conditions of this Lease.
(c) Rent Adjustment.
Notwithstanding any other provision of this Lease, in the event the term of
this Lease is extended pursuant to the exercise by Tenant of the extension
option hereinabove granted in Paragraph (a) above, then, with respect to such
Extension Period, the rents, other charges and other economic benefits to be
derived by Landlord under this Lease shall be the same as then prevails in the
Shopping Center for new leases executed at that time. The foregoing sentence
notwithstanding, in no event shall the fixed minimum annual rental (and the
monthly installments thereof) payable hereunder during and for the Extension
Period be less than the greater of (i) the fixed minimum annual rental in
effect immediately prior to the Extension Period or (ii) the fixed minimum
annual rental during the Initial term adjusted to the Consumer Price Index (as
set forth in the following sentence). Such adjustment shall be accomplished by
multiplying the average fixed minimum annual rental in effect during the
initial term of this Lease by a fraction, the numerator of which shall be the
Consumer Price Index as of the most recent date prior to the beginning of the
34
Extension Period, and the denominator of which shall be the Consumer Price
Index as of the most recent date prior to the Rent Commencement Date. If the
fixed minimum annual rental is established by the aforesaid adjustment pursuant
to the preceding sentence, said fixed minimum annual rental shall be effective
as of the beginning of the Extension Period and shall thereafter continue in
effect as the fixed minimum annual rental required to be paid under this Lease
during the entire Extension Period subject to adjustment as described in
Article 6E of this Lease
(d) Consumer Price Index.
For all purposes of the Lease Agreement, the Consumer Price Index is hereby
defined to be the "United States Bureau of Labor Statistics, Consumer Price
Index, for Urban Wage Earners and Clerical Workers (CPl-W)", all items for
Washington, D. C. SMSA (1967 = 100); and if the Consumer Price Index shall be
discontinued or altered, Landlord and Tenant shall attempt to agree upon a
substitute index or formula, and if said parties are not able to agree upon
such substitute, the matter shall be referred to binding arbitration in
accordance with the rules of the American Arbitration Association in the State
of Maryland then prevailing.
LATE PAYMENT CHARGES
In the event that any installment or payment of minimum rent, percentage rent,
additional rent or any other sum required hereunder to be paid by Tenant to
Landlord is not received by Landlord on or before the fifth (5th) calendar day
after the same is due and payable, then, for each and every such late payment,
in addition to the payment then in arrears, Tenant shall immediately pay to
Landlord as additional rent, a service charge equal to whichever is the greater
of (i) Twenty Dollars ($20.00); or (ii) one half of one percent (.5%) of such
unpaid sum per day for each calendar day after the due date of such payment
that such payment has not been received by Landlord. The provisions herein for
late payment service charges shall not be construed to extend the date for
payment of any sums required to be paid by Tenant hereunder or to relieve
Tenant of its obligations to pay all such sums at the time or times herein
stipulated. Notwithstanding the imposition of such service charges pursuant
to this subsection (b), Tenant shall be in default under this Lease if any or
all payments required to be made by Tenant are not made at the time herein
stipulated, and neither the demand for, nor collection by, Landlord of such
late payment service charges shall be construed as a cure of such default on
the part of Tenant.
