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Exhibit 10.6
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease Agreement") made and entered into
as of the 20th day of August, 1993, by and between 7595 RICKENBACKER LLC, a
Maryland Limited Liability Company, ("Landlord"), and EXECUTIVE AMENITIES, INC.,
a Maryland Corporation ("Tenant").
WHEREAS, Landlord is the owner of land upon which it is constructing
a 38,000 square foot building in accordance with plans and specifications
attached hereto as Exhibit "A", said property, when completed, will be
identified as stated in Section 1. below ("Leased Premises"); and
WHEREAS, Tenant has been involved in the planning process and is
desirous of leasing the Leased Premises from Landlord when completed in
accordance with the plans and specifications; and
WHEREAS, Landlord desires to lease the Leased Premises to Tenant and
Tenant desires to lease the Leased Premises from Landlord in accordance with the
terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, Landlord and Tenant hereby covenant and agree as follows:
1. Leased Premises.
Landlord does hereby lease to Tenant and Tenant does hereby lease
from Landlord, upon the following terms and conditions, the following premises:
0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx.
2. Term.
A. The term of this Lease (the "Lease Term") shall commence on the
"Rent Commencement Date", and shall end twenty (20) Lease Years after said Rent
Commencement Date. The Rent Commencement Date shall be the first day of the
first calendar month after an Occupancy Permit is received on behalf of Tenant
to occupy the Leased Premises. The first "Lease Year" during the term hereof
shall be the period commencing on the Rent Commencement Date, and shall
terminate twelve (12) full calendar months thereafter. Each subsequent Lease
Year during the term hereof shall commence on the day immediately following the
last day of the preceding Lease Year, and shall continue for a period of twelve
(12) full calendar months.
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B. Notwithstanding the provisions of Section 2.A. above with respect
to the term of this Lease, Tenant shall have the option to extend the term of
this Lease for one (1) additional five (5) year period provided that at the time
of exercise of such option, Tenant is not in default under any of the terms,
provisions or conditions of this Lease. Such option shall be exercised, if at
all, by Tenant giving to Landlord written notice thereof by certified or
registered mall, at any time at least six (6) months prior to the end of the
original Lease Term. Upon the giving of such notice, the term of this Lease
shall be extended for the five (5) year period commencing at midnight on the
last day of the original Lease Term upon all of the terms, provisions and
conditions of this Lease except that the rent for such option period(s) shall be
negotiated at the time Tenant notifies Landlord of its election to exercise its
option to extend the Lease Term. In no event, however, shall the rent for any
option period be less than the rent for the last year of the preceding lease
term.
3. Rent.
A. Commencing with the Rent Commencement Date and for the first Lease
Year, Tenant covenants to pay to Landlord as fixed annual rent for the Leased
Premises (the "Rent") the sum of Two Hundred Twenty Eight Thousand
($228,000.00), payable at the rate of Nineteen Thousand ($19,000.00) Dollars per
month. Said amount shall increase each Lease Year by an amount equal to
one-hundred (100%) percent of the percentage increase in the U.S. Department of
Labor, Bureau of Labor Statistics Consumer Price Index for Urban Wage and
Clerical Earners, for the Xxxxxxxxxx, X.X. Xxxxxxxxxxxx Xxxx (0000 = 100), All
Items, at each anniversary date of the Rent Commencement Date over the
corresponding index as it existed at the previous anniversary date of the Rent
Commencement Date, and applying such percentage increase to the rent for the
previous Lease Year. In the event that the Federal Government changes the
publication frequency of the Consumer Price Index so that a Consumer Price Index
is not available to make the cost of living adjustment of Tenant's Rent, the
cost of living adjustment shall be based on the percentage difference between
the Consumer Price Index for the closest preceding month for which the Consumer
Price Index is available and the Consumer Price Index on the previous
anniversary of the Rent Commencement Date. In the event that the Consumer Price
Index is discontinued a comparable publication or Index will be used to
determine any increase. In no event shall the rent increase for any subsequent
Lease Year over the prior Lease Year be less than 5%.
All monthly installments of Rent shall be payable in advance on the
first day of each month commencing on the Rent Commencement Date.
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B. All rent shall be payable, without demand and without setoff or
other reduction, at Landlord's address as stated in Section 27.B. or such other
place as Landlord designates in writing. In the event that any Rent or
Additional Rent is not received by Landlord by the tenth (10th) day of each
month, Tenant agrees to pay Landlord a late charge equal to five (5%) of the
amount which is not timely received by Landlord.
C. 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 on any check or 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.
4. Security Deposit.
Tenant shall pay to Landlord the sum of Nineteen Thousand
($19,000.00) Dollars upon execution of this Lease, as a security deposit on the
Leased Premises. The security deposit shall be held, without interest, as
security for the full and faithful performance by Tenant of each and every term,
provision, covenant and condition of this Lease. In the event that Tenant
defaults in respect of any of the terms, provisions, covenants and conditions of
this Lease, including but not limited to the payment of any Rent or Additional
Rent, Landlord may use, apply or retain the whole or any part of the security so
deposited. In the event that the Tenant shall fully and faithfully comply with
all the terms, provisions, covenants and conditions of this Lease, the security
deposit, without interest, shall be returned to Tenant within thirty (30) days
after it surrenders the Leased Premises at the expiration of the Lease Term.
5. Use.
The Leased Premises shall be used by Tenant for office and warehouse
purposes, only. Tenant shall, at its sole cost and expense, promptly comply with
all governmental laws, ordinances and regulations (Federal, state and municipal)
applicable to the Leased Premises and Tenant's use of the Leased Premises in its
business operations. Landlord agrees to cooperate in Tenant's efforts to obtain
necessary permits and licenses to commence its business operation, provided,
however, that this shall be at the sole, cost and expense of Tenant. Tenant
shall not permit any excessive odors, smoke, dust, gas, noise or vibration to
emanate from the Leased Premises, nor take any other action which would
constitute a nuisance. Tenant shall not receive, store or otherwise handle, any
product, material or merchandise which is explosive or highly flammable. Tenant
will not permit the Leased Premises to be used for any purpose or in any manner
(including, without
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limitation, any method of storage) which would render the insurance thereon void
or increase the premiums therefor or the insurance risk. Landlord warrants that
the Leased Premises are properly zoned for the prescribed use by Tenant of the
Leased Premises.
Tenant shall not permit the storage or discharge into the earth or
its atmosphere of effluents, waste or other materials, solid, liquid or gaseous.
No waste or other materials shall be disposed of by Tenant in any way or manner
which would or will in the future cause the Tenant and/or Landlord to be liable
for fines and penalties under the laws or rules currently in effect (Federal,
state and/or municipal) or to incur expenses of any sort to correct any such
condition. Tenant shall indemnify and hold Landlord harmless from and against
any claims, fines, penalties or causes of action arising out of Tenant's failure
to comply with the provisions of this Section.
6. Surrender.
Tenant agrees that it will keep the Leased Premises and the fixtures
therein, in good order and condition and will at the expiration or termination
of the Lease Term, surrender and deliver up the Leased Premises in as good a
condition as they were at the commencement of the Lease Term, ordinary wear and
tear and damage by insured casualty not due to the negligence of Tenant
excepted.
7. Tenant's Repairs and Maintenance.
Tenant shall, at its own cost and expense, maintain the interior and
exterior of the Leased Premises, structural and nonstructural items, in good
condition, promptly making all necessary repairs and replacements, including,
but not limited to roof, driveways, sidewalks, windows, glass and plate glass,
doors, walls and finish work, floors and floor coverings, the sprinkler system,
if any, as well as all plumbing work and fixtures, inside and outside, termite
and pest extermination, regular removal of trash and debris and keep the Leased
Premises in a clean and sanitary condition. Tenant agrees that it will at the
time of occupancy, inspect the Leased Premises and take all equipment therein
including, but not limited to, the plumbing and electrical systems, the
sprinkler system, and HVAC, "as is" and that Landlord will make no
representation or warranty in connection therewith.
8. Alterations.
Without Landlord's prior written consent, Tenant shall not make any
alterations, additions or improvements to the Leased Premises. All alterations,
additions and improvements erected by Tenant shall be the property of Tenant
during the term of this Lease and Tenant shall, unless Landlord otherwise elects
as hereinafter provided, remove all such alterations, additions and improvements
and
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restore the Leased Premises to their original condition by the termination of
this Lease; provided, however, that if Landlord so elects prior to the
termination of this Lease, such alterations, additions and improvements shall
become the property of Landlord as of the date of the termination of this Lease,
and shall be delivered to Landlord with the Leased Premises. All shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant prior
to the termination of this Lease, if Tenant so elects, and shall be removed by
the date of the termination of this Lease if required by Landlord. Upon any such
removal, Tenant shall restore the Leased Premises to their original condition,
reasonable wear and tear excepted. All such removals and restorations shall be
accomplished in a good workmanlike manner so as not to damage the primary
structure or structural qualities of the Leased Premises.
All of the alterations, additions, improvements, repairs and
maintenance required of or made by, Tenant must conform to all regulations and
requirements of Federal, state and local governments.
Notwithstanding the foregoing, any such alterations, additions,
improvements, repairs and maintenance required of or made by Tenant shall not be
deemed to be an agreement or consent by Landlord to subject Landlord's interest
in the Leased Premises to any mechanic's or materialmen's liens which may be
filed in connection therewith.
9. Inspection.
Landlord (or its agents and employees) shall have the right to enter
and inspect the Leased Premises at any time, for the purpose of ascertaining the
condition of the Leased Premises or in order to make repairs. Landlord shall not
be liable to Tenant for any damages of any kind whatsoever caused by Landlords
inspection, repair, or maintenance of the Leased Premises, unless caused by the
gross negligence of Landlord. Landlord shall also have the right to enter the
Leased Premises at any reasonable time during business hours for the purpose of
showing the Leased Premises to prospective new tenants or potential buyers, and
shall have the right to erect on the Leased Premises a suitable sign indicating
the Leased Premises are available for rent and/or sale. Landlord shall use its
best efforts to minimize disruption to Tenant's business operations during such
entry or inspection. Tenant shall give written notice to Landlord at least sixty
(60) days prior to vacating the Leased Premises and shall arrange to meet with
Landlord for a joint inspection of the Leased Premises prior to vacating. In the
event of Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the Leased Premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
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10. Utilities.
Tenant shall be responsible for the payment of all bills for
electricity, gas, sewer, water, telephone, and all other utilities used in the
Leased Premises. Tenant shall, where possible, place the above-referenced
utility services in Tenant's name. Tenant shall maintain a level of heat in the
Leased Premises which shall insure that the inside pipes and plumbing fixtures
will not freeze and break, and Tenant shall be responsible for any repairs and
replacements to said pipes and fixtures and any damage to the Leased Premises
and personal property arising from freezing pipes and fixtures.
Any failure in the services of utilities provided in or on the Leased
Premises shall not render Landlord liable in any respect for damages to either
person or property or the business of Tenant, nor be construed as an eviction of
Tenant, nor work an abatement of any Rent, or Additional Rent, nor relieve
Tenant from Tenant's obligations hereunder. In no event shall Landlord be
obligated to provide any such services or utilities in any manner or to any
extent.
11. Real Property Taxes.
Tenant agrees to pay to Landlord throughout the term of this Lease,
as Additional Rent, any and all real property taxes, assessments, and levies
assessed against the Leased Premises during each tax year ("Real Property
Taxes"). Tenant covenants and agrees to deposit monthly, in advance, and if
requested by Landlord, with Landlord on the first day of each calendar month
throughout the Lease Term an amount equal to one-twelfth (1/12th) of Landlord's
estimate of the Real Property Taxes for the next succeeding tax fiscal year. The
first installment shall be due and payable by Tenant on the Rent Commencement
Date, without proration, and the next installment shall be paid on the first day
of the next calendar month. Any underpayment of Tenant's obligations not covered
by the accumulation of monthly deposits shall be paid by Tenant within fifteen
(15) days of Landlord's demand and any overpayment shall be credited against the
installments next coming due. Any interest earned on the escrow deposits payable
hereunder shall be and remain the property of Landlord.
Should any governmental taxing authority acting under any present or
future law, ordinance or regulation, levy, assess, or impose a tax, excise
and/or assessment (other than an income or franchise tax) upon or against the
Rent, or any part of it, payable by Tenant to Landlord, either by way of
substitution (in whole or in part) for or in addition to any existing tax on the
Leased Premises or otherwise, Tenant shall be responsible for and shall pay such
tax, excise and/or assessment, or shall reimburse Landlord for the amount
thereof within thirty (30) days of demand, as the case may be.
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Reasonable expenses incurred by Landlord in obtaining or attempting to
obtain a reduction of any Real Property Taxes shall be added to and included as
Additional Rent. Real Property Taxes which are being contested by Landlord shall
nevertheless be included for purposes of computing Tenant's liability hereunder,
but if Tenant shall have paid any amount of Additional Rent pursuant to this
Section 11, and thereafter Landlord shall receive a refund of any portion of any
Real Property Taxes on which such payment shall have been based, Landlord shall
pay to Tenant such refund. Landlord shall have no obligation to contest, object
to or litigate the levy or imposition of any Real Property Taxes and may settle,
compromise, consent to, waive or otherwise determine in its discretion any Real
Property Taxes without the consent or approval of Tenant.
In the event any governmental authority includes in the tax base upon
which the Real Property Taxes are levied or assessed the value of any
improvements made by Tenant, or of any machinery, equipment, fixtures, inventory
or other personal property or assets of Tenant, then Tenant shall pay the entire
portion of the Real Property Taxes attributable to or based upon such items in
addition to the portion of the Real Property Taxes payable by Tenant as
otherwise provided in this Section.
Tenant agrees to pay before delinquency all taxes imposed on or
incidental to the personal property of Tenant, the conduct of its business and
its use and occupancy of the Leased Premises.
12. Assignment and Subletting.
Tenant shall not mortgage this Lease or any estate or interest
therein. Tenant shall not assign this Lease, in whole or in part, or sublet all
or any portion of the Leased Premises, without first obtaining the Landlord's
written consent, which consent can be given or withheld by the Landlord in
Landlord's sole and absolute discretion. This prohibition includes any
subletting or assignment which would otherwise occur by operation of law,
merger, consolidation, reorganization, transfer or other change of Tenant's
corporate or proprietary structure, or any assignment or subletting to or by a
receiver or Trustee in any bankruptcy, insolvency, or other proceedings. Any
change in ownership or power to vote a majority of the issued and outstanding
voting stock of Tenant, shall constitute an assignment for the purpose of this
Lease and shall require the written consent of Landlord as provided in this
Section. Consent by Landlord to any assignment or subletting shall not
constitute a waiver of the requirement for Landlord's consent to any subsequent
assignment or subletting. The acceptance by Landlord of the payment of rent
following any assignment or subletting shall not be deemed to be a consent by
Landlord to such assignment or subletting.
It is expressly understood and agreed that in the event Landlord
approves a sublease by Tenant such approval shall not be construed as a waiver
or release of
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Tenant from the terms of any covenant or obligation under this Lease, nor shall
the collection or acceptance of any rent from any such subtenant constitute a
waiver or release of Tenant of any covenant or obligation contained in this
Lease, nor shall any such subletting be construed to relieve Tenant from giving
Landlord notice or from obtaining the consent in writing of Landlord to any
future subletting. In the event that Tenant defaults hereunder, Tenant hereby
assigns to Landlord the rent due from any subtenant of Tenant and hereby
authorizes each such subtenant to pay said rent directly to Landlord. In
addition, if the rents and other amounts due and payable under any sublease for
any period shall exceed the rents and other amounts payable for the Leased
Premises pursuant to this Lease, then Tenant shall pay one hundred (100%)
percent of such excess to Landlord, as Additional Rent, as and when received by
Tenant.
Landlord may freely and fully assign its interest hereunder. In the
event of any transfer of title to the Leased Premises, or of Landlord's interest
in the Leased Premises, the transferor shall be relieved of all obligations of
Landlord under this Lease accruing after such transfer and it shall be deemed,
without further agreement, that such transferee has assumed and agreed to
perform and observe all obligations of Landlord herein during the period it is
the holder of transferor's interest under this Lease and further, it is hereby
agreed that Tenant shall be bound to such transferee Landlord in accordance with
all of the obligations as Tenant as set out in this Lease.
13. Fire and Casualty Damage.
In the case of the total destruction, or the destruction of a
substantial part of the Leased Premises by fire, other casualties, the elements
or other cause, or of such damage thereto as shall render the Leased Premises or
a substantial part thereof totally unfit for occupancy by Tenant, this Lease, at
the option of Landlord, by giving of written notice to the Tenant within ninety
(90) days after the date of such destruction or damage, shall terminate and be
at an end. In the event of termination, Tenant shall surrender and deliver to
Landlord the Leased Premises together with payment of the Rent and Additional
Rent to the date of such occurrence. For purposes of this Section, a
"substantial part" shall mean fifty (50%) percent or more of the Leased
Premises.
If the Lease does not terminate pursuant to the foregoing provisions
or there is only a partial destruction of the Leased Premises, the Landlord
shall, at its own expense, restore the Leased Premises with all reasonable
diligence, and the Rent shall be abated proportionately based upon the square
foot area of the Leased Premises still tenantable, from the date of casualty to
the date that the Leased Premises shall be fully restored by the Landlord.
Landlord, however, shall not be required to expend any sums in excess of
insurance proceeds received for purposes of such restoration. No compensation,
claim or diminution of Rent will be allowed
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or paid, by Landlord, by reason of inconvenience, annoyance, or injury to
business arising from the necessity of repairing the Leased Premises. In no
event shall Landlord be required to rebuild, repair, or replace any part of the
partitions, fixtures, additions and other improvements which may have been
placed in, on or about the Leased Premises by Tenant. Notwithstanding the
foregoing, if the restoration of the Premises is not completed within six (6)
months from the date of destruction or damage, then either party shall have the
right to terminate this Lease by notice given within fifteen (15) days
thereafter; otherwise the Lease shall continue.
14. Liability and Indemnification.
Landlord shall not be liable for any losses, damages, injuries or
accidents of any kind however or by whatever or whomever caused, arising from
any occurrence on or about the Leased Premises or the occupancy or uses by
Tenant of the Leased Premises or caused by any act or omission of Tenant, its
agents, servants, employees, assignees, customers or invitees, unless caused by
the gross negligence of Landlord and covered by casualty or liability insurance.
Notwithstanding any other provision of this Lease to the contrary, except to the
extent expressly prohibited by law, Tenant hereby waives any claim it might have
against Landlord or any partner, officer, director, employee or agent of
Landlord, for any consequential damages sustained by Tenant arising out of the
loss or damage to any person or property of Tenant. In addition, Tenant agrees
only to look to Landlord's interest in the Leased Premises for recovery of any
Judgment from Landlord, it being specifically agreed that Landlord shall not be
personally liable for any such Judgment.
Tenant shall indemnify Landlord, and shall save it harmless from and
against any and all claims, actions, damages, liability and expense, including
reasonable attorneys' fees, in connection with loss of life, personal injury or
damage to property arising from any occurrence in or about the Leased Premises,
or from the occupancy or uses by Tenant of the Leased Premises, or caused by any
act or omission of Tenant, its agents, servants, employees, assignees, customers
or invitees, including, but not limited to, the filing of any mechanics' or
materialmen's liens against the Leased Premises, unless caused by the gross
negligence of Landlord and covered by casualty or liability insurance.
Tenant shall pay all costs and expenses, including reasonable
attorneys' fees and court costs, that may be incurred by Landlord in enforcing
any of the covenants and agreements in this Lease or in enforcing a termination
of this Lease pursuant to Section 21. below.
15. Insurance.
At all times after the execution of this Lease, Tenant will carry and
maintain at Tenant's sole cost and expense:
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A. Public liability insurance with respect to the Leased Premises, to
afford protection with limits of not less than $1,000,000.00 with respect to
personal injury or death, and $100,000.00 with respect to property damage;
B. If and to the extent required by law, workmen's compensation or
similar insurance in form and amounts required by law;
C. Fire, vandalism and extended coverage insurance with respect to
Tenant's improvements and fixtures, equipment and other property in the Leased
Premises;
The insurance policies evidencing such insurance shall be maintained
with insurance companies approved by Landlord, shall name Landlord as an
additional named insured and shall also contain a provision by which the insurer
agrees that such policies shall not be cancelled except after thirty (30) days
written notice to Landlord. Upon execution of this Lease and annually
thereafter, and upon request by Landlord, Tenant shall deliver to Landlord a
certificate from the insurers evidencing each such policy to be in effect.
Each Insurance policy carried by Tenant pursuant to this Section 15.,
shall provide, if agreed to by the insurance company, that the insurance company
waives all rights of recovery by way of subrogation against Landlord in
connection with all matters included within the scope of such policies.
Notwithstanding the foregoing, if the Leased Premises are ever
subject to a Deed of Trust and the Lender requires any additional or different
coverage or requires any other provisions to be inserted into the insurance
contract, then Tenant agrees to insure that the same is accomplished, all at the
cost and expense of Tenant.
16. Condemnation.
If less than a substantial part of the Leased Premises shall be
taken, condemned or sold for public or quasi-public use or purpose by or to any
competent authority, then this Lease shall not terminate except as to the part
taken. The Lease will terminate as to the part taken as of the date when title
vests in any such authority. Tenant shall pay Rent and Additional Rent covering
only that part of the Leased Premises not so taken; the Rent for such space
shall be that portion of the total Rent and Additional Rent which the amount of
square foot area remaining bears to the total square foot area of all of the
Leased Premises. Tenant agrees that if the entire Leased Premises, or a
substantial part thereof, shall be taken or condemned or sold for public or
quasi-public use or to any competent authority, this Lease shall terminate as to
the entire Leased Premises as of the date when title vests in such authority.
Tenant shall have no claim against Landlord and shall have no
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claim or right to any portion of the amount awarded as damages or paid as a
result of any condemnation. Upon such condemnation or taking, Tenant shall have
no claim against Landlord for the value of any unexpired term of this Lease,
leasehold improvements or goodwill. For purposes of this Section, a "substantial
part" shall mean fifty (50%) percent or more of the Leased Premises.
Notwithstanding the foregoing provisions of this Section, Tenant
shall be entitled to make a separate claim against the condemning authority for
loss of its leasehold interest or other damages provided that the amount of
Landlord's award shall not be reduced thereby.
If less than a substantial part of the Leased Premises be taken by
condemnation, or the Lease is not terminated in accordance with the foregoing
provisions, Landlord shall, upon receipt of the award of condemnation, make all
necessary repairs or alterations to the Leased Premises so as to constitute the
Leased Premises a complete architectural unit, but Landlord shall not in any
event be required to spend for such work more than the amount received by
Landlord as damages. Tenant, at its sole cost and expense, shall, with respect
to all signs, trade fixtures, equipment, display cases, furniture, furnishings
and other installations of Tenant restore such part of the Leased Premises as is
not taken to as near to its former condition as possible.
Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Leased Premises requires that the condemnation proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon all rights and
obligations under this Lease shall terminate.
17. Holding Over.
Tenant will, at the termination of this Lease, yield immediate
possession to Landlord. However, if Tenant holds over, then unless the parties
hereto otherwise agree in writing on the terms of such holding over, the hold
over tenancy shall be subject to termination by Landlord at any time upon not
less than thirty (30) days advance written notice, or by Tenant at any time upon
not less than thirty (30) days advance written notice. However, in the event of
nonpayment of Rent or Additional Rent or any other payments required to be made
by Tenant hereunder, when due, or of the breach of any other covenant herein
contained by Tenant, Tenant shall not be entitled to any notice to quit, the
usual thirty (30) days' notice to quit being hereby waived. All of the other
terms and provisions of this Lease shall be applicable during that period,
except that Tenant shall pay Landlord from time to time upon demand as rental
for the period of any holdover, an amount equal to
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twice the rent in effect on the Lease termination date, computed on a daily
basis for each day of the holdover period; provided, however, that if Tenant is
holding over with Landlord's written consent, the monthly rental to be paid
shall equal the monthly rental previously paid for the last month of the initial
term of this Lease. No holding over by Tenant, whether with or without consent
of Landlord, shall operate to extend this Lease except as otherwise expressly
provided herein or in a written amendment to this Lease. This Section shall not
be construed as Landlord's consent for Tenant to hold over.
In the event Tenant shall hold over after the expiration of the term
hereby created, and if Landlord shall desire to regain possession of the Leased
Premises promptly at the expiration of the term aforesaid, then at any time
prior to Landlord's acceptance of Rent from Tenant as a monthly tenant
hereunder, Landlord may forthwith re-enter and take possession of the Leased
Premises without process, or by any legal process in force.
18. Quiet Enjoyment.
Landlord covenants that it now has good title to the Leased Premises
and represents and warrants that it has full right and authority to enter into
this Lease and that Tenant, upon paying the rent and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold and enjoy the Leased Premises for the term of the Lease without hinderance
or molestation from Landlord, subject, however, to the terms and provisions of
this Lease.
19. Lien for Rent.
Tenant hereby grants to Landlord a lien on all personal property of
Tenant now or hereafter placed in or on the Leased Premises and such property
shall be and remain subject to such lien of Landlord for payment of all Rent,
Additional Rent and all other sums agreed to be paid by Tenant herein or for
costs relating to the Leased Premises that Tenant may hereafter agree to pay to
Landlord. Said lien shall be in addition to and cumulative of the Landlord's
lien rights provided by law.
20. Events of Default.
The following events shall be deemed to be events of default by
Tenant under this Lease:
A. Tenant shall fail to pay any installment of the Rent, Additional
Rent, or any other payment or reimbursement to Landlord required herein, when
due, and such failure shall continue for a period of five (5) days from the date
such payment is due.
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B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any chapter of the Bankruptcy
Reform Act, as amended, or under any similar law or statute of the United
States, the District of Columbia or any State, or a petition is filed against
Tenant and such petition is not dismissed within thirty (30) days of filing.
D. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant. If said receiver shall be appointed pursuant to the
petition of someone other than Tenant, if such appointment is not terminated
within thirty (30) days of appointment.
E. Tenant shall vacate or abandon the Leased Premises for ten (10)
consecutive days, unless such vacating or abandonment is a result of alteration,
renovation, fire or condemnation and Tenant manifests an intention to return.
F. The taking of this Lease or the Leased Premises or any part thereof
upon execution or by other process of law directed against Tenant, or upon or
subject to any attachment at the instance of any creditor of or claimant against
Tenant, which shall not be discharged or disposed of within thirty (30) days
after the levy thereof.
G. Tenant shall fail to comply with any term, provision or covenant of
this Lease, other than the payment of Rent, Additional Rent and other charges,
and shall not cure such failure, within thirty (30) days after written notice
thereof to Tenant, or if cure, cannot be made within thirty (30) days, if Tenant
shall fail to diligently begin curing such failure within said thirty (30) day
period. However, any such failure to comply with the terms of this Lease must be
cured within a reasonable time after Landlord's initial notice to Tenant and
Tenant must make all diligent attempts to cure this failure as soon as possible
after Landlord's initial notice.
21. Remedies.
Upon the occurrence of any of the events of default, then, at the
option of Landlord, Tenant's right of possession shall thereupon terminate, and
Landlord shall be entitled to possession of the Leased Premises. Landlord may
proceed to recover possession either by forcible reentry without process of law
or by process of law. Any notice to quit, or of intention to reenter the Leased
Premises, is hereby expressly waived by Tenant. In the event of such reentry by
process of law or otherwise, Tenant nevertheless agrees to remain answerable for
any and all damages, including, but not limited to, reasonable attorneys' fees,
brokerage fees, expenses of placing the Leased Premises in first class rentable
condition and
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deficiency or loss of rent which Landlord may sustain by such reentry, whether
or not Landlord re-lets the Leased Premises, plus interest from the date due to
date of payment in the amount of one (1%) percent per month. In the event of
reentry, Landlord shall have full power, which is hereby acceded to by Tenant,
to re-let the Leased Premises for and on behalf of Tenant. Whether or not
Landlord re-lets the Leased Premises, Landlord shall have the right both to xxx
each month for loss of rents, additional rents, and monthly deficits and to xxx
immediately for all Rent, Additional Rent and monthly deficits due as of the
date of default and due for the remaining term of the Lease, such rentals for
the remainder of the term to be accelerated at Landlord's option. The
commencement or maintenance of any one or more actions shall not bar Landlord
from bringing subsequent actions for further accruals pursuant to provisions of
this Section. Anything to the contrary notwithstanding, Landlord may, at its
option, await the expiration of the term of this Lease before seeking to recover
any such rents, additional rents and monthly deficits, in which event the causes
of action shall not be deemed to have accrued until the date of expiration of
said term.
Tenant on behalf of itself and all persons claiming through Tenant,
including all creditors, does hereby waive any and all rights and privileges, so
far as is permitted by law, which Tenant and all such persons might otherwise
have under any present or future law (i) to the service of any notice of
intention to reenter, (ii) to reenter or repossess the Leased Premises, or (iii)
to restore the operation of this Lease, with respect to any dispossession of
Tenant by judgment or warrant of any court, whether such dispossession, reentry,
expiration or termination be by operation of law or pursuant to the provisions
of this Lease.
Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies provided herein or by law, nor shall pursuit of any
remedy herein provided constitute, a forfeiture or waiver of any Rent or
Additional Rent due to Landlord or of any damages accruing to Landlord by reason
of the violation of any of the other terms, provisions and covenants of this
Lease. No act or thing done by Landlord or its agents during the Lease Term
shall be deemed a termination of this Lease or an acceptance of the surrender of
the Leased Premises, and no agreement to terminate this Lease or accept a
surrender of the Leased Premises shall be valid unless it is in writing and
signed by Landlord. No waiver by Landlord of any violation or breach of any of
the terms, provisions and covenants herein contained shall be deemed a waiver of
any other violation or breach of any of the terms, provisions and covenants of
this Lease. Landlord's acceptance of the payment of Rent or other payments
hereunder after the occurrence of an event of default shall not be construed as
a waiver of such default, unless Landlord so notifies Tenant in writing.
Forbearance by Landlord to enforce one or more of its remedies upon an event of
default shall not constitute a waiver of such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default.
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22. Landlord's Cure of Default by Tenant; Reimbursement of Expenses.
If Tenant defaults in making any payment or in doing any act herein
required, then Landlord may, but need not, make such payment or do such act. If
Landlord makes any such payment or incurs any charge or expense, on behalf of
Tenant under the terms of this Lease, the amount of the payment or expense,
shall constitute, Additional Rent hereunder, and shall, unless otherwise
provided herein, be due and payable within ten (10) days after Landlord sends a
written invoice therefor; provided, however, that the making of any such payment
or the doing of such act by Landlord shall not cure such default by Tenant, or
estop Landlord from pursuing any remedy to which Landlord would otherwise be
entitled.
23. Subordination.
This Lease is subject and subordinate to all ground or underlying
leases, and to any mortgage or deed of trust (which terms shall include both
construction and permanent financing) that may now or hereinafter encumber or
otherwise affect the Leased Premises or Landlord's leasehold interest therein,
and to all renewals, extensions, modifications, consolidations, replacements,
and/or refinancings thereof. This clause shall be self-operative, and no further
instrument of subordination shall be required by any mortgagee or trustee to
effect the subordination of this Lease. Nonetheless, in confirmation of such
subordination, Tenant shall, at Landlord's request, promptly execute any
requisite or appropriate certificate or document. Tenant hereby constitutes and
appoints Landlord as Tenant's attorney-in-fact to execute any stock certificates
or documents on behalf of Tenant. Tenant further covenants and agrees that it
will, at the written request of the party secured by a mortgage or deed of
trust, execute, acknowledge and deliver any instrument to effect the
subordination of this Lease to such mortgage or deed of trust. Tenant agrees
that in the event that any proceedings are brought for the foreclosure of such
mortgage or deed of trust, Tenant shall attorn to the purchaser at such
foreclosure sale, if requested to do so by the Purchaser, and to recognize the
purchaser as Landlord under this Lease, and Tenant waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give Tenant any
right to terminate this Lease in the event that any such foreclosure proceeding
occurs.
24. Estoppel Certificates.
Tenant agrees, upon not less than five (5) days written notice by
Landlord, to execute, acknowledge and deliver to Landlord, a statement in
writing: (i) certifying that this Lease is unmodified and in full force and
effect, or if there have been modifications, that this Lease is in full force
and effect as modified and stating any such modifications; (ii) certifying that
Tenant has accepted possession of the Leased Premises; (iii) stating that no
rent under this Lease has been paid more than thirty
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(30) days in advance of its due date (other than the security deposit); (iv)
stating the address to which notices to Tenant should be sent; (v) certifying
that Tenant, as of the date of any such certification, has no charge, lien or
claim of set-off under this Lease, or otherwise, against rents or other charges
due or to become due hereunder; and (vi) stating whether or not to the best of
Tenant's knowledge, 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 Tenant may have knowledge. Any such statement delivered
pursuant hereto maybe relied upon by any owner of the Leased Premises, any
prospective purchaser of the Leased Premises, any mortgagee, or prospective
mortgagee of the Leased Premises or of Landlord's interest, or any prospective
assignee of any sub-mortgagee.
25. Mechanics' Lien.
Tenant shall have no authority, express or implied, to create or
place any lien or encumbrance upon, or in any manner to bind, the interest of
Landlord in the Leased Premises or to charge the rentals payable hereunder for
any claim in favor of any person dealing with Tenant, including those who may
furnish materials or perform labor or any construction or repairs. Tenant
covenants and agrees to pay all sums legally due and payable by it on account of
any labor performed or materials furnished on the Leased Premises on which any
lien is or can be validly and legally asserted against its leasehold interest in
the Leased Premises. If any mechanics' or materialmen's lien is filed against
the Leased Premises for work furnished to Tenant such lien shall be discharged
by Tenant within ten (10) days, at Tenant's sole cost and expense, by the
payment thereof or by filing any bond required by law. If Tenant fails to
discharge any such mechanics' or materialmen's lien, Landlord may, at its
option, discharge the same and treat the cost thereof as Additional Rent payable
with the monthly installment of Rent next becoming due. In no event, however,
shall such payment by Landlord cure such default by Tenant or estop landlord
from pursuing any remedy to which Landlord would otherwise be entitled.
26. Financing Requirements.
In the event that any bank, insurance company, or other financial
institution providing mortgage financing for the Leased Premises requires, as a
condition of such financing, that modification to this Lease be obtained, and
provided that such modifications (a) are reasonable, (b) do not adversely affect
Tenant's use of the Leased Premises as herein permitted under the terms of the
Lease, and (c) do not increase the rentals and other sums required to be paid by
Tenant hereunder, Landlord shall submit such required modifications to Tenant,
and Tenant shall execute an Amendment hereto incorporating such modifications
within ten (10) days after the same has been submitted to Tenant. If Tenant
shall fail to so execute such an amendment, then Landlord shall thereafter have
the right to terminate this
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Lease, by giving Tenant written notice of such termination, and Landlord shall
thereupon be relieved from any further obligations hereunder.
27. Notices.
A. All Rent, Additional Rent and other payments required to be made
by Tenant to Landlord hereunder shall be payable to Landlord at the address set
forth in Section B. below or at such other address as Landlord may specify from
time to time by written notice.
B. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether or not actually received, when
deposited in the United States Mail, postage prepaid, Certified or Registered
Mail, addressed to the parties at the respective addresses set out below, or at
such other address as they have specified by written notice delivered in
accordance herewith:
IF TO LANDLORD: 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx
IF TO TENANT: Tenant hereby elects the Leased Premises as its domicile
for the purpose of service of all notices, writs or other legal
documents, or process, in any action or proceeding which Landlord
may undertake under this Lease.
28. No Partnership.
Nothing contained in this Lease shall be construed to create a
partnership or joint venture of or between Landlord and Tenant, or create any
other relationship between those parties other than that of Landlord and Tenant.
Any intention to create a joint venture, partnership or agency relationship
between the Landlord and Tenant is hereby expressly disclaimed. Nothing
contained in this Lease shall be construed so as to confer upon any other party
the rights of a third-party beneficiary.
29. No Representations by Landlord.
Neither Landlord nor any agent or employee of Landlord has made any
representations or promises with respect to the Leased Premises except as herein
expressly set forth, and no rights, privileges, easements or licenses are
required by Tenant except as herein set forth. Tenant, by taking possession of
the Leased Premises, shall accept the same "as is" and such taking of possession
shall be conclusive evidence that the Leased Premises is in good and
satisfactory condition at the time of such taking of possession.
30. Brokers.
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Landlord and Tenant each represent and warrant one to the other that
no one else, has carried on the negotiations relating to this Lease.
31. Waiver of Trial by Jury.
Tenant hereby waives its right to a trial by jury in any action,
proceeding or counterclaim, brought by either of the parties hereto on any
matters in any way connected with this Lease, the relationship of Landlord and
Tenant, and/or Tenant's use or occupancy of the Leased Premises.
32. Waiver of Redemption.
Tenant hereby expressly waives, for itself and all persons claiming
by, through, or under it, any right of redemption or for the restoration of the
operation of this Lease under any present or future law in case Tenant shall be
dispossessed for any cause, or in case Landlord shall obtain possession of the
Leased Premises as provided herein.
33. Net Lease.
It is the intention of Landlord and Tenant that this Lease is a net
lease and that Landlord shall only be responsible for those items and expenses
which are expressly made Landlord's responsibility herein, and all other items
and expenses shall be borne by Tenant, including all fees and assessments.
34. Binding Effect of Lease.
It is agreed that all rights, remedies and liabilities of the parties
hereto shall extend to their respective heirs' executors, administrators and,
except as otherwise expressly provided in this Lease, their successors and
permitted assigns.
35. Rules and Regulations.
Tenant, its agents, employees, invitees, licensees, customers,
clients, and guests shall at all times abide by and observe all rules or
regulations as may be promulgated from time to time by Landlord, provided a copy
is sent to Tenant, for the operation and maintenance of the Leased Premises.
Nothing contained in this Lease shall be construed to impose upon Landlord any
obligation to enforce such rules and regulations.
36. Applicable Law.
The laws of the State of Maryland shall govern the validity,
performance and enforcement of this Lease.
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37. Time of Essence.
Time is of the essence with respect to the performance of Tenant's
obligations under the Lease.
38. Acceptance of Charges.
Tenant's failure to object to any statement, invoice or xxxx rendered
by Landlord within five (5) days of its receipt shall constitute Tenant's
acquiescence with respect thereto and shall render such statement, invoice or
xxxx an account stated between Landlord and Tenant.
39. Survival of Terms.
All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including, without
limitation, all payment obligations with respect to Rent, and Additional Rent
and all obligations and indemnifications concerning the condition of the Leased
Premises. Upon the expiration or earlier termination of the term hereof, and
prior to Tenant vacating the Leased Premises, Tenant shall pay to Landlord any
amount reasonably estimated by Landlord as necessary to put the Leased Premises
in good condition and repair, reasonable wear and tear excepted. All such
amounts shall be used by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied.
40. Partial Invalidity.
If any provision of this Lease or the application thereof to any
person or circumstances shall to any extent be held void, unenforceable or
invalid, then the remainder of this Lease or the application of such provision
to persons or circumstances other than those as to which it is held void,
unenforceable or invalid shall not be effected thereby, and each provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
41. Corporate Tenant.
If Tenant is a corporation, the persons executing this Lease on
behalf of Tenant hereby covenant and warrant that: Tenant is a duly constituted
corporation qualified to do business in the state in which the Premises are
located; all Tenant's franchises and corporate taxes have been paid to date; all
future forms, reports, fees and other documents necessary for Tenant to comply
with applicable laws will be
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filed by Tenant when due; and such persons are duly authorized by the board of
directors of such corporation to execute and deliver this Lease on behalf of the
corporation.
42. Miscellaneous.
A. Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural and vice versa, in any place in which the context so
requires.
B. If Tenant is a corporation or other entity, Tenant agrees to
furnish to the Landlord, promptly upon demand, appropriate documentation
evidencing the valid creation and existence of Tenant as a corporation or other
entity, and proof of due authorization by the Shareholders, Board of Directors
and/or owners of Tenant to enter into this Lease.
C. The captions, paragraph numbers and index appearing in this Lease
are for convenience of reference only, and in no way define, limit or otherwise
describe, explain, modify or amplify the interpretation or construction of any
provision of this Lease.
D. Whenever reference is made to Landlord hereunder the same shall
include the Landlord's partners, agents, and employees.
E. Landlord and Tenant each acknowledge that they have had full
opportunity to obtain legal counsel prior to executing this Lease.
43. Entire Agreement.
This Lease contains the entire and only agreement between the
parties. No oral statements or representations or prior written matter not
contained or referred to in this Lease shall have any force or effect. This
Lease shall not be modified in any way except by a writing executed by both
parties hereto. No waiver of any provision of this Lease shall be deemed to have
been made unless it is in writing and signed by both parties hereto.
44. Multiple Copies.
The parties may execute multiple copies of this Lease, each of which
shall be deemed an original.
IN WITNESS WHEREOF, the parties have duly executed this Lease under
seal as of the day and year first above written.
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LANDLORD:
7595 RICKENBACKER LLC
BY: /s/
------------------------------
Authorized Signatory
TENANT:
EXECUTIVE AMENITIES, INC.
BY: /s/ Xxxxxx X. Xxxxx
------------------------------
Authorized Signatory
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT to lease (the "Amendment") between 7595
Rickenbacker LLC ("Landlord") and Executive Amenities, Inc. ("Tenant") is made
as of the 12th day of May, 1994.
WITNESSETH:
WHEREAS, on August 20, 1993, Landlord and Tenant executed a Lease
Agreement for the premises located at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxx (the "Lease"); and
WHEREAS, in order to enable Landlord to obtain the permanent financing
on the leased premises from the US Small Business Administration (the "SBA"),
the termination date of the Lease must be later than the maturity of the SBA
loan; and
WHEREAS, Landlord and Tenant desire to amend the Lease to extend the
term of lease.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, Landlord and Tenant hereby covenant and agree as follows:
1. Term. Paragraph 2.A. of the Lease shall be deleted in its entirety
and the following shall be in its place and stead:
"A. The term of this Lease (the "Lease Term") shall commence on the
"Rent Commencement Date", and shall end twenty (20) Lease Years and one
(1) full calendar year after said Rent Commencement Date. The Rent
Commencement Date shall be the first day of the first calendar month
after an Occupancy Permit is received on behalf of Tenant to occupy the
Leased Premises. The first "Lease Year" during the term hereof shall be
the period commencing on the Rent Commencement Date, and shall
terminate twelve (12) full calendar months thereafter. Each subsequent
Lease Year during the term hereof shall commence on the day immediately
following the last day of the preceding Lease Year, and shall continue
for a period of twelve (12) full calendar months."
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IN WITNESS WHEREOF, the parties have duly executed this Amendment
under seal as of the day and year first above written.
LANDLORD:
7595 RICKENBACRER LLC
BY: /s/
------------------------------
Authorized Signatory
TENANT:
EXECUTIVE AMENITIES, INC.
BY: /s/ Xxxxxx X. Xxxxx
------------------------------
Authorized Signatory
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