WHITE XXXXX BUSINESS CENTER
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, is made as of this _____ day of November, 1988,
between WHITE XXXXX BUSINESS CENTER LIMITED PARTNERSHIP, a limited
partnership organized and existing under the law of Maryland ("Landlord"),
and TOWSON COPY PRODUCTS, INC., a Maryland corporation ("Tenant").
WITNESSETH, THAT FOR AND IN CONSIDERATION of the rents, and of the mutual
covenants and agreements of the parties hereto, as are hereinafter set
forth, Landlord and Tenant do hereby agree as follows.
SECTION 1. CERTAIN DEFINED WORDS AND PHRASES. As used in this Lease, the
following words or phrases shall have the following meanings.
1.1. "CENTER" That certain office/industrial development commonly known
as White Xxxxx Business Center and located on Lot ZC as shown on a plat
entitled "Resubdivision of Xxx 0, Xxxxx Xxxxx Xxxxxxxx Xxxxxxxxx," which plat
is recorded among the Land Records of Baltimore County, Maryland, in Plat
Book EMK3r. Xx. 00, Xxxxx 000.
1.2. "PREMISES". That portion of the Center leased by Tenant from
Landlord and shown cross-hatched on Exhibit A, containing the agreed upon
equivalent of 5,837 square feet.
1.3. "TERM". A period of four (4) years, and four (4) months, plus the
fractional part of a month commencing on the agreed upon date of FEBRUARY 25,
1989 or if no date is herein set forth, then on the date established pursuant
to Section 3 hereof.
1.4 "LEASE YEAR". A period of twelve (12) consecutive full calendar
months, provided that the fifth Lease Year shall consist of a period equal to
the sixteen (16) consecutive full calendar months then remaining in the Term.
The first Lease Year shall begin on the date of commencement of the term
hereof if the date of commencement of the term hereof shall occur on the
first day of the calendar month; if not, then the first Lease Year shall
commence on the first day of the calendar month next following the date of
commencement of the term hereof. Each succeeding Lease Year shall commence
upon the anniversary date of the first Lease Year.
1.5. "PERMITTED USE". The use of the Premises as sales, administrative,
customer service and general office space.
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1.6. "BASIC RENT". For the first, second and third Lease Years Basic Rent
shall be the annual sum of $44,069.35, payable in equal consecutive monthly
installments of $3,672.45 each, subject to adjustment as set forth in
Subsection 4.1. For the fourth Lease Year the Basic Rent shall be the annual
sum of $49,357.56, payable in consecutive monthly installments of $4,113.13
each.
1.7. "BUILDING". The building situate within the Center and known as 0000
Xxxxxxxx Xxxxxxxxx, containing the agreed upon rentable area of 44,645 square
feet (the "Rentable Area").
1.8. "TENANT'S PROPORTIONATE SHARE". Thirteen and One hundredth percent
(13.01%).
1.9. "DEPOSIT". The sum of $7,344,90, of which amount $3,672.45 shall
constitute payment by Tenant of the Basic Rent due hereunder for the fifth
full month of the Term and the balance thereof in the amount of $3,672.45
shall be applied as provided in Section 5.2. The security deposit is due at
signing of the Lease and the sixth month rent is due at occupancy.
1.10. "TENANT NOTICE ADDRESS". The term means:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0
Xxxxxxxxx, Xxxxxxxx 00000
SECTION 2. LEASE OF PREMISES. Landlord hereby leases to the Tenant and
Tenant rents from the Landlord the Premises, located in the Building within
the Center.
SECTION 3. TERM. The term of this Lease shall commence upon the date
specified in Subsection 1.3, but if no date is specified, then upon the
earlier to occur of (i) the date on which the Tenant opens or uses the
Premises, or (ii) that date which is fifteen (15) days after Landlord gives
written notice to Tenant of substantial completion; and terminating (unless
sooner terminated pursuant to the provisions of this Lease) on the last day
of the last calendar month of the Term. Promptly upon the commencement of the
Term, the parties shall enter into a supplementary agreement or certificate,
setting forth the dates of such commencement and termination. "Substantial
completion" means that the improvements to the Premises to be performed by
Landlord as required by Section 4.1 have been substantially completed except
for so-called punch list items, and that they are ready for Tenant to
commence the installation of its trade fixtures, equipment and inventory, and
so certified to by the Landlord or his representative.
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SECTION 4. CONSTRUCTION OF PREMISES
4.1. COMPLETION OF BUILDING. Landlord will construct on the Center the
Building in which the Premises are to be located, or cause it to be
constructed, as promptly as possible, subject to conditions constituting
force majeure, or other causes beyond Landlord's reasonable control. In
addition, Landlord shall, at its cost and expense, construct the Premises for
Tenant's use and occupancy in accordance with plans and specifications
prepared by Landlord or Landlord's architect, in the following manner. Within
ten (10) days from the date of the execution of this Agreement. Tenant shall
provide Landlord with Final Plans and Specifications (the "Final Plans and
Specifications") prepared by a professional designer, interior designer, or
architect, approved by Landlord in advance, for the layout of the Leased
Premises, including the dimensioned location of all partitions, interior
doors, lighting fixtures, lightpole switches, electrical outlets, telephone
receptacles or systems, together with the specifications therefor and any
other improvements Tenant desires to be made thereto prior to the
commencement of the term of this Lease. If Tenant fails to submit the Final
Plans and Specifications within ten (10) days after the execution of this
Lease then Tenant shall be assessed a penalty equivalent to the one-thirtieth
of the monthly installment of Basic Rent as set forth under Subsection 1.6 of
this Lease for each day late. Upon completion, the Final Plans and
Specifications shall be submitted to Landlord for its review and approval.
The Final Plans and Specifications shall be substantially in the form of the
Preliminary Plans and Specifications (the "Preliminary Plans and
Specifications") attached hereto on Exhibit "B". The parties acknowledge and
agree that the Basic Rent set forth in Subsection 1.6 incorporates the
parties' best estimate, based upon the Preliminary Plans and Specifications
and, as of the date of this Lease, of the cost of completion of Leasehold
Improvements, and that such estimate may differ from the actual cost
calculated with reference to the Final Plans and Specifications. Accordingly,
Landlord shall have the right to adjust the Basic Rent to reflect of the
cost to complete the modified improvements based upon the Final Plans and
Specifications.
Landlord shall notify Tenant of such adjustment, if any, at the time
Landlord notifies Tenant of Landlord's approval of the Final Plans and
Specifications. Tenant shall have five (5) days (not counting any intervening
Saturday or Sunday) to approve or disapprove Landlord's adjustment to Basic
Rent, if any, and shall be deemed to have accepted and approved the
adjustment to Basic Rent, if any, unless Tenant shall have notified Landlord
to the contrary, in writing, in accordance with Section 25 of this Lease,
within such five (5) day period. If Tenant fails to accept the Landlord's
adjustment to Basic Rent within such five (5) day period, then Landlord
shall, at its sole option and discretion, have the right to declare this
Agreement null and void and of no further force and effect. If, however,
Tenant accepts the adjustment to Basic Rent, if any, whether by express
letter of acceptance given within such five (5) day
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period or by failure to reject the same within such five (5) day period, then
Tenant agrees to execute and acknowledge such instruments confirming such
acceptance as Landlord may from time to time require. Upon Tenant's
acceptance of the adjustment to Basic Rent, if any, in the manner herein
described, Landlord shall construct or cause to be constructed all of the
Leasehold Improvements required by the Final Plans and Specifications. Upon
taking possession and occupying the Leased Premises, Tenant shall thereby be
deemed to have accepted the same and to have acknowledged that the Leased
Premises are in the condition called for hereunder and under the Final Plans
and Specifications. Under no circumstances shall Landlord be liable to Tenant
for damages for any delay in commencing or completing construction of the
Premises or for a total failure to complete or deliver the same.
4.2. RIGHT OF CANCELLATION. Anything herein to the contrary
notwithstanding, if for any reason the Term of this Lease shall not have
commenced within one (1) year from the date of this Lease then either party
shall have the right and option to terminate this Lease by written notice to
the other, whereupon, effective with the giving of such notice, this Lease
shall be cancelled and neither party shall have any liability arising
hereunder, except that Landlord shall return any sum deposited by Tenant
pursuant to Subsection 1.9 hereof, plus any interest accrued if monies were
held in an interest bearing checking account.
4.3. ACCEPTANCE OF PREMISES. By opening for business, Tenant shall be
deemed to have accepted the Premises, to have acknowledged that they are in
the condition called for hereunder and to have agreed that the obligations of
Landlord imposed for the delivery of the Premises have been fully performed.
Landlord agrees to assign for the benefit of Tenant such warranties as may be
available from Landlord's contractors with respect to Landlord's work in the
construction of the Premises.
SECTION 5. RENT. Tenant covenants and agrees to pay to Landlord during
the Term, as Rent for the Premises, the following.
5.1 BASIC RENT. The Basic Rent shall be payable in equal monthly
installments in advance on the first day of each full calendar month during
the Term, without any deduction or setoff whatsoever, and without demand. The
first monthly payment shall include any prorated Basic Rent for the period
from the date of the commencement of the Term to the first day of the first
full calendar month.
5.2 DEPOSIT. Landlord hereby acknowledges receipt from Tenant of the
Deposit. In no instance shall the amount of such Deposit be considered a
measure of liquidated damages. All or any part of the Deposit may be applied
by Landlord in total or partial satisfaction of any default by Tenant. The
application of all or any part of the Deposit to any obligation or default of
Tenant under this Lease shall not deprive
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Landlord of any other rights or remedies Landlord may have nor shall such
application by Landlord constitute a waiver by Landlord. If all or any part
of the Deposit is applied to an obligation of Tenant under this Agreement
then Landlord shall have the right to call upon Tenant to restore the Deposit
to its original amount by giving notice to Tenant and Tenant shall
immediately restore the Deposit by payment thereof to Landlord. The Deposit
shall be held by Landlord without liability for interest; Landlord shall be
entitled to the full use of the Deposit and shall not be required to keep it
in a segregated account or escrow. It is understood and agreed that should
Landlord convey its interest under this Lease, the Deposit may be turned over
by Landlord to Landlord's grantee or transferee, and upon any such delivery
of the Deposit, Tenant hereby releases Landlord herein named of any and all
liability with respect to the Deposit, its application and return, and Tenant
agrees to look solely to such grantee or transferee, and it is further
understood that this provision shall also apply to subsequent grantees and
transferees. Landlord will return the balance of the Deposit not previously
applied as provided herein, within thirty (30) days after expiration of the
Term, plus any interest accrued if monies were held in an interest bearing
account.
5.3. REAL ESTATE TAXES. Landlord shall pay all Taxes levied upon or
assessed against the land and improvements comprising the Center and the
appurtenances thereto during the Term of this Lease. If the Taxes payable by
Landlord are increased in any Tax Year during the Term of this Lease over the
amount of such Taxes due and payable with respect to the Center for the Tax
Tear in effect as of the Commencement of this Lease, then Tenant shall pay to
Landlord, as Additional Rent, its Proportionate Share of such Tax increase.
The term "Taxes" shall be defined as (i) all real estate and other ad
valorem taxes, including, without limitation, real estate rental, receipt or
gross receipt tax or any other tax on Landlord (excluding Landlord's income
taxes), now or hereafter imposed by any federal, state or local taxing
authority and whether as a substitution for or in addition to the present
method of real property taxation currently in use; (ii) costs of attorney's
and appraiser's fees, if necessary, incurred in connection with any
negotiation, contest or appeal pursued by Landlord in an effort to reduce
taxes, and (iii) any metropolitan district water and sewer charges and other
governmental charges which customarily are part of the real estate tax xxxx
issued by governmental authorities charged with said responsibility.
Taxes shall be adjusted on a proportionate basis for any period which
shall be less than a Tax Year. The Tax Year shall be the year so established
by the governmental authority charged with that responsibility. Landlord
agrees to provide Tenant with a copy of the Tax xxxx and the calculation of
Tenant's share thereof within a reasonable time. Tenant agrees to pay its
Proportionate Share of any increase in Taxes above the amount of Taxes due
and payable during the Tax Year in effect as of the commencement of the Term.
Tenant shall pay such Proportionate Share of Taxes within thirty (30) days
after written request therefor by Landlord, and further agrees, in lieu
thereof, at the prior request and
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election of Landlord, to pay the same in equal monthly installments in such
amounts as are estimated and billed for each Tax Year by Landlord at the
commencement of the Term and at the beginning of each successive Tax Year,
with appropriate adjustment being made at the end of each Tax Year.
5.4. COMMON AREA EXPENSE. During each Lease Year of this Lease, and during
any Lease Year of any renewal term hereof, Tenant will pay to Landlord its
Proportionate Share of Common Area Expense, at the time and in the manner
provided in the last sentence of Section 5.3 hereof. "Common Area Expense"
means the total cost and expense, including reasonable administrative charges
and overhead, incurred by Landlord in the operation, maintenance and repair
of common areas of the Center and all areas, space, equipment, facilities and
improvements thereon and services therein, including, but not by way of
limitation, the operation of the areas and services described in Sections 7
and 10 hereof.
5.5. ADDITIONAL RENT. Tenant's liability for its Proportionate Share of
the expenses described in Subsections 5.3 and 5.4 hereof, together with any
other charges due and payable from Tenant as set forth in the Lease, shall be
deemed Additional Rent.
5.6. ADJUSTMENT OF PROPORTIONATE SHARE. If Landlord, in Landlord's sole
discretion, elects to construct one or more additional buildings ("Additional
Building") within the Center, Landlord shall have the right, by written
notice to Tenant, to adjust Tenant's Proportionate Share. The adjustment
shall be made by adding to the Rentable Area of the Building the rentable
area of any Additional Building upon substantial completion thereof, and by
dividing the total by the Rentable Area of the Premises. Appropriate
proration shall be made for any partial period of a Lease Year resulting from
such adjustment.
5.7. LATE CHARGE FOR FAILURE TO PAY RENT AND ADDITIONAL RENT. If Tenant
fails to pay any Basic Rent or any Additional Rent within ten (10) days of
the time it is due and payable then Landlord, in addition to all other rights
and remedies contained in this Lease, may assess a one-time late charge
against Tenant at a rate of five percent (5%) of the delinquent rental
payment and such unpaid amounts shall bear interest from the due date thereof
to the date of payment at a rate of twelve percent (12%) per annum. Tenant
shall further be responsible for the payment of any reasonable legal expense
and management fees incurred by Landlord in collecting any delinquent Rent
due hereunder.
5.8. ALL CHARGES CONSTITUTE RENT. Notwithstanding anything in this Lease
to the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as Basic Rent or
Additional Rent, and including any and all advances, charges, costs or fees
incurred by Landlord in collecting any sums due from Tenant hereunder, or
otherwise in preserving the rights of
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Landlord hereunder or in enforcing the rights and obligations of Landlord and
Tenant hereunder, (and specifically including legal expenses and management
fees incurred by Landlord hereunder) shall constitute and shall be referred
to as "Rent" for the purposes of this Lease as well as Section 502(b)(6) of
the Bankruptcy Code, 11 U.S.C. section 502(b)(6).
SECTION 6. PERMITTED USE AND CONTINUED OCCUPANCY. The Premises shall be
used and occupied for the Permitted Use and for no other use or purpose.
Furthermore, the premises shall not be used in any way which may violate any
certificate of occupancy or other governmental requirements or restrictions
of record.
SECTION 7. COMMON AREAS. During the Term of this Lease Tenant shall be
entitled to the non-exclusive use, free of charge, but in common with others,
of the driveways, footways, and parking areas presently existing, provided
that such use shall be subject to such reasonable rules and regulations as
Landlord may from time to time prescribe; and provided further, that Landlord
shall at all times have full and exclusive control, management and direction
of the driveways, footways, and parking areas. Landlord shall further have
the right to police them, to restrict parking by Tenants, their officers,
agents, employees, contractors and invitees; to close temporarily all or any
portion of the parking areas of facilities as may be required for proper
maintenance and/or repair; to discourage non-customer parking; and to do and
perform such other acts in and to such areas as, in the use of its business
judgment, Landlord shall determine to be advisable in order to improve or
make more convenient the use thereof by tenants, their officers, agents,
employees and customers. Landlord may from time to time change the location,
layout and arrangement of the parking areas, driveways, and footways and
reduce them by erecting thereon buildings or other structures or improvements
of any kind including, but not limited to, extensions to the Center; provided
that the convenience of parking facilities available to Tenant shall not be
substantially prejudiced thereby; and provided further that there shall at
all times be provided such parking facilities as meet local governmental
requirements. Landlord shall provide reasonable illumination for the
driveways, footways and parking areas, and will keep them in reasonable
repair and reasonably free of litter and snow.
SECTION 8. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, mortgage
or encumber this Lease, in whole or in part, nor sublease all or any part of
the Premises, nor permit other persons to occupy the Premises or any part
thereof, nor grant any license or concession for all or any part of the
Premises, without the prior written consent of Landlord in each instance,
whose consent shall not be unreasonably withheld. Any consent by Landlord to
an assignment or subletting of this Lease shall not constitute a waiver of
the necessity of such consent as to any
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subsequent assignment or subletting and shall not relieve Tenant of liability
hereunder. An assignment for the benefit of Tenant's creditors or otherwise
by operation of law shall not be effective to transfer or assign Tenant's
interest under this Lease unless Landlord shall have first consented thereto
in writing. If any partnership interest or corporate shares of stock of
Tenant are transferred by sale, assignment, bequest, inheritance, operation
of law or otherwise, so as to result in a change of the voting control of
Tenant by those owning a majority of the partnership interest or corporate
shares of Tenant as of the date hereof, Tenant shall so notify Landlord of
said change. Landlord may terminate this Lease at any time after any such
change of control by giving Tenant ninety (90) days prior written notice
thereof, but such cancellation shall not relieve Tenant of liability
hereunder. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. section 101, ET SEQ. (the
"Bankruptcy Code"), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the Estate of Tenant within
the meaning of the Bankruptcy Code. All monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and
be promptly paid or delivered to Landlord.
SECTION 9. REPAIRS.
9.1. EXTERIOR REPAIRS. Landlord shall keep and maintain the roof and other
exterior portions of the Premises (exclusive of doors, windows, and glass) in
repair, provided that Tenant shall give Landlord written notice of the
necessity for such repairs, and provided that the damage thereto shall not
have been caused by Tenant, its agents, contractors, or employees, in which
event Tenant shall be responsible therefor and shall promptly repair it.
Except as expressly set forth in this Subsection 9.1, Landlord shall be under
no liability for repair or maintenance of the Premises, or any part thereof;
nor shall Landlord be under any liability to repair or maintain any
electrical, plumbing, heating, air conditioning or other mechanical
installations or equipment.
9.2. INTERIOR REPAIRS. Tenant shall keep the interior of the Premises,
together with all electrical, plumbing, heating, air conditioning and other
mechanical installations and equipment used by or in connection with the
Premises, in good order, replacement and repair, and promptly replace any
plate glass which may be broken or damaged with glass of like kind and
quality, and surrender the Premises at the expiration of the Term in as good
condition as when received except for ordinary wear and tear and damage by
fire or other casualty included in the extended coverage endorsement to
Landlord's fire insurance policies. Tenant will not overload the electrical
wiring and will not install any additional electrical
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wiring or plumbing unless it has first obtained Landlord's written consent
thereto, and, if such consent is given, Tenant will install them at its own
cost and expense. Tenant will repair promptly, at its own expense, any damage
to the Premises caused by bringing into the Premises any property for
Tenant's use, or by the installation, use or removal of such property,
regardless of fault or by whom such damage shall be caused unless caused by
Landlord, its agents, employees or contractors. In furtherance of Tenants
obligations, Tenant covenants and agrees to obtain a maintenance, repair and
service contract on the HVAC system, such contract to be on such terms and
with such company as shall be approved reasonably by Landlord and delivered
to Landlord within thirty (30) days after commencement of the Term. Landlord
shall transfer all warranties on electrical, plumbing, HVAC and other
mechanical equipment.
9.3. LANDLORD'S RIGHT TO REPAIR. If Tenant does not proceed promptly and
diligently to make any repairs or perform any obligation imposed upon it by
the preceding subsections within forty-eight (48) hours after receiving
written notice from Landlord to make such repairs or perform such obligation,
then Landlord may, at its option, enter the Premises and do and perform the
things specified in the notice, without liability on the part of Landlord for
any loss or damage resulting from any such action by Landlord, and Tenant
agrees to pay promptly upon demand any cost or expense incurred by Landlord
in taking such action. Landlord agrees, after written notice from Tenant, to
make those repairs required of it under this Lease and to perform its
obligations hereunder as promptly as reasonably possible under the
circumstances.
SECTION 10. UTILITIES. Tenant shall reimburse Landlord upon demand for
Tenant's Proportionate Share of all utility charges for the Center not billed
directly to Tenant. Tenant shall pay the charges for all utility services
billed directly to Tenant promptly when due, including but without
limitation, heat, electricity and telephone. If Tenant defaults in the
payment of any such charges, Landlord may, at its option, pay them for
Tenant's account, in which case Tenant shall promptly reimburse Landlord
therefor. Landlord will provide and maintain the necessary mains and
electrical conduits to bring water and electricity to the Premises. Landlord
shall under no circumstances be liable to Tenant in damages or otherwise for
any interruption in service of electricity, water, heat, telephone or air
conditioning whether caused by the making of any repairs or improvements in
the Building or otherwise. The cost of installing any meters, where necessary
to measure Tenant's consumption of said utilities, shall be at Tenant's
expense.
SECTION 11. COMPLIANCE WITH RULES, ORDINANCES, ETC. Tenant shall,
throughout the Term, at Tenant's sole cost and expense, promptly comply with
all laws, ordinances, notices, orders, rules, regulations and requirements of
or made by any and all federal, state or municipal governments of the
appropriate departments, commissions, boards and officers thereof, as well as
any and all notices, orders, rules and
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regulations of the National Board of Fire Underwriters, or any other body now
or hereafter constituted and exercising similar functions, relating to all or
any part of the Premises; provided, however, that Tenant shall not be
required to take any affirmative action in order to comply with the
foregoing laws, ordinances and notices with respect to the exterior of any
portion of the Building other than the Premises unless the need for such
compliance arises out of Tenant's use, manner of use or occupancy of, or
installations within or upon, the Premises or such portion of the Building.
Tenant shall likewise observe and comply with the requirements imposed by any
and all policies of public liability, fire and other insurance at any time in
force with respect to the Premises or with respect to the Building, any other
improvements upon the Premises, and/or equipment therein. Tenant shall comply
with the National Fire Code which prohibits smoking in storage areas
containing combustible products and shall install, at its expense, "No
Smoking" signs in those areas of the Premises. Tenant shall also install fire
extinguishers throughout the Premises and shall inspect such extinguishers at
least once a year and refill and maintain such extinguishers as often as
necessary. Tenant shall also comply with Landlord's rules and regulations
attached hereto as Exhibit C.
SECTION 12. TENANT'S ALTERATIONS. Tenant shall not paint or decorate, or
make any alterations, additions or improvements to the Building or to the
Premises, or any part thereof, without Landlord's prior written consent in
each instance which consent shall not be unreasonably withheld. Tenant shall
present plans and specifications for such work to Landlord at the time
approval is sought. Before making any alterations, additions, installations,
or improvements Tenant shall, at its expense, obtain all permits, approvals
and certificates required by governmental authorities and, upon completion,
certificates of final approval thereof, and shall deliver duplicates of all
such permits, approvals and certificates to Landlord promptly thereafter.
Tenant agrees to carry and will cause Tenant's contractors and subcontractors
to carry such workmen's compensation, general liability, personal and
property damage insurance as Landlord may require. Any alterations, additions
or improvements made by Tenant constituting fixtures shall immediately become
the property of Landlord and shall remain upon the Premises. Alternately,
Landlord may elect to require Tenant to remove such alterations, additions
and improvements and restore the Premises to their original condition, in
which case Tenant shall comply with such requirement prior to the expiration
or other termination of this Lease. Tenant shall not cut or drill into or
secure any fixtures, apparatus or equipment of any kind in or to any part of
the Premises without first obtaining Landlord's written consent. Tenant shall
cause to be removed within ten (10) days after notice thereof any lien,
including any mechanic's lien asserted against work performed upon the
Premises. Tenant shall also defend on Landlord's behalf, at Tenant's sole
cost and expense, any action, suit or proceeding for the enforcement of any
such lien, and Tenant shall pay any damages and satisfy and discharge any
judgment entered thereon and save Landlord harmless from any loss, liability,
expense, including reasonable counsel fees, claims or damages resulting
therefrom.
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SECTION 13. INSURANCE.
13.1. LIABILITY INSURANCE, ETC. Tenant, at Tenant's sole cost and
expense, shall maintain and keep in effect throughout the Term, insurance
against loss or liability in connection with bodily injury or death or
property damage or destruction in or upon the Premises, or arising out of the
use of any portion of the Center by Tenant or its agents, employees,
officers, invitees, visitors and guests, under policies of general public
liability insurance having such limits as to each as may be reasonably
required by Landlord from time to time, but in any event of not less than One
Million Dollars ($1,000,000) for each person and One Million Dollars
($1,000,000) for each occurrence with respect to bodily injury or death, and
One Hundred Thousand Dollars ($100,000) for each occurrence with respect to
property damage or destruction. Such policies shall name Landlord, any other
parties in interest designated by Landlord from time to time, and Tenant as
the insured parties, shall provide that they shall not be cancellable without
at least thirty (30) days prior written notice to Landlord, and shall be
issued by insurers of recognized responsibility licensed to do business in
Maryland. At least five (5) days prior to the commencement of the Term, the
originals or a signed duplicate copy of such policies shall be delivered by
Tenant to Landlord and at least thirty (30) days before any such policy shall
expire Tenant shall deliver the original or a signed duplicate copy of a
replacement policy to Landlord.
13.2 FIRE AND EXTENDED COVERAGE. Landlord shall maintain throughout the
Term all risk or fire and extended coverage insurance on the Building and may
maintain all risk or fire and extended coverage insurance on the equipment,
fixtures and other improvements installed and/or owned by Landlord and used
in connection with the Building and/or the Center, and/or all alterations,
rebuildings, replacements and additions thereto, including but not limited to,
insurance insuring the same against loss or damage by, or abatement of rental
income resulting from fire, and other such hazards, casualties and
contingencies, liability and indemnity insurance (all of which are
hereinafter referred to collectively as "Insurance Costs"). Tenant shall pay
to Landlord, as Additional Rent hereunder, upon demand, the amount, if any, by
which Landlord's premium shall be increased by reason of Tenant's occupancy
of the Premises. If the dollar amount of premiums for Insurance Costs for any
Lease Year while this Lease is in effect is greater than the dollar premiums
for Insurance Costs for the year in which this Lease commences, Tenant shall
pay to Landlord, as Additional Rent hereunder, upon demand, its Proportionate
Share of such increase during the Lease Year in which such increase takes
place and during each Lease Year thereafter.
13.3 RELEASE. Each of the parties hereto hereby releases the other, to
the extent of the releasing party's actual recovery under its insurance
policies, from any and all liability for any loss or damage which may be
inflicted upon the property of such party, even if such loss or damage shall
have arisen out
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of the negligent or intentionally tortious act or omission of the other
party, its agents or employees; provided, however, that this release shall
be effective only with respect to loss or damage occurring during such time as
the appropriate policy of insurance shall contain a clause to the effect that
this release shall not affect the said policy or the right of the insured to
recover thereunder.
SECTION 14. CHANGES TO CENTER. Landlord shall have the exclusive right to
use all or any part of the roof and rear and side walls of the Premises for
any purpose; to erect additional or other structures over all or any part of
the Premises or the Center; to change or revise the layout of improvements
within the Center, or relocate or remove the same; to partition the same; and
to erect and maintain in connection with the construction thereof temporary
scaffolds and other aids to construction on the exterior of the Premises,
provided that access to the interior of the Premises shall not be denied,
that there shall be no encroachment upon the interior of the Premises, and
that the use and enjoyment of the Premises by Tenant and its customers shall
not be unreasonably denied.
SECTION 15. FIRE OR OTHER CASUALTY.
15.1. REPAIR OR DAMAGE. If the Premises are damaged by fire, the
elements, unavoidable accident or other casualty, Landlord shall promptly at
its expense repair the damage and if the Premises are not thereby rendered
untenantable in whole or in part, rent shall not xxxxx. If the Premises are
rendered untenantable only in part, rent shall xxxxx during such period
proportionately as to the portion of the Premises rendered untenantable. If
the entire Premises are untenantable, rent shall xxxxx entirely during the
period of untenantability.
15.2. NO LIABILITY FOR INTERRUPTION TO BUSINESS. In no event shall
Landlord be liable for interruption to Tenant's business or for damage to or
replacement or repair of Tenant's personal property, including inventory,
trade fixtures, floor coverings, furniture, property removable by Tenant
under the provisions of this Lease or leasehold improvements.
15.3. LANDLORD'S ELECTION TO TERMINATE LEASE. If the Premises are (i)
rendered wholly untenantable, or (ii) damaged as a result of any cause which
is not covered under standard fire and extended coverage insurance, or (iii)
substantially damaged during the last two years of the Term, or if the
Building of which the Premises are a part (but not the Premises), is damaged
to the extent that, in Landlord's judgment, reasonably exercised, it is
necessary to demolish the Building and the Premises, then in that case,
Landlord may terminate this Lease by giving to Tenant notice within ninety
(90) days after the
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occurrence of such event. Basic Rent and Additional Rent and other charges
shall be adjusted as of the date of such cancellation.
SECTION 16. SIGNS. Tenant shall not erect or maintain any exterior sign
or any signs within the Premises visible from the outside anywhere upon the
Center or Premises without first obtaining Landlord's written approval as to
the size, design, location, type of composition or material thereof. Design
shall be in accordance with the guidelines established by Landlord from time
to time. Any such sign shall be inscribed, painted or affixed by Landlord, or
a company approved by Landlord, but the entire cost thereof shall be borne by
Tenant. Tenant shall maintain any such sign or signs in good condition and
repair at all times, and pay any taxes imposed thereon.
SECTION 17. EMINENT DOMAIN. If the whole or any part of the Premises is
taken under the power of eminent domain then this Lease shall terminate as to
the part so taken on the date Tenant is required to yield possession thereof
to the condemning authority. Landlord shall make necessary repairs and
alterations to restore the part not taken to useful condition and the Basic
Rent shall be reduced proportionately as to the portion of the Premises so
taken. If the amount of the Premises so taken substantially impairs the
usefulness of the Premises for the purposes set forth in Section 6, then
either party may terminate this Lease as of the date when Tenant is required
to yield possession. All compensation awarded for any taking of the fee and
the leasehold shall belong to and be the property of Landlord; provided,
however, that Tenant, and not Landlord, shall be entitled to any portion of
the award which does not serve to reduce Landlord's award and is made
directly to Tenant in reimbursement for Tenant's cost of removal of its
stock, trade fixtures, moving and relocation costs.
SECTION 18. TRADE FIXTURES. All trade fixtures installed by Tenant in the
Premises, other than improvements made by Tenant to the Premises, shall
remain the property of Tenant and shall be removable from time to time and
also at the expiration of the Term of this Lease or other termination
thereof, provided Tenant shall not at such time be in default under any
covenant or agreement contained in this Lease; otherwise such fixtures shall
not be removable, and Landlord shall have a lien thereon to secure itself
against loss and damage resulting from such default. Tenant further agrees to
restore the Premises to their original condition, fair wear and tear excepted.
SECTION 19. RIGHT OF ENTRY. Landlord and its representatives shall have
the right at all reasonable times to enter the Premises for the purposes of
(a) inspecting them, (b) repairing them or otherwise performing any work
therein as herein provided; and (c) exhibiting them for sale, lease or
financing; and Landlord shall not be liable in any manner for any entry into
the Premises for such purposes.
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SECTION 20. SURRENDER. Promptly upon the expiration or earlier
termination of the Term, Tenant shall yield up the Premises and any and all
improvements, alterations and additions thereto, and all fixtures and
equipment servicing the Premises, clean and neat, and in the same condition,
order and repair in which they are required to be kept throughout the term of
this Lease. Tenant shall remove its signs, goods and effects and machinery,
fixtures and equipment used in the conduct of its trade or business and not
servicing the Building, and shall repair any damage caused by the
installation or the removal thereof. Unless sooner terminated pursuant to the
provisions hereof, this Lease shall expire absolutely upon the expiration of
the Term without the necessity of any notice or other action from or by
either party hereto. Tenant further agrees that during the six (6) month
period preceding the expiration date of the Term, Landlord may place upon the
Premises a FOR RENT sign.
SECTION 21. CURING THE TENANT'S DEFAULTS. If Tenant defaults in the
performance of any of its obligations under this Lease then, in addition to
any other rights it may have in law or equity, and after written notice to
Tenant except in the case of emergency, Landlord shall be entitled (but shall
not be obligated) to cure such default, and Tenant shall reimburse Landlord
for any sums paid or costs incurred by Landlord, including reasonable
attorney's fees, in curing such default, plus interest thereon at the lesser
of the highest rate permitted by law or fifteen percent (15%) per annum,
which sums, costs and interest shall be deemed to be Additional Rent
hereunder and shall be payable by Tenant upon demand by Landlord.
SECTION 22. RESPONSIBILITY OF TENANT. Tenant shall be responsible for,
and shall relieve and hereby relieves Landlord from and agrees to indemnify
Landlord against, any and all liability by reason of any injury or damage to
Tenant or to any other person or property upon the Premises (or in the said
common areas in connection with Tenant's use and enjoyment thereof), caused
by any fire, breakage, leakage, collapse or other event upon the Premises or
any other portion of the Center, whether or not such event results from a
condition which existed prior to the execution of this Lease and whether or
not such event results in the termination of this Lease by reason of damage
to or destruction of the Center or the Premises, unless such fire, breakage,
leakage, collapse or other event, injury or damage was caused by or results
from the negligent or intentionally tortious act or omission of Landlord or
its agents, officers, invitees, visitors or guests.
SECTION 23. SUBORDINATION AND ATTORNMENT. This Lease shall be subject and
subordinate at all times to the lien of any underlying ground leases,
mortgages or deeds of trust now or hereafter placed by Landlord upon the
Center, and to any and all advances to be made thereunder, and to all
renewals, replacements and extensions thereof. This subordination shall be
self-operative, and no further
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agreement or act on the part of Tenant shall be required to effectuate such
subordination. In confirmation thereof, Tenant shall execute such further
assurances as may be requested. Any mortgagee or trustee under any deed
of trust may elect that this Lease shall have priority over its mortgage or
deed of trust, and upon notification of such election by such mortgages or
trustee to Tenant, this Lease shall be deemed to have priority over such
mortgage or deed of trust whether this Lease is dated prior to or subsequent
to the date of such mortgage or deed of trust. If any proceedings are brought
for the foreclosure of any portion of the Center of which the Premises are a
part, or if the power of sale under a mortgage or deed of trust is exercised,
then Tenant, upon request, shall attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease. Tenant hereby appoints Landlord to be the attorney-in-fact of Tenant
(which appointment is irrevocable and coupled with an interest) to execute
and deliver any such instrument or instruments for and on behalf of and in
the name of Tenant.
SECTION 24. DEFAULTS BY THE TENANT.
24.1. DEFAULT. If any one or more of the following events shall occur:
(a) Tenant shall fail to make any payment hereunder when due, whether for
Rent or otherwise; or (b) any financial report or statement, certificate,
statement, representation or warranty at any time furnished or made by or on
behalf of Tenant or any guarantor of any of Tenant's obligations hereunder,
including, without limitation, any representation or warranty made by Tenant
herein, proves to have been false or misleading in any material respect at
the time as of which the facts therein set forth were stated or certified, or
any such financial report or statement has omitted any material contingent or
unliquidated liability or claim against Tenant or any such guarantor; or (c)
Tenant or any guarantor of any of Tenant's obligations hereunder shall fail
to perform or observe any covenant, condition or agreement to be performed or
observed by it hereunder or under any guaranty agreement; or (d) Tenant or
any guarantor of Tenant's obligations hereunder shall be in breach of or in
default in the payment and performance of any obligation owing to Landlord,
whether or not related to this Lease and howsoever arising, whether by
operation or law or otherwise, present or future, contracted for or acquired,
and whether joint, several, absolute, contingent, secured, unsecured, matured
or unmatured; or (e) Tenant or any guarantor of any of Tenant's obligations
hereunder shall cease doing business as a going concern, make an assignment
for the benefit of creditors, generally not pay its debts as they become due
or admit in writing its inability to pay its debts as they become due, file a
petition commencing a voluntary case under any chapter of the Bankruptcy
Code, 11 U.S.C. Section 101, ET SEQ. (the "Bankruptcy Code"), be adjudicated
an insolvent, file a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law, rule or regulation, or
file an answer
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admitting the material allegations of a petition filed against it in any such
proceeding, consent to the filing of such a petition or acquiesce in the
appointment of a trustee, receiver, custodian or other similar official for
it or of all or any substantial part of its assets or properties, or take any
action looking to its dissolution or liquidation; or (f) an order for relief
against Tenant or any guarantor of any of Tenant's obligations hereunder
shall have been entered under any chapter of the Bankruptcy Code, or a decree
or order, by a court having jurisdiction in the premises shall have been
entered approving as properly filed a petition seeking reorganization,
arrangement, readjustment, liquidation, dissolution or similar relief against
Tenant or any guarantor of any of Tenant's obligations hereunder under any
present or future statute, law, rule or regulation, or within thirty (30)
days after the appointment without Tenant's or such grantor's consent or
acquiescence of any trustee, receiver, custodian or other similar official
for it or such grantor or of all or any substantial part of its or such
guarantor's assets and properties, such appointment shall not be vacated;
then Landlord may re-enter and repossess the Premises, together with any and
all improvements thereon and additions thereto, and/or pursue any remedy
permitted by law or equity for the enforcement of the provisions hereof. In
the alternative, and at Landlord's election, Landlord may give to Tenant at
any time after the occurrence of such default written notice of Landlord's
election to terminate this Lease on a date to be specified in the notice, not
less than ten (10) days after the giving thereof; and upon the date specified
in the notice, this Lease and the Term shall (except for the continued
liability of Tenant as hereinafter provided) expire and come to an end as
fully and completely as if the date specified in the notice were the date
definitely fixed in this Lease for the expiration of the Term, and Tenant
shall quit and surrender the Premises, on or before the stated date, to the
Landlord, without cost or charge to Landlord.
24.2. LANDLORD'S ADDITIONAL REMEDIES FOR DEFAULT. If this Lease or the
Tenant's possession of the Premises should be terminated as herein provided
or by reentry, summary dispossession proceedings or any other method then
Landlord may, at Landlord's option, as an additional or alternative remedy
(a) relet the Premises or any part or parts thereof for the account of Tenant
for the remainder of the Term, as herein originally specified, or (b) relet
the Premises or any part or parts thereof for a period extending beyond the
date when this Lease would have expired but for such prior expiration on
default or for such reentry and termination, and deem that portion of the
period within the Term, as herein originally specified, as a rental for the
account of Tenant (which such reletting may provide for reasonable
concessions in rent or a reasonable free rent period, but without thereby in
any way affecting Tenant's liability hereunder for the Rent payable under
this Lease for the period of such concession or free rent) and, in any of
such events, Landlord may receive the rent therefor, applying the same first
to the payment of such expenses of every kind and nature as the Landlord may
have incurred or assumed in recovering the possession of the Premises and in
connection with the reletting of the Premises, and then (to the extent of the
remainder of so much
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of the said rental as shall have been received with respect to the Term, as
herein originally specified) to the fulfillment of the covenants and
agreements of Tenant hereunder including the payment of the Rent herein
reserved, and Tenant shall remain liable as herein provided, but there shall
be no obligation on the part of Landlord to relet nor any liability on its
part for failure to relet, and Tenant's liability shall not be diminished or
affected by such failure to relet, or the giving of such rental or other
concessions in the event of any reletting, as aforesaid.
24.3 TENANT'S LIABILITY FOR DEFAULT. If this Lease is terminated as
herein provided, or if Tenant's possession is terminated by reentry, summary
dispossession proceedings or any other method, whether or not the Premises is
relet, then Tenant shall, until the time when this Lease would have expired
but for such prior expiration or for such reentry, summary dispossession or
termination, continue or remain liable for the Rent herein reserved less the
avails of any such reletting (after the deduction therefrom of all expenses
incurred by Landlord in recovering such possession and in reletting
including, but not by way of limitation, broker's fees, reasonable counsel
fees and costs of renovation), if any, and the same shall be due and payable
by Tenant to Landlord at the time specified for the payment thereof, so that
upon each of such days Tenant shall pay to Landlord the amount of the
deficiency then existing. Upon such expiration, termination or reentry as
aforesaid, neither Tenant nor Tenant's creditors and representatives shall
thereafter have any right, legal or equitable, in or to the Center, the
Premises or any portion thereof, or in or to the repossession of same, or in,
to or under this Lease, and Tenant hereby waives any and all right or
redemption which may then be provided by law. The words "reenter" and
"reentry" as used in this Lease shall not be deemed to be restricted to their
technical legal meaning.
24.4 ALL SUMS DEEMED RENT. Any and all mention in this Section 24 of the
"Rent" herein reserved after the termination of this Lease as in this Section
24 provided, or after the termination of Tenant's possession by reentry,
summary dispossession or other method as herein provided, shall be deemed to
refer to the Basic Rent plus all Additional Rent and such additional sums as
the Tenant shall be obligated to pay to Landlord under any of the terms,
covenants and conditions of this Lease, whether or not designated or
indicated herein to be payable as Basic Rent or Additional Rent, and all such
sums shall constitute Rent for the purposes of Section 502(b)(6) of the
Bankruptcy Code, 11 U.S.C. Section 502(b)(6).
24.5 DISTRAINT FOR RENT. In addition to, and not in substitution for the
remedies provided in this Section 24, if Tenant fails to pay any rent when
due, beyond any applicable grace period, Landlord shall have the right to
distrain therefor.
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24.6 NO IMPLIED WAIVER OF LANDLORD'S RIGHT. The failure of Landlord to
insist in any one or more instances upon the performance of any of the
covenant or conditions of this Lease, or to exercise any right or privilege
herein conferred shall not be construed as thereafter waiving or relinquishing
Landlord's right to the performance of any such covenants, conditions, rights
or privileges, and the same shall continue and remain in full force and
effect, and the waiver of one default or right shall not constitute waiver of
any other default, and the receipt of any rent by Landlord from Tenant or any
assignee or subtenant of Tenant, whether the same be Rent that originally was
reserved or that which may become payable under any covenants herein
contained, or of any portion thereof, shall not operate as a waiver of
Landlord's right to enforce the payment of the Additional Rent or of any of
the other obligations of this Lease by such remedies as may be appropriate,
and shall not waive or avoid Landlord's right at any time thereafter to elect
to terminate this Lease, on account of such assignment, sub-letting,
transferring of this Lease or any other breach of any covenant or condition
herein contained, unless evidenced by Landlord's written waiver thereof. The
acceptance of Rent or any other consideration by Landlord at any time shall
not be deemed an accord and satisfaction, and Landlord shall have absolute
discretion to apply same against any sum for any period or reason due
hereunder without the same constituting a release of any other sums remaining
due and unpaid.
24.7 LANDLORD'S COSTS AND EXPENSES. If suit is brought for the recovery
of possession of the Premises, for the recovery of Rent or any other amount
due under the provisions of this Lease, for the preservation or enforcement
of any other rights or remedies accruing to Landlord under this Lease or
because of the breach of any covenant herein contained on the part of the
Tenant to be kept or performed, then Tenant shall pay all of Landlord's
expenses, including reasonable attorneys' fees, and such fees and expenses
shall be deemed Additional Rent.
24.8 TENANT'S WAIVER. Tenant shall and hereby does waive trial by jury in
any action, proceeding or counterclaim brought by Landlord on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Leased
Premises and/or any claim of injury or damage. If Landlord commences any
proceedings for the non-payment of Rent or Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding. This
shall not, however, be construed as a waiver of Tenant's right to assert such
claims in any separate action or actions brought by Tenant.
25. GRACE PERIOD. Anything contained in any of the foregoing provisions
of this Lease to the contrary notwithstanding, neither party hereto will
exercise any right or remedy provided for in this Lease or allowed by law
because of any default of the other, unless such party shall first have given
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notice thereof to the other, and the other, within a period of five (5) days
thereafter, shall have failed to pay the sum or sums due if the default shall
consist of the failure to pay money, or, if the default shall consist of
something other than the payment of money, shall have failed promptly
thereafter to begin to cure such default, and shall have failed to cure such
default within a reasonable period of time in any event not to exceed thirty
(30) days from the date of such notice; provided, that no such notice from
Landlord shall be required, nor shall the Landlord be required to allow any
part of the said notice period, (a) more than two (2) times during any twelve
(12) month period, or (b) if the Tenant shall have removed from or shall be
in the course of removing from the Premises, or (c) if a petition in
bankruptcy or for reorganization shall have been filed by or against the
Tenant, resulting in the entry of an Order For Relief under the Bankruptcy
Code, 11 U.S.C. Section 101, ET SEQ., or (d) if a receiver or trustee shall
have been appointed for Tenant and such appointment and such receivership or
trusteeship shall not be terminated within thirty (30) days thereafter; or
(e) if the Tenant shall have made an assignment for the benefit of creditors,
or (f) if Tenant shall have been levied upon and is about to be sold out upon
the Premises by any sheriff, xxxxxxxx or constable.
SECTION 26. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be sent by registered or certified
mail, return receipt requested, postage prepaid and shall be deemed given on
the day on which same were posted. Notices to Tenant shall be addressed to
Tenant's Notice Address. Notices to Landlord shall be addressed c/o
Nottingham Properties, Inc., 000 Xxxx Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000, with a carbon copy to any other persons designated by Landlord. Either
party may, at any time, in the manner set forth for giving notices to the
other, set forth a different address to which notices to it shall be sent.
SECTION 27. TENANT'S CERTIFICATE. Tenant agrees at any time and from time
to time within ten (10) days after Landlord's written request, to execute,
acknowledge and deliver to Landlord a written instrument in recordable form
certifying or stating: (a) that this Lease is unmodified and in full force
and effect (or if there shall then have been modifications, that the same is
in full force and effect as so modified, and setting forth such
modifications); (b) that the Premises have been completed by Landlord in
accordance with Section 4 hereof, (or if not so completed, stating the
respects in which not completed); (c) that Tenant has accepted possession of
the Premises, the date upon which the Term has commenced and the date of the
expiration of the Term of this Lease; (d) the dates to which Rent and other
charges have been paid in advance, if any; (e) whether or not to the best
knowledge of the signer of such certificate Landlord is then in default in
the performance of any covenant, agreement or condition contained in this
Lease and, if so, specifying in detail each such default of which the signer
may have knowledge; (f) as to any other matters as may be reasonably so
requested; and (g) that it is understood that such instrument
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may be relied upon by any prospective purchaser, mortgages, assignee or
lessee of Landlord's interest in this Lease, in the Center, or any portion or
part thereof.
SECTION 28. THE LANDLORD. As used herein, the term "Landlord" means the
Landlord named hereinabove as well as its heirs, personal representatives,
successors and assigns, and any other subsequent owner of the leasehold
estate or reversion in the Premises, as well as the heirs, personal
representatives, successors and assigns of any such subsequent owner, each of
whom shall have the same rights, remedies, powers, authorities and privileges
as he would have had had he originally signed this Lease as Landlord, but any
such person, whether or not named herein, shall have no liability hereunder
after he shall cease to hold the title to or a leasehold interest in the said
real estate, except for obligations which may have theretofore accrued.
Neither Landlord nor any principal of Landlord, whether disclosed or
undisclosed, shall have any personal liability with respect to this Lease or
the Premises, and if Landlord shall breach or default with respect to its
obligations or otherwise under this Lease, Tenant shall look solely to the
Premises and to the rents, profits and issues to be received therefrom.
SECTION 29. THE TENANT. As used herein, the term "Tenant" means the
Tenant named in this Lease as well as its heirs, personal representatives,
successors and assigns, each of which shall be under the same obligations,
liabilities, and disabilities and have only such rights, privileges and
powers as it would have possessed had it originally signed this Lease as
Tenant. However, no such rights, privileges or powers shall inure to the
benefit of any assignee of Tenant, immediate or removed, unless the
assignment to such assignee shall have been consented to in writing by the
Landlord, as aforesaid. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101, ET
SEQ., shall be deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such
assignment. Any such Assignee shall upon demand execute and deliver unto
Landlord an instrument confirming such assumption.
SECTION 30. TENANT'S STATEMENT. Tenant shall furnish Landlord, when
requested, annually, a copy of its annual audited and certified financial
statement. It is mutually agreed that the Landlord may deliver a copy of such
statements to its mortgagee and that Landlord's employees may review such
statements, but otherwise, Landlord shall treat such statements and
information contained therein as confidential.
SECTION 31. RECORDING. Neither this Lease, nor any memorandum, affidavit,
or other writing with respect thereto, shall be recorded by Tenant or by
anyone acting through, under or on behalf of Tenant, and the recording
thereof in violation of this provision, shall make this Lease null and void
at
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Landlord's election. Notwithstanding the foregoing prohibition, either party
may request that the other party execute a memorandum or short form lease
for recording, containing the name of the parties, the legal description and
term of the Lease. The party so requesting such recordation shall pay all of
the costs (including any transfer taxes and Recordation taxes) payable in
connection with such recordation, except that Tenant covenants that if at
any time any mortgagee of Landlord's interest in the Premises, any trustee or
beneficiary under a deed of trust constituting a lien upon the Building of
which deed of trust Landlord is grantor, or a landlord of Landlord in respect
to the real property upon which the Building is situate, shall require the
recordation of this Lease, or if the recordation of this Lease shall be
required by any valid governmental order or if any governmental authority
having jurisdiction in the matter shall assess and be entitled to collect
transfer taxes or recordation taxes, or both such taxes on this Lease, then
Tenant shall execute such acknowledgements as may be necessary to effect such
recordations and pay, upon request of Landlord, all recording fees, transfer
taxes and/or recordation taxes payable on, and/or in connection with this
Lease and/or such recordation.
SECTION 32. APPLICABLE LAW. This Agreement shall be given effect, and
shall be construed by application of the law of Maryland.
SECTION 33. SEVERABILITY. If any term or provision of this Lease shall to
any extent be held invalid or unenforceable, the remaining terms and
provisions of this Lease shall not be affected hereby, but each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
SECTION 34. ACCEPTANCE OF THE PREMISES. By its entry into this Lease,
Tenant represents and acknowledges to Landlord that Tenant has satisfied
itself as to the use which it is permitted to make of the Premises and has
inspected the Premises, and the streets, sidewalks, curbs, utilities and
access ways contiguous to or adjoining the same, that the same are in all
ways acceptable to Tenant for use by Teant pursuant to this Lease, in the
condition or state in which they are now found (or will exist, upon
completion in accordance with such plans and specifications), and that
Landlord has made no express or implied warranty, representation or covenant
to or with Tenant with respect to the same, other than as may be set forth
expressly herein.
SECTION 35. BROKERAGE. Tenant warrants that it has had no dealings with
any broker or agent in connection with this Lease other than Fidelity
Management Company, whose commission Landlord covenants and agrees to pay in
the amount agreed between Landlord and such broker or brokers. Tenant
covenants to pay, hold harmless and indemnify Landlord from and against any
and all costs, expense or liability for any
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compensation, commissions or charges claimed by any broker other than those
stated above or any other agent with respect to this Lease or the negotiation
thereof.
SECTION 36. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto
set forth all the promises, agreements, conditions and understandings between
Landlord and Tenant with respect to the Premises, and there are no promises,
agreements, conditions or understandings, either oral or written, between
them other than are herein set forth. No subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant
unless reduced to writing and signed and delivered by each of them.
SECTION 37. HEADINGS. The headings of the sections and subsections hereof
are provided herein for convenience of reference only, and shall not be
considered in construing the contents of such sections or subsections.
SECTION 38. WASTE OR NUISANCE. Tenant shall not commit or suffer to be
committed any waste upon the Premises or any nuisance or other act or thing
which may disturb the quiet enjoyment of any other tenant in the Building, or
in the Center, or which may disturb the quiet enjoyment of any person outside
the Building or the Center in contravention of such person's legal rights.
SECTION 39. EXCUSE OF LANDLORD'S PERFORMANCE. Anything in this Agreement
to the contrary notwithstanding, provided such is not due to Landlord's
willful act or neglect, Landlord shall not be deemed in default with respect
to the performance of any of the terms, covenants and conditions of this
Lease if the same shall be due to any strike, lockout, civil commotion,
warlike operation, invasion, rebellion, hostilities, military or usurped
power, sabotage, governmental regulations or controls, inability to obtain
any material, service or financing, through act of God or other causes beyond
control of Landlord.
SECTION 40. JOINT AND SEVERAL LIABILITIES. 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 laws subject to personal liability, the
liability of each such member shall be joint and several.
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SECTION 41. APPROVAL OF LENDER. This Lease Agreement is contingent upon
the approval of any and all mortgagees and other lenders of Landlord.
Landlord shall have thirty (30) days from the execution of this Lease
Agreement to obtain all necessary approvals from its mortgagee and other
lenders; and, thereafter, shall have the right to extend said approval period
for an additional ten (10) days upon written notice to Tenant. If such
approvals cannot be obtained within the aforesaid period, Landlord shall have
the right, at its election, to terminate this Lease upon written notice to
Tenant and shall refund any deposit paid pursuant to Subsection 5.2, and
thereafter the rights and duties of the parties hereunder shall be null and
void and be of no further force and effect.
SECTION 42. RELOCATION. Landlord reserves the right at its option and at
Landlord's sole cost and expense (including all moving expenses of Tenant) to
relocate the Premises hereby leased to another area within the Building in
which the Premises hereby leased is located or within any other building
owned or controlled by Landlord and situate upon any of Lots 2C, 2D, 2E or 2F
as shown on a plat entitled "Resubdivision of Xxx 0, Xxxxx Xxxxx Xxxxxxxx
Xxxxxx," which plat is recorded among the Land Records of Baltimore County in
Plat Book EHKJr. No. 52, Folio 143, or any resubdivision thereof; provided
such new location shall be comparable to the Premises hereby leased and
provided Landlord gives Tenant thirty (30)* days prior written notice of such
relocation.
*of substantially equivalent space
SECTION 43. ZONING AND LICENSE APPROVALS. Anything herein elsewhere
contained to the contrary, this Lease and all the terms, covenants, and
conditions hereof are in all respects subject and subordinate to all zoning
restrictions affecting the Leased Premises, and the Building in which they are
located, and Tenant agrees to bound by such restrictions. Landlord further
does not warrant that any license or licenses, permit or permits, which may
be required for the business to be conducted by Tenant on the Leased Premises
will be granted, or, if granted, will be continued in effect or renewed, and
any failure to obtain such license or licenses, permit or permits, or any
revocation thereof or failure to renew the same, shall not release the Tenant
from its obligations under this Lease Agreement.
SECTION 44. CORPORATE APPROVAL. If Tenant is a corporation, Tenant
covenants and warrants that it has the requisite corporate approval to enter
into and execute this Lease Agreement and accordingly, shall provide to
Landlord, within ten (10) days of its execution of this Lease Agreement, a
copy attested by a duly authorized officer of such corporation of an executed
resolution by its Board of Directors, authorizing the execution of this Lease
Agreement and authorizing the individual executing this Lease Agreement to
execute said Agreement on behalf of and in the name of the Corporation. If
Tenant shall fail to provide the executed resolution within the time period
required under this Section, Landlord may, at its option, declare this Lease
Agreement to be null and void and of no further force or effect.
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SECTION 45. RIDER. A Rider consisting of 1 page, with Section numbered 46
and 47 is attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Lease, or have caused the same to be executed on their respective behalves by
their duly authorized representatives, the date and year first above written.
LANDLORD:
WITNESS: WHITE XXXXX BUSINESS CENTER LIMITED
PARTNERSHIP, by its General Partner,
NOTTINGHAM PROPERTIES, INC.,
a Maryland corporation
------------------------------------- By: -----------------------------(SEAL)
P. Xxxxxxx Xxxxxxxxxx,
President
TENANT:
WITNESS OR ATTEST: TOWSON COPY PRODUCTS, INC.,
a Maryland corporation
------------------------------------- By: -----------------------------(SEAL)
Xxxxxxxx X. Xxxxxxx,
President
If Tenant is a corporation, an authorized officer must sign on behalf of
the corporation, and in doing so such officer shall be deemed to have
personally given the covenants and warranties contained in Section 44 hereof.
This Lease must be executed for Tenant, if a corporation, by the president or
vice-president and attested by the secretary or assistant secretary, unless
the by-laws or a resolution of the board of directors shall provide that
another officer is authorized to execute the Lease, in which event, a
certified copy of the by-laws or resolution of the board of directors shall
provide that such other officer is authorized to execute the Lease, and shall
be furnished to Landlord.
STATE OF MARYLAND,
COUNTY OF BALTIMORE, to wit:
I HEREBY CERTIFY that on this _____ day of November, 1988, before me, the
subscriber, a Notary Public of the State of Maryland, personally appeared P.
XXXXXXX XXXXXXXXXX, known to be or satisfactorily proven to be the person
whose name is subscribed to the foregoing instrumnet, who acknowledged that
he is the President of Nottingham Properties, Inc., a Maryland corporation,
which is the General Partner of WHITE XXXXX BUSINESS CENTER LIMITED
PARTNERSHIP, a limited partnership organized and existing under the laws of
the State of Maryland, that he has been duly authorized to execute, and has
executed, such instrument on behalf of said partnership for the purposes
therein set forth, and that the same is its act and deed.
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AS WITNESS my hand and Notarial Seal
---------------------------------------
Notary Public
My Commission Expires: 0/0/00
XXXXX XX XXXXXXXX,
XXXXXX XX XXXXXXXXX, to wit:
I HEREBY CERTIFY that on this ____ day of November, 1998, before me, the
subscriber, a Notary Public of the State of Maryland, personally appeared
XXXXXXXX X. XXXXXXX, known to me (or satisfactorily proven) to be the
President of TOWSON COPY PRODUCTS, INC., and that she as such officer, being
duly authorized so to do, did execute the foregoing Lease Agreement on behalf
of said Corporation, and she acknowledged the foregoing Lease Agreement to be
the act and deed of said Corporation.
AS WITNESS my hand and Notarial Seal.
---------------------------------------
Notary Public
My Commission Expires:
-25-
RIDER ATTACHED TO AND MADE A PART OF THE
WHITE XXXXX BUSINESS CENTER AGREEMENT OF LEASE
DATED: NOVEMBER ____, 1988
BY AND BETWEEN: WHITE XXXXX BUSINESS CENTER
LIMITED PARTNERSHIP AS LANDLORD AND
TOWSON COPY PRODUCTS, INC., AS TENANT
Section 46. RENT ABATEMENT. The Tenant shall pay no Basic Rent for the
first four (4) calendar months of the first Lease Year.
Section 47. RENEWAL OPTION. Provided Tenant is not in default of any of
its obligations hereunder and is in possession of the Premises, Tenant shall
be entitled to renew this Lease for five (5) years immediately following the
expiration of the original or previous Term on the same terms, conditions,
and provisions as are set forth in this Lease with the same force and effect
as though this Lease had originally provided for a nine (9) year, four (4)
month, Term, with the following conditions:
(a) Tenant will give written notification to the Landlord no later than
ninety (90) days prior to the termination date of the original Term of his
election to renew this Lease.
(b) Beginning with and as of the first day of the renewal Term, the
Basic Rent and each monthly installment thereof payable during the renewal
Term shall be adjusted and modified according to the following formula:
If the Consumer Price Index for all Urban Consumers (the "Index") for
Xxxxxxxxx, Xxxxxxxx (0000 - 100), as determined and published by the United
States Department of Labor, Bureau of Labor Statistics, based on all items,
for the month preceding the commencement of the renewal term shall exceed
said Index in effect as of the original Term of the Lease, then, in lieu of
the Basic Rent as set forth in Section 1.6 respecting the original Term of
the Lease, the Basic Rent for each year of the renewal Term shall be an
amount equal to the Basic Rent as set forth in Section 1.6 multiplied by a
fraction, the numerator of which shall be the Index for the month preceding
the commencement of the renewal Term and denominator of which shall be the
Index in effect as of the commencement of the original Term of the Lease,
provided, however, that in no event shall the Basic Rent be less than that
set forth in Subsection 1.6. The index will be adjusted in the event that
said Index shall be converted and, if the Index shall cease to be published,
an Index as nearly comparable as possible shall be used by the parties.
In witness whereof the parties have hereto set their hands and seals as of
the day and year first above written.
LANDLORD:
WHITE XXXXX BUSINESS CENTER LIMITED
PARTNERSHIP, a Maryland limited
partnership by its General Partner,
WITNESS: NOTTINGHAM PROPERTIES, INC.,
a Maryland corporation
------------------------------------- By: ----------------------------- (SEAL)
P. Xxxxxxx Xxxxxxxxxx,
President
TENANT:
WITNESS TOWSON COPY PRODUCTS, INC., a Maryland
corporation
------------------------------------- By: ----------------------------- (SEAL)
Xxxxxxxx X. Xxxxxxx, President
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