LEASE AGREEMENT
This LEASE, is made July 26, 1999 by and between 100 PAINTERS MILL, LLC,
("Landlord"), a Maryland limited liability company and SALES ONLINE DIRECT, INC.
("Tenant"); a Maryland corporation.
WITNESSETH:
That in consideration of the mutual promises herein contained, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, the space
within the building (the "Building") located at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000 and known as Suite 400 containing an agreed upon amount of
4,088 rentable square feet, said space being shaded on Exhibit "A" attached
hereto (the "Premises") for the term of five (5) years (the "Term") beginning on
the Lease Commencement Date as hereinafter defined.
The Rent Commencement Date, whenever used herein, shall be the earlier to
occur of the following: (a) the date when the Premises are ready for occupancy;
or (b) the date when Tenant shall take possession of or occupy the Premises. The
Premises shall be deemed ready for occupancy when the work to be done by
Landlord pursuant to Exhibit B attached hereto is substantially completed or
would have been except for delay due to Tenant as such date is determined by
Landlord in good faith. The Lease Commencement Date, whenever used herein, shall
be the Rent Commencement Date if said date is the first of a month, and, if said
date is not the first of a month, the next succeeding first of the month.
1. Rent:
The annual base rental ("Base Rent") for the first year of the
Term shall be Eighty-Nine Thousand Nine Hundred Thirty-Six Dollars and Four
Cents ($89,936.04), which Tenant shall pay in advance in equal monthly
installments of Seven Thousand Four Hundred Ninety-Four Dollars and Sixty-Seven
Cents ($7,494.67), the first installment of which (to be pro rated on a per day
basis if the Rent Commencement Date is other than the first day of a calendar
month) is due and payable on the Rent Commencement Date, with subsequent
installments due and payable on the first day of each calendar month thereafter
until the Base Rent provided for is paid. In the event the Rent Commencement
Date is not the first day of a calendar month, Tenant shall pay, in addition to
all other sums specified, ($241.76) for each day from the Rent Commencement Date
to the first day of the next calendar month which is the Lease Commencement
Date. Tenant shall pay, concurrently with the signing hereof, the sum of Seven
Thousand Four Hundred Ninety-Four Dollars and Sixty-Seven Cents ($7,494.67),
which shall be credited to the first month's rent under this Lease.
The Base Rent in each subsequent year of this Lease shall be as
follows:
Year Annual Rent Monthly Rent
---- ----------- ------------
2 $89,936.04 $ 7,494.67
3 $89,936.04 $ 7,494.67
4 $91,980.00 $ 7,665.00
5 $94,024.00 $ 7,835.33
2. Payment, Late Charge, Time of Essence:
Tenant shall pay the rent as herein provided without deduction
or set off whatsoever, and without any obligation on the Landlord to make demand
for it. To any installment of rent accruing hereunder and any other sum payable
hereunder, if not paid within five (5) days of when due, shall be added a late
charge of five (5%) percent of the amount overdue for each month the payment is
late. Time is of the essence in this Lease. Payments shall be made to Landlord
at the address set forth herein on the notice address.
3. Pass-Throughs:
A. Real Estate Taxes:
Commencing after the end of the tax/fiscal year in which the
Commencement Date falls (or the first year the "Building" is assessed as a
completed shell, whichever is later), Tenant shall pay to Landlord in each year
of the Term Tenant's proportionate share (the "Tenant's Proportionate Share") of
the amount, if any, by which the Real Estate Taxes (defined below) applicable to
the Property in each such year exceeds the Base Real Estate Taxes (defined
below). For these purposes, Tenant's Proportionate Share shall be 3.67%, which
is the percentage reached by dividing the number of rentable square feet of the
Premises by 111,316 which is the total number of rentable square feet in the
Building. The term "Real Estate Taxes" shall mean any and all real property
taxes, assessments, sewer rates, ad valorem charges, rents and charges, front
foot benefit charges, all other governmental impositions in the nature of any of
the foregoing, and all costs and expenses (including reasonable attorneys' fees
and costs of court or other proceedings) incurred in contesting any property tax
assessment or any other such governmental impositions with respect to the
Property. The "Base Real Estate Taxes" shall be the Real Estate Taxes imposed in
connection with the Property and applicable during the tax/fiscal year in which
the Commencement Date occurs. Tenant shall not be entitled to any credit or
rebate in the event Real Estate Taxes during any one year in the Term are lower
than the Base Real Estate Taxes. Notwithstanding anything herein to the
contrary, in calculating the Tenant's Proportionate Share for any year, Landlord
shall have the right to include in "Real Estate Taxes" all of the same taxes and
assessments that are imposed on other real property which is adjacent to the
Property or part of the same complex, provided that for such calculations the
denominator used in determining the Tenant's Proportionate Share shall also
include the rentable square footage of all buildings on such adjacent property.
B. Operating Expenses:
Commencing after the calendar year 2000, Tenant shall pay to
Landlord in each year of the Term Tenant's Proportionate Share of the amount by
which the Operating Expenses (defined below) for such year exceed the Base
Operating Expenses (defined below). For these Purposes, Tenant's Proportionate
share Shall be 3.67%, which is the percentage reached by dividing the number of
rentable square feet of the Premises by 111,316, which is the total number of
rentable square feet in the Building. " Operating Expenses" shall mean all
expenses, costs and disbursements of every kind and nature incurred in
connection with the ownership, management maintenance, repair and operation of
the Property, including but not limited to the following: (1) cost of wages and
salaries of all employees engaged in the operation and maintenance of the
Building and surrounding grounds and common area, including but not limited to
payroll taxes, insurance and benefits; (2) cost of all supplies and materials
used in the operation, maintenance and repair of the Building and all other
portions of the Property; (3) cost of all utilities (including surcharges),
including but not limited to water , sewer, electricity and gas for both the
rentable space and the common areas of the Building; (4) costs incurred under
all maintenance and service agreements for the Building, including but not
limited to access control, energy management services, window cleaning, elevator
maintenance, janitorial service and landscaping; (5) cost of insurance relating
to the Property, including but not limited to the cost of casualty and liability
insurance; (6) cost of repairs and general maintenance to the Building and the
Property; (7) property management fees and expenses including, without
limitation, computer expenses; (8) cost of audit and accounting services; (9)
the costs of any repairs, replacements or capital improvements required or made
necessary by law or changes in law; (10) cost of any capital improvements made
to the Building that, in Landlord's reasonable judgment, will reduce other
operating expenses or increase energy efficiency, provided such costs are
amortized in accordance with generally accepted accounting principles ("GAAP")"
at such rates as may have been paid by Landlord on funds borrowed for the
purpose of constructing such capital improvements, or if no such funds were
borrowed, at such reasonable rates as are not in conflict with GAAP, (11) cost
of any licenses or permits required by any public authority, (12) snow removal
from the common areas of the Property, and (13) all costs, charges and expenses
incurred by Landlord in connection with any charge of any company providing
electric, telephone or gas services to the Building or the Property including,
without limitation, maintenance, repairs, installation and service costs
associated therewith. The "Base Operating Expenses" shall be the Operating
Expenses applicable during the calendar year in which the Commencement Date
occurs. Tenant shall not be entitled to any credit or rebate in the event
Operating Expenses in any one year during the Term are lower than the Base
Operating Expenses. Notwithstanding anything herein to the contrary, in
calculating the Tenant's Proportionate Share for any year, Landlord shall have
the right to include in "Operating Expenses" all of the same operating expenses
as are described above that are incurred in connection with other real property
which is adjacent to the Property or part of the same complex, provided that for
such calculations the denominator used in determining the Tenant'
C. When Due and Payable
(1) All rental and other monetary obligations of Tenant set
forth in the forgoing provisions and elsewhere in this Lease (whether or not
characterized as rent), except for Base Rent, shall be referred to hereinafter
as "Additional Rent". All Base Rent and Additional Rent are sometimes
hereinafter together referred to as "Rent".
(2) The Base Rent for each year (or part thereof) during the
Term shall be due and payable in twelve (12) consecutive, equal monthly
installments, in advance, on the first day of each calendar month during the
Term, provided that the installment of Rent for the first full calendar month of
the Term shall be due upon execution of this Lease. All payments shall be sent
to the notice address shown in this Lease, or to such other address as Landlord
may designate in writing.
(3) Tenant shall pay all Additional Rent within thirty (30)
days after being billed therefor by Landlord. However, Landlord may, at its
discretion, (a) make from time to time during the Term a reasonable estimate of
the Additional Rent which may become due for any year , (b) require the Tenant
to pay to the Landlord such Additional Rent in equal monthly installments at the
time and in the manner that the Tenant is required hereunder to pay monthly
installments of Base Rent, and (c) at the Landlord's reasonable discretion,
increase or decrease from time to time during such year the amount initially
estimated for such year, all by giving the Tenant written notice thereof. In
such event, Landlord shall cause the actual amount of such Additional Rent to be
calculated, and Tenant or Landlord shall within thirty (30) days pay to the
other the amount of any deficiency or overpayment, whichever the case may be.
(4) Landlord shall have the right to apply any payment of
Rent by Tenant to any amounts outstanding, in any order, in Landlord's sole
discretion. Acceptance by Landlord of any partial payment of Rent shall not be
deemed a waiver or satisfaction of the Tenant's obligation to pay al remaining
amounts of Rent hereunder, which amounts shall remain due in their entirety
according to the terms of this Lease.
D. Proration:
All items of Rent shall be prorated, based on actual days
elapsed, for any month during the Term which is not a full calendar month or in
which two different rental rates are applicable. Appropriate prorations shall
also be made in determining the Tenant's proportionate share of increases in
Real Estate Taxes to the extent the tax/fiscal year is not a calendar year. If
only part of any calendar year falls within the Term, the amount computed as
Additional Rent for such calendar year under the foregoing provisions of this
section shall be appropriately prorated, but the expiration of the Term before
the end of a calendar year shall not limit the Tenant's obligation hereunder to
pay the prorated portion of Additional Rent applicable to that portion of such
calendar year falling within the Term.
4. Care of Premises:
A. Ordinary Services:
During the hours of 8:00 AM to 6:00 PM Monday through Friday
and 8:00 AM to 1:00 PM on Saturdays (except federal holidays) in the appropriate
seasons of the year, Landlord shall provide heating and air-conditioning to the
Premises for the comfortable use and occupancy of the Premises. In addition,
Landlord shall provide (a) electricity, gas and water suitable for the use of
the Premises in accordance with the provisions of Section 6 herein, (b)
automatic elevator service within the Building and (c) janitorial service and
trash removal service (Monday-Friday only). All such services shall be included
in the Operating Expenses of the Building. B. Extraordinary Services: Landlord
shall not be obligated to provide to or for the benefit of the Premises any of
the services referred to in the provisions of Section 4.A above other than
during the hours referred to therein. If Tenant requests such services to be
continued during extended hours, Tenant shall pay to the Landlord as Additional
Rent the amount for time to time charged by Landlord for such extended service,
such amount to be calculated by Landlord based upon the costs incurred or to be
incurred by Landlord to provide such services during extended hours and the
number of tenants sharing such services at the time requested. C. Excessive Use.
Tenant shall not, without first obtaining Landlord's written consent thereto,
install within the Premises any electrical machinery, appliances or equipment
(including, by way of example rather than of limitation, any electrical heating,
cooking, water-heating or refrigeration equipment, kitchen equipment,
photocopying equipment, electronic data processing machinery, reproduction
equipment or punch-card machinery) which uses electrical current in excess of
that which is standard for the Building, and Tenant shall pay as Additional Rent
the additional expense incurred by the Landlord as a result of any of the
foregoing, including that resulting from any installation of such equipment. In
the event Landlord determines Tenant is consuming a disproportionate amount of
electricity or other utilities in proportion to other tenants, and regardless of
whether such determination is reached by surveys, submetering, or other methods,
Landlord may, at its option, either (a) install at Tenant's expense a submeter
gauging consumption of the respective utility at the Premises, in which case
Tenant shall arrange to pay the cost of such utility consumption directly to the
supplier, or (b) require that Tenant pay Landlord monthly, as Additional Rent,
the cost of such additional electricity or other utilities, which cost shall be
estimated on a monthly basis by the Landlord using its reasonable discretion.
Notwithstanding the above, Landlord agrees that 30+/- personal computers will
not be considered as excessive use. D. Maintenance by Tenant: Tenant shall at
all times maintain the interior of the Premises in good, clean, and safe repair
and condition, ordinary wear and tear, damage by fire and other casualty
excepted.
E. Maintenance by Landlord:
Landlord shall furnish, supply and maintain in good order
and repair (a) the roof and other structural portions of the exterior of the
Building, (b) all hallways, stairways, lobbies, elevators, heating and
air-conditioning facilities and restroom facilities within the Building, (c) all
standard interior light fixtures and bulbs, including that within the Premises,
and (d) all other common areas of the Property.
F. Interruption:
Landlord shall have no liability to Tenant on account of any
failure, modification or interruption of electricity, water or other utility or
HVAC or other service, but, in the event of interruption, Landlord shall take
reasonable steps to provide for the resumption of such service to the extent the
same is within Landlord's control. There shall be no allowance to Tenant for any
diminution of rental value of the Premises; and
Landlord shall be under no liability to Tenant for any
discontinuance of heat, air conditioning, and hot water unless directly due to
Landlord's negligence and not covered by insurance carried or otherwise required
to be carried by Tenant under this Lease. Landlord shall not be liable for any
loss or damage to the Tenant caused by rain, snow, water or storms that may leak
into or flow from any part of the premises through any defects in the roof or
plumbing or from any other source unless directly due to Landlord's negligence
and not covered by insurance carried or otherwise required to be carried by
Tenant under this Lease.
There shall be no allowance to Tenant for any diminution of
rental value and no liability on the part of the Landlord by reason of
inconvenience, annoyance or injury to business arising from the making by
Landlord, Tenant or others of any repairs in or to the Building or the Premises,
or in or to the fixtures, appurtenances or equipment thereof.
5. Utilities:
Landlord shall, at its own cost and expense, pay all charges
when due for water gas, electricity, heat, sewer rentals or charges and any
other utility charges incurred in the use of the Premises. At Landlords' option,
Landlord may, at Landlord's cost and expense, install separate water sub-meters
and HVAC after hours monitoring meters for each Tenant. Landlord shall have the
right at anytime and from time to time during the Term to contract for electric,
gas and telephone service from any company providing said services.
6. Use and Occupancy:
The Premises shall be used by Tenant only for the purpose of
general corporate offices and for no other purpose without Landlord's prior
written consent. Tenant shall comply with all applicable laws and other legal or
governmental requirements in connection with its use and occupancy of the
Premises; and Tenant shall not use the Premises for any unlawful purpose; nor
shall Tenant conduct or permit to be conducted on the Premises any activity in
violation of any law of the City and/or County in which the Premises are located
or State or Federal law, ordinance or regulation.
7. Permitted Name:
Tenant shall conduct business on the Premises only in the
name of Tenant and under no other name or trade name unless and until the use of
some other name is first approved in writing by Landlord, which approval shall
not be unreasonably withheld or delayed. No change in name shall constitute an
assignment of the obligations of Tenant hereunder.
8. Access by Landlord:
Landlord shall retain duplicate keys to all of the doors of
the Premises, and Landlord or its agents shall have access to the Premises at
all reasonable hours in order to inspect same, to clean or to make necessary
repairs, additions or changes to the services in the Building or tenant
improvements within the Premises or the Building with reasonable prior notice to
Tenant unless a bona fide emergency situation exists, at which time no prior
notice is required. Landlord shall have the right to show the Premises to
prospective tenants at any time during the final six (6) months of the Term or
any extension or renewal thereof, providing it provides Tenant with reasonable
prior notice and it does not unduly interfere with Tenant's use of the Premises.
9. Subordination:
This Lease shall be subject to and subordinate at all times
to the lien of any mortgage and/or deed of trust now or hereafter entered into
by Landlord and affecting the Property and to all advances made or hereafter to
be made thereunder; and to any extensions, modifications, or amendments thereof.
This subordination provision shall be self-operative and no further instrument
of subordination shall be required. If the secured party under any such mortgage
or deed of trust or any other person shall succeed to all or part of Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, Tenant shall,
upon request, attorn to such successor-in-interest upon not less than five (5)
days' prior notice. Tenant shall execute any instruments, in form of substance
acceptable to such secured party or purchaser of the Property, confirming the
subordination of this Lease and the attornment obligation of Tenant hereunder.
Landlord will provide Tenant with a Subordination, Attornment and
Non-Disturbance Agreement on the form attached hereto as Exhibit C.
10. Assignment or Subletting:
Tenant shall not assign, mortgage or encumber this Lease,
nor sublet the Premises or any part thereof without Landlord's prior written
consent which consent shall not be unreasonably withheld. Any consent by
Landlord to any assignment or sublet shall not be deemed as a waiver of
Landlord's right to consent to any future assignment or sublet. In the event of
the insolvency or bankruptcy of Tenant, this Lease shall, at the option of
Landlord, terminate forthwith, and this Lease shall not, by operation of law or
otherwise, be considered a part of Tenant's estate.
11. Alterations:
Tenant shall not make or permit any alterations, additions
or improvements to the Premises without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, and all additions
and improvements made by Tenant, except only moveable office furniture and
equipment, shall become the property of the Landlord at the termination of this
Lease or the vacating of Premises. Landlord, in its sole discretion, can
prohibit Tenant or its agent from making any penetrations of the floor or
ceiling concrete slabs. At Landlord's request, at the end of the Term or renewal
term if applicable, Tenant shall restore any changes in the Premises which are
inconsistent with the standard features of the Building or which were otherwise
made without the written consent of Landlord.
12. Increased Fire Insurance Rate:
Tenant shall not do, permit to be done or keep or permit to
be kept anything in, upon or about the Premises which will contravene Landlord's
policies insuring against loss or damage by fire or other hazards, including but
not limited to public liability or which will prevent Landlord from procuring
such policies in companies acceptable to Landlord. If anything is done, omitted
to be done or allowed to be done by Tenant or kept or allowed by Tenant to be
kept in, upon or about the Premises that shall cause the rate of fire or other
insurance on the Premises or other property of Landlord in companies acceptable
to Landlord to be increased beyond the minimum rate from time to time applicable
to the Premises for use for the purposes permitted under this Lease, Tenant
shall pay the amount of such increase promptly upon Landlord's demand as
Additional Rent. Landlord represents that the use as set forth in Section 6
hereof does not violate Landlord's insurance policy.
13. Common Facilities:
Landlord hereby grants to the Tenant a non-exclusive license
to use (a) all elevators, stairways, lobbies, hallways and other common areas of
the Building, and (b) all portions of the grounds on which the Building is
located which are manifestly designed and intended for common use by the
occupants of the Building, all for pedestrian ingress and egress to and from
the, Premises. Such license shall be exercised in common with the Landlord and
other tenants and their respective employees and invitees and in accordance with
the Rules and Regulations promulgated from time to time pursuant to the
provisions of Section 19 herein. The common areas and facilities which may be
furnished by Landlord in or near the Building for any or all of the common
general common use of tenants, their officers, agents, employees and customers,
including, without limitation, all parking areas, access roads, employee parking
areas, driveways, loading docks and areas, delivery passages, sidewalks, malls,
courts and ramps, landscaped and planted area, retaining walls, stairways, bus
stops, lighting facilities, comfort stations, elevators and other areas and
improvements, shall at all times be subject to the exclusive control and
management of Landlord. Landlord reserves the right, in its sole discretion, to
change, rearrange, alter, modify, reduce or supplement any or all of the common
areas or facilities and to make alterations or additions to and to build
additional levels on or to the Building so long as Tenant's reasonable access to
and use of the Premises is not materially adversely affected.
14. Signs:
Tenant shall not display any sign, picture, advertisement,
awning, merchandise, or notice on the outside or roof of the Building or on the
exterior of the Premises unless approved by the Landlord in writing. Tenant
shall be entitled to an identification sign at the entrance to the Premises and
on the lobby directories which sign shall be in conformity, as to size, style
and location, with the standard signage scheme established by Landlord for the
Building. Tenant shall, within a reasonable time, submit to Landlord for
Landlord's approval, the requested words for said sign. Tenant shall have no
right to change the style or size of the sign or lettering thereon, if same
conform with the standard scheme for the Building, but Tenant may change or
correct the spelling of the names to be displayed thereon. Tenant's log may go
on door plaque outside suite in accordance with building standard signage
regulations.
15. Display:
Tenant shall not display any merchandise, place vending
machines or show cases or other obstructions on the outside of the Building, or
the Premises, or in any lobby or passageway adjoining the same.
16. Damage to Premises:
If the Premises are partially damaged by fire or other
casualty, Landlord shall make repairs as promptly as commercially feasible. If
the damage renders the Premises wholly unfit for occupancy, the Rent shall xxxxx
until the Premises are repaired by Landlord or Landlord elects to terminate this
Lease. In the event of total or substantial destruction of the Building, or if
in the judgment of the Landlord the damage to the Demised Premises cannot be
repaired within one hundred twenty (120) days, after the date of the Damage or
the proceeds of insurance are not sufficient or are not made available to
Landlord by its mortgagee to repair the Premises to their former condition, and
if Landlord shall decide not to restore or repair the same, or shall decide to
demolish the Building, then Landlord or Tenant may, within sixty (60) days after
such fire or other casualty, by notification to the other party, terminate this
Lease. In the event the Premises are only partially damaged and fit for
occupancy, Tenant shall continue to pay Rent, which Rent shall be adjusted
proportionately based upon the area of the Premises which can continue to be
occupied and used by Tenant. In no event shall Landlord be liable for any loss
or damage sustained by Tenant by reason of fire or other accidental casualty.
17. Waiver or Breach:
No waiver of any breach of the covenants, provisions or
conditions contained in this Lease shall be construed as a waiver of the
covenant itself or any subsequent breach itself. If any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
18. Rules and Regulations:
Tenant shall comply with all rules and regulations ("Rules
of Regulations") of the Building which Rules and Regulations are attached hereto
as Exhibit "C" and are hereby made a part of this Lease. Any material violation
of the Rules and Regulations shall be a default under this Lease subject to
Section 26 hereof. Landlord shall have the right to make additions and
amendments to the Rules and Regulations, which shall be as binding on Tenant as
if set forth herein, provided such additions and amendments do not materially
and adversely affect the Tenant's use of the Premises, are not inconsistent with
the terms of this Lease, Tenant receives written notification of such changes,
and the Rules and Regulations are uniformly applied to all tenants of the
Building.
19. Insurance:
(a) Tenant shall procure and maintain in force public
liability and property damage insurance (including insurance against assumed or
contractual liability under this Lease) in a company or companies acceptable to
Landlord for the Premises and the business of Tenant conducted at the Premises
which policies shall be written to protect the Tenant and Landlord in the amount
of One Million Dollars ($1,000,000) combined single limit per occurrence with at
least an aggregate of Two Million Dollars ($2,000,000) excess coverage and with
coverage in the amount of not less than Fifty Thousand Dollars ($50,000)
property damage or destruction. Tenant shall also procure and maintain in force
all risk property damage insurance with respect to any property of Tenant
installed in or kept upon the Premises. Tenant shall furnish to Landlord
certificates of the issuance and maintenance of such policies of insurance, all
of which shall name Landlord as on additional insured and shall be paid for by
the Tenant.
(b) Landlord and Tenant shall cause the insurance policy
carried by each such party insuring the Premises and/or its fixtures and
contents against loss by fire or other casualties to be written in a manner so
as to provide that the insurance company waives all right of recovery by way of
subrogation against Landlord or Tenant in connection with any loss or damage
covered by any such policies. Neither Landlord nor Tenant shall be liable to the
other or to any insurance company (by way of subrogation or otherwise) for loss
or damage caused by fire or any other risk included in the coverage of the
standard all risk fire and extended available coverage insurance in Maryland
(provided that such insurance was obtainable with waiver of subrogation in
advance of loss at the time of such loss or damage), notwithstanding that such
loss or damage is caused by or occurs through or as result of any acts or
omissions (negligent or otherwise) of a party hereto, or its agents, servants or
employees or any other cause which would result in liability under this Lease or
by operation of law. If the release of either Landlord or Tenant, as set forth
in the second sentence of this Paragraph, shall contravene any law with respect
to exculpatory agreements, the liability of the party in question shall be
deemed secondary to the liability of the other party's insurer.
20. Indemnity:
Tenant shall defend, indemnify and save harmless Landlord from
and against any and all claims, actions, damages, losses, liabilities, costs and
expenses (including reasonable attorneys' fees) in connection with loss of life,
personal injury and/or damage to property (including environmental and hazardous
waste damages) arising from or out of any occurrence in, upon or at the
Premises, the Building and/or the Property or the occupancy or use by Tenant of
the Premises, the Building and/or the Property or any part hereof, or occasioned
wholly or in part, by any act or omission or negligence of Tenant, its agents,
contractors, employees, servants, lessees or invitees or the failure of Tenant,
its agents, contractors, employees, or servants to perform or observe any
provision of this Lease. In case Landlord shall, without fault on its part, be
made a party to any litigation commenced by or against Tenant, then Tenant shall
protect and hold Landlord harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred by Landlord in connection with such
litigation.
Landlord shall defend, indemnify and save harmless Tenant from
and against any and all claims, actions, damages, losses, liabilities, costs and
expenses (including reasonable attorneys' fees and cost of litigation) in
connection with loss of life, personal injury and/or damage to property
(including environmental and hazardous waste damages) part hereof, or occasioned
wholly in part, by any act or omission of Landlord, its agents, contractors, or
employees or servants. In case Tenant shall, without fault on its part, be made
a party to any litigation commenced by or against Landlord, then Landlord shall
protect and hold Tenant harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred by Tenant in connection with such
litigation.
21. Condemnation:
In the event the whole or any part of the Premises shall be
taken under the power of eminent domain, or sold under threat thereof, or taken
in any manner for public use, the Landlord, at its option, may terminate this
Lease, which Lease shall then terminate on the effective date of the
condemnation or sale. The compensation awarded or paid for such taking, both as
to Landlord's reversionary interest and Tenant's interest under this Lease, is
hereby assigned by Tenant to Landlord and shall belong to and be the sole
property of Landlord. Tenant shall have no claim against the Landlord or be
entitled to any award or damages other than an abatement of the Rent beyond the
period of termination date of this Lease and any compensation paid by the
condemning authority directly to Tenant for moving expenses and/or cost of
removal of stock and/or trade fixtures, if allowable by the condemning
authority.
22. Additional Rent and Attorney's Fees:
Whenever, under the terms of this Lease, any sum of money is
required to be paid by Tenant in addition to the Rent herein reserved, whether
or not such sum is herein designated as "Additional Rent", or provision is made
for the collection of such sum as "Additional Rent", said sum shall,
nevertheless, at Landlord's option, if not paid when due, be deemed Additional
Rent, and shall be collectable as such. In the event of employment of an
attorney by Landlord because of the default or failure to perform by Tenant of
any term or provision of this Lease, Tenant shall pay Landlord upon demand all
reasonable attorney's fees incurred by Landlord in connection therewith.
23. Covenant to Surrender:
This Lease and the tenancy hereby created shall cease and
terminate at the end of the original Term hereof, without the necessity of any
notice of termination from either Landlord or Tenant, and Tenant hereby waives
any notice of termination or to surrender the Premises and Tenant agrees that
Landlord shall be entitled to the benefit of all laws respecting summary
recovery of possession of premises from a tenant holding over to the same extent
as if statutory notice was given, provided, however, that this Lease and the
tenancy hereby created shall not so cease and terminate at the end of the
original Term if Tenant shall have been granted an option or options to renew
and shall have exercised said option or options in accordance with the terms
thereof and shall be entitled to remain in possession under said option and/or
options. In said event, this Lease and the tenancy hereby created shall cease
and terminate at the end of the last option period exercised under the terms of
this Lease without the necessity of any notice of termination or to surrender
from either Landlord or Tenant, and Tenant hereby waives notice of termination
and to surrender and agrees that Landlord shall be entitled to the benefit of
all laws respecting summary recovery of possession of premises from the tenant
holding over to the same extent as if statutory notice were given. If Tenant
shall occupy the Premises after such expiration or termination, Tenant shall, at
the sole option of Landlord, hold the Premises as a tenant from month to month,
subject to all the other terms and conditions of this Lease, at an amount equal
to one and one half (1 1/2)times the highest monthly Base Rent reserved in this
Lease.
24. Quite Enjoyment:
Landlord covenants that, upon the payment of the Rent herein
provided, and the performance by Tenant of all covenants herein, Tenant shall
have and hold the Premises, free from any interference from the Landlord,
subject to the terms and conditions hereof and except as otherwise provided for
herein.
25. Tenant Default:
(a) Upon any default by Tenant in payment of Rent to
Landlord as provided in this Lease and such default continues for more than five
(5) days after written notice thereof is provided to Tenant, or if the Premises
shall be abandoned, Landlord shall have the right to enter the Premises and
distrain for any amount of Rent that may be due under this Lease, either by
force or otherwise, without being liable to any prosecution therefor, and to
apply any proceeds to the payment of the Rent due or to be due, Tenant remaining
liable for any deficiency.
(b) Upon any default by Tenant of any provision or covenant
of this Lease other than the payment of Rent, the Landlord shall have the right,
after not less than thirty (30) days prior written notice to the Tenant, to cure
such default on behalf of Tenant, at the risk and expense of Tenant, and to
render a xxxx for the cost thereof to Tenant, which shall be payable as Rent.
Upon failure of the Tenant to pay such xxxx within ten (10) days after sending
such xxxx to Tenant at the Premises, Landlord shall have the same rights and
remedies against Tenant (and the Premises) as it has in the event of nonpayment
of Rent.
(c) After (i) the default by Tenant in the payment of Rent
and the applicable notice to Tenant provided for herein, or (ii) the default by
Tenant of any of the other covenants or provisions on the part of Tenant to be
performed this Lease and the applicable notice to Tenant provided for herein,
then Landlord shall have the right, with or without terminating this Lease, to
re-enter and take possession of the Premises without formal notice if the
default has not been corrected within said applicable time period (provided that
if Tenant has commenced to cure any defaults (other than the failure to pay
Rent) within said applicable time period and thereafter proceeds, with due
diligence to complete same, it shall not constitute a default), and it is
further agreed that, notwithstanding such reentry, Tenant shall remain liable
for all Rent and other damages and losses as of the date of re -entry, and shall
further be liable, at the option of the Landlord, for the amount of Rent
reserved under the Lease for the balance of the term, less any amount of rent
received by the Landlord during such period from others to whom the Premises may
be rented on such terms and conditions and at such rentals as Landlord, in its
sole discretion, shall deem proper, all of which shall be at the risk and
expense of the Tenant. In addition, Landlord, at its option, shall have the
right to repossess the Premises and terminate this Lease.
(d) In the event Landlord terminates this Lease, the
Landlord may, without further notice, re-enter the Leased Premises and
dispossess Tenant, or other occupants of the Premises, and remove their effects
and hold the Premises as if this Lease has not been made. Landlord shall also be
entitled to the benefit of all provisions of law respecting the summary eviction
of tenants in default or tenants holding over, or respecting proceeding in
forcible entry and detainer in the County in which the Premises are located, or
that may hereafter be enacted.
(e) Any remedy of Landlord stated in this Lease shall be in
addition to any and all other remedies which Landlord may be entitled by statute
or at Law or in equity. The exercise of any one or more of said rights or
remedies by Landlord shall not be construed as a waiver of any other rights or
remedies, it being understood that all of said rights and remedies shall be
cumulative and may be exercised simultaneously.
(f) Upon a default by Tenant under this Lease which is not
cured within the applicable time period after notice to Tenant of such default,
Tenant hereby waives all statutory, legal and/or equitable rights to redeem the
Premises or to redeem its interest under this Lease.
26. Notice:
All notices from Tenant to Landlord shall be sent by
Registered or Certified Mail, Return Receipt Requested, Hand Delivery or
nationally recognized overnight delivery service and addressed to Landlord at
P.O. Box 548, l00 Painters Xxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxx 00000.
After the Commencement Date, all notices from Landlord to Tenant shall be sent
by Registered or Certified Mail, Return Receipt Requested, Hand Delivery, or by
nationally recognized overnight Delivery Service and addressed to Tenant at the
Premises. Either party may from time to time, designate, in writing and in the
manner herein provided, a substitute address, and thereafter all notices shall
be sent to such substitute address.
27. INTENTIONALLY DELETED
28. Representations:
Landlord or Landlord's agents have made no representations or
promises with respect to the Building or Premises except as herein expressly set
forth.
29. Trial by Jury:
Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other 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
Premises, any claim of injury or damage, and/or any remedy. Tenant shall not
interpose any counterclaim in any action or proceeding by Landlord against
Tenant arising out of or in connection with this Lease.
30. Parking:
During the Term of this Lease, employees and customers of
Tenant will be entitled to the non-exclusive use, free of charge but in common
with others, of the driveways, footways, and parking areas provided that such
use shall be subject to such Rules and Regulations as Landlord may, from time to
time, prescribe governing the same; and provided, further, that Landlord shall
at all times have full and exclusive control, management and direction of said
driveways, footways and parking areas. Landlord shall have the right to police
the same; to restrict parking by Tenant, their agents and employees; to
designate employee parking areas; to establish and enforce parking charges (by
meters or otherwise) with appropriate provisions for free parking ticket
validation by tenants; to close temporarily all or any portion of the parking
areas or facilities as may be required for proper maintenance and/or repairs; to
discourage non-customer parking; and to do and perform such other acts in and to
such areas in the use of its business judgment, the Landlord shall determine to
be advisable in order to improve or make more convenient use thereof by Tenant,
its 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 the same by erecting therein store buildings and other
structure or improvements of any kind.
31. Gender:
Reference to masculine, feminine or neuter shall include
proper gender as the case may be. If more than one Tenant is named herein, the
obligations of the person so named shall be joint and several.
32. Construction of Premises:
To the extent reasonably feasible, Landlord shall make
available to Tenant the benefits of all warranties and guarantees obtained from
contractors, subcontractors, suppliers and manufacturers in connection with the
work performed by Landlord to the Premises and described on Exhibit "B" hereto.
33. Access by Tenant:
Prior to the Commencement Date and provided all insurance
required under Paragraph 20 has been furnished to Landlord, Landlord shall allow
the Tenant and their agents or employees to enter upon the Premises for the
purpose of erecting fixtures and improvements not provided by the Landlord.
Tenant and its agents or employees shall perform their work at such times and in
a manner which will not interfere with the work being performed by Landlord. All
work performed by Tenant or on its behalf shall be done in a good and
workmanlike manner. The entry upon the Premises by Tenant or its agents or
employees pursuant to this Paragraph shall not be deemed to be occupancy of the
Premises for the purpose of Paragraph 1 hereof.
34. Estoppel Certificates:
Tenant agrees that at any time, and from time to time, upon
not less than five (5) days prior notice by Landlord, it will execute,
acknowledge, and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified, and
stating the modifications) and the dates to which the rent and other charges
have been paid in advance, if any, and stating whether or not, to the best
knowledge of the signer of such certificate, 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 the signer may have knowledge, it
being intended that any such statement delivered hereunder may be relied upon by
any third party not a party to this Lease.
35. Landlord's Liability:
Landlord is a Maryland limited liability company, and Tenant
agrees that in the event of the entry of any judgment against Landlord, as it is
now or may hereafter be constituted, arising out of or in connection with this
Lease, neither Landlord, nor any member, principal, officer, or employee of
Landlord, shall have any personal liability whatsoever therefor and Tenant shall
look solely to Landlord's interest in the Property to satisfy or pay such
judgment and Tenant shall have no right to recover against any member,
principal, officer or employee of Landlord or against any of Landlord's other
assets.
36. Relocation: INTENTIONALLY DELETED
37. Possession:
The parties hereto anticipate that the Premises will be
ready for occupancy on or about the first day of October, 1999. In the event the
Premises are not ready for occupancy on the date stipulated, the Lease shall
nevertheless continue in full force and effect and Tenant shall have no right to
rescind, cancel or terminate the same, nor shall the Landlord be liable for
damages, if any, sustained by Tenant's inability to obtain possession on such
date, except that the Commencement Date shall be moved forward to the date on
which possession is made available.
38. Landlord's Work
Landlord agrees, at its cost and expense, to do the following
work within the Premises prior to the Commencement Date:
1. Build-out the Premises in accordance with the plans and
workletter attached hereto as Exhibit B.
39. Environmental, Covenants:
A. Prohibitions:
Tenant, its employees, licensees, invitees, agents and
contractors shall not use, manufacture, release, store or dispose of on, under
or about the Premises any explosives, flammable substances, radioactive
materials, asbestos in any form, paint containing lead, materials containing
urea formaldehyde, polychlorinated biphenyls, or any other hazardous, toxic or
dangerous substances, wastes or materials, whether having such characteristics
in fact or defined as such under federal, state or local laws or regulations and
any amendments thereto (all such materials and substances being hereinafter
referred to as "Hazardous Materials") provided that Tenant may store products
which are of a type customarily found in offices (such as toner for copiers and
the like) in a careful, safe and lawful manner and without contaminating the
Premises, the Building, the Property or the environment.
B. Inspection:
Landlord, in addition to its other rights under this Lease,
may enter upon the Premises at any time for the purposes of inspecting to
determine whether the Premises, the Building, the Property or the environment
have become contaminated with Hazardous Materials. In the event Landlord
discovers the existence of any such Hazardous Materials due to fault or other
act of Tenant or its agents, employees, invitees or licensees, Tenant shall
reimburse Landlord upon demand for the costs of such inspection, sampling and
analysis.
C. Indemnification:
Without limiting the above, Tenant shall indemnify and hold
harmless Landlord from and against any and all claims, losses, liabilities,
damages, costs and expenses, including without limitation attorneys' fees and
the coats of any required or necessary repair, cleanup or detoxification,
arising out of or in any way connected with the existence, use, manufacture,
storage or disposal of Hazardous Materials by Tenant or its employees, agent,
invitees, licensees or contractors on, under or about the Premises, the Building
or the Property. The indemnity obligations of Tenant under this clause shall
survive any termination of this Lease.
40. Broker Commissions:
Each party hereto hereby represents and warrants to the
other that in connection with the leasing of the Premises hereunder, the party
so representing and warranting has not dealt with any real estate broker, agent
or finder, except for X.X. Xxxxxxx & Co., Inc. d/b/a Colliers Xxxxxxx (the
"Broker"). Each party hereto shall indemnify the other against any inaccuracy in
such party's representation. Landlord hereby agrees that it shall pay a
commission to the Broker according to a separate agreement. The parties
acknowledge and agree that the broker shall be a third party beneficiary of the
foregoing covenants.
41. Option to Renew:
If Tenant shall not be in default in the payment of Rent or in
material default in the performance of any of the other covenants, conditions
and agreements of this Lease, Tenant shall have the right, at its election, to
renew this Lease for a further term of five (5) years by signifying its
intention to renew, in writing, to the Landlord no later than six (6) months
preceding the termination date of the original Term of this Lease, time being of
the essence. This renewal term shall be upon the same terms, covenants and
conditions as are set forth herein for the original term, except that the annual
Base Rent (as set forth in Paragraph 1 of this Lease) for the renewal term shall
be as follows:
Lease Year Base Rent Monthly Rent
---------- --------- ------------
6 $ 96,068.04 $ 8,005.62
7 $ 98,112.00 $ 8,176.00
8 $100,155.96 $ 8,346.33
9 $102,200.04 $ 8,516.67
10 $104,244.00 $ 8,687.00
42. Right of First Offer for Expansion:
Tenant shall have a right of first offer to lease the
adjacent space located on the fourth (4th) floor of the Building and also shown
on Exhibit A hereto (the "Expansion Space"), subject to the following terms:
A. Landlord shall notify Tenant with a written notice at the
time all of such Expansion Space becomes available for lease. Such notice shall
include (1) the Base Rent to apply to the Expansion Space, which Base Rent shall
be at a per square foot rate which is equal to the greater of the market rate in
effect for comparable space in the area of the Premises at the time or the rate
of Base Rent which is then in effect under the Lease, (2) the date on which the
Tenant may occupy such space, and (3) any other material terms upon which the
Landlord is offering such space to the Tenant. In order to exercise this right
of first offer, Tenant must give Landlord written notice of the exercise and
acceptance of such terms in Landlord's notice within three (3) days after
receiving the notice. The foregoing right of first offer shall not apply if a
part, but not all, of the Expansion Space becomes available.
B. If Tenant timely accepts the Landlord's offer in
accordance with A above, then Tenant's leasing of the Expansion Space shall be
subject to and upon all other terms of this Lease for the remainder of the Term,
except that Tenant's Proportionate Share of increases in Real Estate Taxes and
Operating Expenses shall be increased proportionately to reflect the addition of
the Expansion Space to the Premises.
C. Tenant shall lease the Expansion Space under the Lease
(as so amended) as-is without warranty of condition for the period from the
effective date of availability of such space set forth in Landlord's notice
through the expiration of the Term of the Lease.
D. If Tenant fails to give notice accepting the Landlord's
offer by the time required above, or if at the time Tenant accepts such offer or
at the time Tenant's lease of the Expansion Space becomes effective Tenant is in
default of any term of this Lease, or if this Lease is assigned by Tenant or the
Premises are sublet in whole or in part, then Tenant's right of first offer
provided in this section shall be automatically terminated and of no further
force or effect, and Landlord shall have the right to lease the Expansion Space
to any parties and upon any terms it deems acceptable.
43. Miscellaneous:
A. This Lease and the covenants, terms and conditions
contained herein shall inure to the benefit of and be binding on Landlord,
provided that if Landlord sells or otherwise transfers title to building or Real
Property, Landlord shall be relieved of all covenants and obligations hereunder
upon completion of such sale or transfer, and it shall be considered that the
transferee has assumed and agreed to carry out all of the obligations of the
Landlord hereunder. This Lease and the covenants, terms and conditions contained
herein shall be binding on and inure to the benefit of the Tenant, its personal
representatives, successors, and, except as otherwise provided in this Lease,
its assigns.
B. If any provision of this Lease, or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease or the application of such provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each such remaining provision
shall be valid and enforceable to the fullest extent permitted by law.
C. This Lease shall be enforced, governed by and construed
in all respects in accordance with the laws of the State of Maryland, without
regard to principles of conflicts of laws. This Lease shall become effective on
and only on its execution and delivery by each party hereto.
D. Upon request from Landlord no more than once in a lease
year, Tenant shall furnish to Landlord Tenant's most recent annual financial
statement containing a balance sheet, profit and loss statement, and statement
of charges in condition, prepared and certified by an independent certified
public accountant or by Tenant's chief financial officer.
E. Submission of this Lease for examination does not
constitute a reservation of or option for the Premises; and this Lease shall
become effective only upon its execution and delivery by both Landlord and
Tenant.
F. Tenant represents and warrants that it is a duly
organized, it is qualified to do business in Maryland, it is in good standing
under the laws of the state of its organization and the laws of Maryland, it has
the power and authority to enter into this Lease, and that all action requisite
to authorize Tenant to enter into this Lease has been duly taken.
G. This Lease, together with its exhibits, contains all
agreements of Landlord and Tenant and supersedes any previous negotiations.
There have been no representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease and its exhibits.
This Lease may not be modified except by a written instrument duly executed by
Landlord and Tenant.
H. Time is of the essence with respect to the provisions of
this Lease.
IN WITNESS WHEREOF, the parties hereto, by the properly authorized
persons have duly executed this Lease under seal the day and year first above
written.
WITNESS: 100 PAINTERS MILL, LLC
____________________________ BY: /s/ Xxxxxx X. Xxxxx (SEAL)
------------------------------------
Xxxxxx X. Xxxxx
WITNESS: SALES ON LINE DIRECT, INC.
____________________________ BY: /s/ Xxxx Xxxxxxx (SEAL)
------------------------------------
FIRST AMENDMENT TO LEASE AGREEMENT
THIS AGREEMENT, MADE THIS 31 day of December 1999 by and between 100
PAINTERS MILL, LLC and SALES ONLINE DIRECT, INC.;
WHEREAS, the parties hereto are parties to a certain Lease Agreement
dated July 26, 1999 for the premises described as 000 Xxxxxxxx Xxxx Xxxx; suite
400; Xxxxxx Xxxxx, XX 00000;
WHEREAS, the actual Commencement Date and Occupancy Date in said Lease
were not fixed therein or differs from as stated in said Lease; and
NOW, THEREFORE, for good and valuable consideration to each in hand
paid by the other, receipt whereof is hereby acknowledged, and for the promises
and covenants contained herein and in said Lease, the parties hereto do covenant
and agree as follows:
(1) The Occupancy date for the premises under said Lease Agreement is
November 1, 1999
(2) The Rent Commencement Date for the premises under said Lease
Agreement is January 1, 2000
(3) The Lease term for the premises under said Lease Agreement shall
run from January 1, 2000 to December 31, 2004
(4) The "Term" shall be amended to be five (5) years and two (2) months
beginning on the occupancy date
(5) Provided Tenant is not in default under the terms of this Lease,
Landlord shall xxxxx base rent only for the first two (2) months
Other than as set forth hereunder, there is no other change in the
Lease and said Lease remains in full force and effect except as modified herein.
WITNESS: 100 PAINTERS MILL, LLC
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
------------------------------ ---------------------------------------
Xxxxxx Xxxxx
WITNESS: SALES ONLINE DIRECT, INC.
/s/ By: /s/ Xxxx Xxxxxxx
------------------------------ ---------------------------------------
