AGREEMENT OF LEASE
Execution
Version
AGREEMENT
OF LEASE
THIS
AGREEMENT OF LEASE (this “Lease”),
made
this 12th
day of
September, 2008 (the “Effective
Date”),
by
and between XXXXXXXXXX PARTNERS, LLC, a Maryland limited liability company,
hereinafter referred to as “Landlord”;
and
NEW GENERATION BIOFUELS HOLDINGS, INC., a Florida corporation, hereinafter
referred to as “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:
ARTICLE
I
- The
Premises
Section
1.1. Demise.
Landlord is the owner of that that certain real property known as Lot 16 on
Block 7177 as shown on Tax Map 25, lying in Baltimore City, Maryland (the
“Parcel”);
the
Parcel a part of a larger tract of land owned by Landlord, which larger tract
is
described in Exhibit A-1 attached hereto and made a part hereof (the
“Landlord’s
Property”).
Landlord hereby leases to Tenant and Tenant rents from Landlord that certain
portion of the Parcel that is marked by cross-hatching on the attached Exhibit
A-2 to this Lease together with all buildings, improvements, tankage, pipes,
conduits, pipe racks and equipment currently located thereon (collectively,
the
“Premises”),
and
together with (i) pipes and conduits now or hereafter located on Landlord’s
Property to be exclusively used by Tenant (as outlined on Exhibit A-2, as from
time to time revised), including pipes and conduits to be constructed by Tenant
pursuant to the terms hereof, (ii) an easement for pipes and access from each
separate parcel that constitutes the Premises to the other parcel, (iii) an
easement for pipes and access from the Premises to the dock, railway and truck
receiving areas, (iv) an easement for pipes and access from the Premises to
the
dock, railway and truck loading areas (the areas subject to the easements in
the
foregoing (ii), (iii), and (iv) (the “Easement
Areas”)
and
(v) the right to the use in common with Landlord and other tenants on Landlord’s
Property of the roadways, the dock labeled as “Shared Dock Access” on Exhibit
A-2, rail tracks used by Tenant pursuant to the Terminaling Services Agreement
(as hereinafter defined), pipe racks, interconnections and other common areas
of
Landlord’s Property, for purpose of ingress and egress to and from the Premises,
including ingress and egress to said docks and rail tracks and to Aspen Street
and any other street that abuts Landlord’s Property. This Lease shall at all
times be subject to the operation and effect of any and all instruments and
matters of record, and matters not of record, which are listed on Exhibit B
attached hereto and made a part hereof. Landlord hereby represents and warrants
to Tenant that none of the instruments set forth on Exhibit B adversely affect
the use of the Premises by Tenant for operation of Tenant’s Business in any
material respect. The Premises is being leased in “AS IS” condition, subject
only to such covenants, representations and warranties concerning the Premises
as are set forth in this Lease. Landlord reserves the right to use, maintain,
repair and replace any pipes or conduits currently located on the Premises,
and
serving other parts of Landlord’s Property and to install, use, maintain, repair
and replace additional pipes through, under over and across the Premises and
serving other portions of Landlord’s Property, as long as the same does not
unreasonably interfere with Tenant’s use of the Premises or Tenant’s access
thereto.
Tenant
shall have the right to construct, refurbish, maintain any pipes in the Easement
Areas. At Tenant’s request, Landlord and Tenant shall attach to this Lease as
part of Exhibit A-2 an outline that shows the easement areas. Landlord shall
not
restrict, impair or otherwise affect Tenant’s use of the Easement Areas and
Tenant’s use of any pipes now or hereafter located in the Easement Areas shall
be exclusive.
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ARTICLE
II – Term;
Rent Commencement Date; Early Termination Option.
Section
2.1. Term;
Rent Commencement Date.
The
term (the “Initial
Term”)
of
this Lease shall commence on the Effective Date (the “Rent
Commencement Date”)
and
shall continue thereafter for a period that expires on the last day of the
fifth
Rental Year, subject to any right of renewal herein contained.
Section
2.2. Renewal
Options.
If
Tenant is not then in default in the performance of any of the terms and
conditions of this Lease, Tenant shall have an option to renew this Lease for
three (3) additional consecutive periods of five (5) Rental Years each (each,
a
“Renewal
Term”),
upon
the same terms and conditions set forth herein. The Initial Term, as extended
by
any Renewal Term, is referred to herein as the “Term.”
For
Tenant to validly exercise said renewal options, Tenant shall give written
notice to Landlord at least six (6) months prior to the expiration of the then
current Term, in which event the parties shall be bound for said renewal term
to
the same extent as if such renewal term were initially included in the Initial
Term.
Section
2.3. Early
Termination Option.
At
any
time during the Term, including during any Renewal Term, provided that Tenant
is
not then in default under the terms and conditions of this Lease, and does
not
commit any default through the date of termination, Tenant shall have the
absolute right to terminate this Lease, for any reason or for no reason, upon
delivery of not less than six (6) months prior written notice to Landlord (the
“Early
Termination Option”).
As a
condition to the effectiveness of Tenant’s exercise of the Early Termination
Option, Tenant shall pay to Landlord a termination fee (the “Early
Termination Fee”)
calculated by taking the monthly Base Rent due between the effective date of
termination and the end of the current term of the Lease (including any
previously exercised renewal option) and discounting the same to present value
using a 25% discount rate. The Early Termination Fee shall be paid together
with
the notice exercising the Early Termination Option. As a condition of the
effectiveness of the exercise of the Early Termination Option, Tenant shall
cause to be released any leasehold mortgage to which Tenant has subjected the
Premises or this Lease. Upon the proper exercise of the Early Termination
Option, the release of any existing leasehold mortgages encumbering this Lease
or the Premises and payment of any applicable Early Termination Fee, this Lease
shall terminate and the parties shall have no further rights or obligations
hereunder (except for those rights and obligations that expressly survive the
expiration or earlier termination of this Lease).
ARTICLE
III - Rents.
Section
3.1. Base
Rent.
Tenant
covenants and agrees to pay to Landlord, on the first day of each full calendar
month commencing October 1, 2008 (each a “Rent
Payment Date”)
monthly payments of Base Rent for the Premises in accordance with the schedule
below:
|
Months
1 – 6
|
$35,000
monthly
|
|
Months
7 v 12
|
$55,000
monthly
|
|
Months
13 – 24
|
$75,000
monthly
|
|
Months
24 – end of Term
|
As
provided in next paragraph.
|
On
the
Rent Commencement Date, Tenant shall pay rent for the period that begins on
the
Rent Commencement Date and ends on September 30, 2008 in the amount of
$17,500.
For
each
Rental Year (as defined in Section 3.2) after the second anniversary of the
Rent
Commencement Date, monthly Base Rent during the Term (including any Renewal
Term) shall be increased to an amount equal to the monthly Base Rent payable
during the then immediately preceding Rental Year increased by three percent
(3%). Rent shall be payable in equal monthly installments in advance on the
applicable Rent Payment Date, without demand therefor and without any set-off
or
deduction whatsoever.
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Section
3.2. Definition:
Rental Year.
The
first “Rental
Year”
of
this
Lease shall commence on the Rent Commencement Date and shall end on September
30, 2009; thereafter each Rental Year shall consist of periods of twelve (12)
full calendar months commencing with each anniversary of the Rent Commencement
Date.
Section
3.3. Additional
Rent.
Whenever, under the terms of this Lease, any sum of money is required to be
paid
by Tenant in addition to the rental 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,”
then
said sum shall, nevertheless, at Landlord’s option, if not paid when due, be
deemed Additional Rent, and shall be collectible as such.
Section
3.4. Taxes.
“Taxes”
shall mean (i) all taxes, assessments, and charges levied upon with respect
to
the Parcel; (ii) all general real estate property taxes and general and special
assessments, charges, fees, or assessments for transit, housing, police, fire,
or other governmental services or purported benefits to the Parcel, service
payments in lieu of taxes, levied with respect to the Parcel; (iii) other tax,
fee, or other excise, however described, that may be levied or assessed
as a
substitute for or as an addition to, in whole or in part, any other real estate
taxes, where they are not now customary or in the contemplation of the parties
on the date of the signing of this Lease; and (iv) any reasonable attorney’s
fees incurred by Landlord in appealing an assessment, provided, in no event
shall “Taxes” including any franchise or income or other taxes based on the
income of Landlord. During the initial and any renewal Terms, Tenant shall pay
to Landlord an amount equal to fifty percent (50%) of the increase in Taxes
over
the Taxes due for the Tax Year commencing July 1, 2008, which amount shall
be
due and payable thirty (30) days after a receipt of invoice from Landlord
accompanied by a copy of the applicable tax xxxx, provided that Tenant shall
be
responsible for one hundred percent (100%) of any increase in Taxes attributable
to improvements made by Tenant on the Premises and Landlord shall be responsible
for one hundred percent (100%) of any increase in Taxes attributable to
improvements made by Landlord or its other tenants on the remainder of the
Parcel. The assessor’s worksheet shall constitute prima facie evidence of the
attribution of the increase in Taxes. Tenant shall receive the benefit of any
discount applicable to the payment of Taxes as long as Tenant’s payment is
received by Landlord at least ten (10) days prior to the expiration of the
discount period. Landlord shall send to Tenant any notice of reassessment of
the
Property, and Tenant or Landlord shall have the right to appeal such assessment
with the cooperation of the other. Any appeal shall not relieve Tenant of its
obligation to pay its share of any increase in Taxes, but if such appeal is
successful, Tenant shall be entitled to that portion of any refund attributable
to Taxes it previously paid. With respect to the tax year in which this Lease
terminates, Taxes due hereunder shall be prorated based on the amount of time
of
the tax year falling within the term. Tenant shall pay the its pro rata share
of
any increase in Taxes for the current tax year within thirty (30) days after
receipt of invoice from Landlord. Landlord shall reimburse Tenant within
forty-five (45) days after the expiration of the term for any Taxes paid by
Tenant for the last tax year during the Term, based on the portion of that
tax
year falling after the expiration of this Lease. Tenant shall be responsible
for
and pay directly to the taxing authority any personal property taxes on any
personal property leased hereunder, including, without limitation, any storage
tanks located on the Premises, as well as on Tenant’s personal
property.
Section
3.5. Payment
of Rent.
Tenant
shall pay the Rent, in lawful currency of the United States of America, to
Landlord by delivering or mailing it (postage prepaid) to Landlord’s address
which is set forth hereinbelow, or to such other address or in such other manner
(which is commercially reasonable) as Landlord may from time to time specify
by
written notice to Tenant not less than thirty (30) days before any such payment
is due. In addition to all other remedies, Tenant shall pay a “late charge”
equal to three percent (3%) of any installment of Rent that is not is not
received by Landlord by the later to occur of (a) five (5) days after the
applicable Rent Payment Date and (b) three (3) days after Tenant receives
written notice from Landlord that such installment was not received when due,
such late payment to cover the extra expense incurred by Landlord as a result
of
a delinquent payment, provided that Landlord shall not be required to provide
the notice required in clause (b) after Landlord has provided two (2) such
notices in any twelve (12) month period. Any such late charge due and owing
shall be deemed Additional Rent. Any payment made by Tenant to Landlord on
account of Rent may be credited by Landlord to the payment of any Rent then
past
due before being credited to Rent currently falling due. Any such payment which
is less than the amount of Rent then due shall constitute a payment made on
account thereof, the parties hereto hereby agreeing that Landlord’s acceptance
of such payment (whether or not with or accompanied by an endorsement or
statement that such lesser amount or Landlord’s acceptance thereof constitutes
payment in full of the amount of Rent then due) shall not alter or impair
Landlord’s rights hereunder to be paid all of such amount then due, or in any
other respect.
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ARTICLE
IV – Terminalling
Services
Simultaneously
herewith, Tenant shall enter into a Terminaling Services Agreement with
Atlantic Terminalling, LLC (“Atlantic”),
the
exclusive provider of terminaling services on Landlord’s Property. A default by
Atlantic under the Terminaling Services Agreement shall constitute a default
by
Landlord under this Lease, and a default by Tenant under the terminaling
services agreement shall constitute a default by Tenant under this Lease. If
at
any time during the Term: (a) Atlantic fails or is unable for any reason
(including force majeure) to perform or provide the terminaling services for
Tenant as specified in the Terminaling Services Agreement, (b) such failure
causes Tenant to be unable to produce or deliver to its customers its biofuel
in
the ordinary course of its business, and (c) such failure continues for five
(5)
days after written notice from Tenant to Atlantic, then all Rent due under
this
Lease shall xxxxx until such time as Atlantic recommences performance of the
terminaling services. In the event that Atlantic defaults under the Terminalling
Services Agreement, which default continues beyond any applicable grace or
notice period (an “Atlantic TSA Default”), and after exercising Tenant’s right
of self-help under the Terminaling Services Agreement, despite Tenant’s
commercially reasonable efforts Tenant is unable to obtain substantially the
same level of rail service and marine service that were intended to be provided
under the Terminaling Services Agreement, then Tenant shall have the right
to
terminate this Lease upon notice to Landlord without the payment of the Early
Termination Fee, provided that after any Atlantic TSA Default in which the
the
Lease does not terminate as a result of the operation of this sentence, the
Base
Rent payable hereunder shall be reduced by $10,000 per month, effective as
of
the Atlantic TSA Default. Upon termination of the Terminaling Services Agreement
by Tenant following an Atlantic TSA Default, Tenant shall have the right to
perform the Terminaling Services (as defined in the Terminaling Services
Agreement) for its own account and Landlord shall provide, and shall cause
its
Affiliates to provide, such assistance as Tenant may request to enable Tenant
to
perform the Terminaling Services. The foregoing shall not limit any other
remedies that may be available to Tenant under the Terminaling Services
Agreement by virtue of a breach by Atlantic thereunder.
ARTICLE
V
– Security
Deposit
Within
five (5) days after the full execution and delivery hereof, Tenant shall deliver
to Landlord the sum of $75,000 (the “Security
Deposit”)
to be
held by Landlord as security for the performance by Tenant of all obligations
imposed on Tenant hereunder. Within forty-five (45) days after the expiration
or
earlier termination of this Lease, Landlord shall return the Security Deposit
to
Tenant, less any amount reasonably necessary to cure any default by Tenant
hereunder. Landlord shall be entitled to commingle the Security Deposit with
its
other assets. The Security Deposit shall not accrue interest. If Tenant shall
default in any obligation imposed on or accepted by Tenant hereunder, Landlord
shall be entitled to apply all or a portion of the Security Deposit towards
Landlord’s costs or damages incurred in remedying, or otherwise resulting from,
such default. If all or any part of the Security Deposit is applied to an
obligation of Tenant hereunder at any time during the Term, Landlord shall
have
the right to call upon Tenant to restore the Security Deposit to the amount
required hereunder by giving notice to Tenant, and Tenant shall restore such
deposit by payment thereof to Landlord within ten (10) days following receipt
of
Landlord’s notice. It is understood and agreed that should Landlord convey its
interest under this Lease to another party, said Security Deposit may be turned
over by Landlord to Landlord’s grantee or transferee, and upon Tenant’s receipt
of the written acknowledgement of such grantee or transferee that it is in
receipt of the Security Deposit, Tenant hereby releases the party herein named
as Landlord from any and all liability with respect to the Security Deposit,
or
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
each of such grantees and transferees as if they were the Landlord named herein.
In no event may Tenant apply the Security Deposit toward the last installment(s)
of rent or additional rent.
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ARTICLE
VI - Use
of
the Premises
Section
6.1. Permitted
Uses.
During
the Term, Tenant shall have the right to use and occupy the Premises for the
following purposes and none other, without Landlord’s written consent: offices,
storage of office and cleaning supplies and equipment, using, locating and
maintaining facilities for the operation of a storage, manufacturing and
logistics terminal for the production, storing, blending, processing,
distribution and transportation of raw materials and finished product associated
with its production of biofuels and for all lawful activities reasonably related
thereto (collectively, the “Tenant’s
Business”).
Tenant’s rights shall include the right, in accordance with Section 6.2 below,
to use, remove, renovate, reconfigure, recondition, replace, construct or alter
the improvements from time to time located on the Premises or to construct,
alter, remove, renovate, reconfigure, recondition, replace and make Tenant’s own
improvements or Alterations thereon, in each case subject to the terms and
conditions of this Lease. Tenant shall be solely responsible for complying
with
all laws applicable to its occupancy of the Premises, the conduct of Tenant’s
Business, and the making of any improvements or Alterations to any part of
the
Premises, except to the extent of any noncompliance of the Premises on the
date
hereof. Notwithstanding anything to the contrary herein contained, Tenant shall
not be permitted to use the Premises for the manufacture or storage for resale
of ethanol or for the processing and storage for resale of used motor
oil.
Section
6.2. Alterations.
The
removal, renovation, reconfiguration, replacement, construction or alteration
of
any improvements now or hereafter located on the Premises (or located on
Landlord’s Property which are to be used by Tenant) shall be referred to herein
each as an “Alteration”
and
together as “Alterations.”
Except
for Initial Alterations (defined below), Tenant shall not make any Alterations
without Landlord’s prior consent, which shall not be unreasonably withheld.
Attached hereto as Exhibit C is a list of Alterations that Tenant shall be
permitted to make (the “Initial
Alterations”).
Landlord may condition its consent on a review of final plans for the making
of
the Alteration; provided, however, Landlord’s review of plans of the Initial
Alterations (as defined below) shall be limited to confirming compliance with
Exhibit C. Landlord agrees to present any reasonable comments it may have to
any
such plans within ten (10) days after Tenant has presented such plans to
Landlord for its review. Tenant agrees to cooperate in good faith with Landlord
to incorporate Landlord’s reasonably requested changes into the plans. Tenant
shall be responsible for complying with all laws applicable to the making of
any
Alterations, and Landlord shall cooperate with Tenant in complying with such
duties as may be imposed on the exercise of rights that may be exercised solely
by Landlord (e.g., the making of building permit or other applications that
may
be made only by the owner of the Premises), provided that Tenant shall pay
Landlord’s reasonable costs in connection with such cooperation and shall
indemnify and hold harmless the Landlord from all claims relating to the making
of the Alterations, except to the extent any such claims arise out of Landlord’s
negligence or intentional misconduct.
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Section
6.3 Ownership
of Improvements.
All
improvements currently located on the Premises (the “Existing
Improvements”)
are
owned by Landlord and, subject to Tenant’s rights under Section 6.2 hereof to
make Alterations, will continue to be owned by Landlord. “Existing Improvements”
includes all structural Alterations made by Tenant thereto but does not include
trade fixtures and Tenant’s biofuel manufacturing machinery (“Tenant
Improvements”).
All
tanks, storage facilities and other improvements made or installed by Tenant
on
the Premises shall be owned by Tenant during the Term, shall become the property
of Landlord at the end of the Term or early termination of this Lease (if not
removed by Tenant pursuant to the next sentence) and may not be removed by
Tenant at the expiration or earlier termination of this Lease, except as
provided in the next sentence. Provided that Tenant is not then in default
under
the terms of conditions of this Lease, Tenant may remove the Tenant Improvements
(together with any other property of Tenant located on the Premises) at the
expiration or early termination of this Lease, provided,
that
(a)
Tenant shall be obligated to clear all debris associated with the removal of
same and to grade and fill holes and repair other damage to the Premises
resulting therefrom (which obligation shall survive the expiration or earlier
termination of this Lease), and (b) any Tenant Improvements that are not removed
by Tenant on or before the expiration or earlier termination of this Lease
shall
become Landlord’s property.
Section
6.4 Restrictions
on Use.
Landlord has provided Tenant true and complete copies of the mortgages or other
financing agreements affecting the Premises that are described on Exhibit “D”
attached hereto (the “Prior
Contracts”).
Landlord may, from time to time, by written notice to Tenant, update Exhibit
D
with mortgages or other financing agreements entered into subsequent to the
date
hereof, and provided that those items identified by Landlord do not impose
material additional obligations upon Tenant or materially impair or restrict
any
of the rights of Tenant hereunder, such items shall be deemed Prior Contracts.
Tenant agrees that Tenant shall not use, occupy, suffer or permit the Premises
or any part thereof to be used in any manner, or suffer or permit anything
to be
brought into or kept therein, which would (i) violate in any material respect
the provisions of the existing Prior Contracts, (ii) violate any law, statute,
ordinance, notice, order, rule, regulation or other requirement of any federal,
state or municipal government or the appropriate department, commission, board
or officer thereof, now or hereafter in force, which may be applicable to
Tenant’s Business or any Alteration, or (iii) violate in any material respect
any requirements of any insurance policy covering or applicable to any part
of
the Premises or the use thereof, any requirements of the issuer of any such
policy and any orders, rules, regulations, recommendations and other
requirements of the local board of fire underwriters or any other body
exercising the same or similar functions and having jurisdiction or cognizance
of any part of the Premises; provided,
that
(i) the foregoing shall not absolve Landlord of any obligation to comply with
the terms of any such Prior Contract or any such law or other requirement that
is binding on Landlord and not directly related to the Tenant’s Business or any
Alterations made by Tenant or (ii) shall not materially impair or restrict
any
of the rights of Tenant under this Lease.
Section
6.5. Maintenance
of Premises.
Tenant
covenants and agrees that it will (a) replace promptly, at its expense, any
cracked or broken plate or window glass of any building located on the Premises
used by Tenant with like kind and quality; (b) maintain the Premises at its
expense in a clean, orderly and sanitary condition and free of insects, rodents,
vermin and other pests; (c) keep any garbage, trash, rubbish or refuse in
suitable refuse containers and have such garbage, trash, rubbish and refuse
removed at its expense on a regular basis; (d) keep all walkways, driveways
and
parking areas used by Tenant on the Premises free and clear of snow and ice,
and
in good repair at Tenant’s expense; (e) use the sanitary sewer system in a
lawful and reasonable manner, and in no event cause blockage in the said
sanitary sewer system, either in or outside of the Premises or (f) not cause
or
permit any nuisance to be conducted on the Premises; provided the conduct of
the
uses permitted by this Lease on the Premises shall not be deemed a nuisance.
Tenant hereby covenants to keep all improvements, tanks and fixtures that it
is
using on the Premises, including all electrical, plumbing, and mechanical
installations and equipment used by Tenant, in good order including, when
necessary, the replacement of any said improvements, tanks, fixtures,
installation or equipment, or any part thereof, used exclusively by Tenant
and
located on the Premises, and to surrender the peaceful and quiet possession
of
the Premises at the end of said Term (or any renewal thereof) in the condition
required hereunder, except for ordinary wear of and tear, Alterations permitted
hereunder, and damage to the Premises by fire or other casualty; provided that
Tenant hereby covenants to keep all improvements, tanks and fixtures that it
is
not using on the Premises in no worse than their current condition, and to
surrender the peaceful and quiet possession of the Premises at the end of said
Term (or any renewal thereof) in the same condition as received, except for
ordinary wear of and tear, Alterations permitted hereunder, and damage to the
Premises by fire or other casualty. Tenant will repair promptly, at its own
expense, any damage to the Premises caused by bringing onto the Premises any
property or equipment for Tenant’s use, or by the installation, use or removal
of such property or equipment, regardless of fault or by whom such damage shall
be caused unless caused by Landlord, its officers, directors, agents, employees,
contractors or invitees. If Tenant should default in the performance of any
of
its obligations under this Section 6.5, Landlord shall be entitled (but shall
not be obligated), in addition to any other rights it may have in law or in
equity, and after fifteen (15) days’ advance written notice to Tenant, except in
the case of an emergency, to cure such default, and Tenant shall reimburse
Landlord for any sums paid or costs incurred by Landlord in curing such default,
which sums, costs and interest shall be deemed Additional Rent and shall be
payable by Tenant within ten (10) days of written demand therefor by Landlord
(which obligation to reimburse Landlord shall survive the expiration or earlier
termination of this Lease).
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Section
6.6. Hazardous
Materials; Indemnity.
Tenant
shall receive, handle, process, use dispose of and store all Hazardous Materials
brought upon, kept, or used in or about the Premises by Tenant or any Tenant
Parties in compliance with all Environmental Laws, and Tenant and Tenant Parties
shall only store or use on the Premises such Hazardous Materials as may be
necessary or useful to Tenant’s Business and only in such amounts as are
reasonably necessary and are received, stored, processed, used, disposed of
and
handled in compliance with the requirements of applicable Environmental Laws.
In
no event shall Tenant dispose of Hazardous Materials on Landlord’s Property or
in any body of water surrounding Landlord’s Property. Notwithstanding the
foregoing Landlord consents to the permits listed on Exhibit G attached hereto
and made a part hereof, and will not unreasonably withhold its consent to
similar permits related to air and water quality, and to the extent that
disposal of waste water or emission of air pursuant to such permits is deemed
disposal of Hazardous Materials, Landlord hereby consents to such disposal
as
long s the disposal is made in accordance with the terms of the permit and
Environmental Laws. If Tenant breaches the obligations stated in first two
sentences of this paragraph (subject to the foregoing sententce), or if Tenant
or a Tenant Party otherwise causes a Release (as defined below) of Hazardous
Materials (as defined below) on, in or under the Premises (collective a
“Tenant
Environmental Breach”),
then
Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, sums paid in settlement of claims, attorneys’
fees, consultant fees and expert fees) which arise during or after the Term
as a
result of such Tenant Environmental Breach (which obligation to defend,
indemnify and hold Landlord harmless shall survive the expiration or earlier
termination of this Lease). This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any Remediation (as
defined below) that Landlord shall be obligated by applicable Environmental
Law
to make in response to a Tenant Environmental Breach, including costs of any
investigations or reports necessary in connection with such Remediation. Without
limiting the foregoing, in response to a Tenant Environmental Breach, Tenant
shall promptly conduct all Remediation necessary to comply with applicable
Environmental Laws relating to Tenant Environmental Breach; provided that
Landlord’s approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld, conditioned or delayed; provided further
that if the Prior Contracts do not permit Tenant to undertake Remediation,
then
Landlord or the party specified in the Prior Contracts shall undertake the
Remediation and Tenant shall pay the reasonable costs and expenses of
Remediation. Tenant shall have no obligation under this Lease to perform any
Remediation that is not necessitated by a Tenant Environmental
Breach.
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Notwithstanding
any other provision in this Lease, Tenant shall have no obligation to Landlord
for (i) any Release of Hazardous Materials at, on, under or from the Landlord’s
Property or the Premises that is not caused by Tenant or any Tenant Party (which
shall be referred to herein as a “Landlord
Release”
whether
or not Landlord is the cause of such Release) or (ii) Landlord’s noncompliance
with Environmental Laws, (i) and (ii) collectively, “Landlord
Environmental Condition”.
Landlord shall indemnify, defend and hold Tenant and the Tenant Parties harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including, without limitation, sums paid in settlement
of
claims, attorneys’ fees, consultant fees and expert fees) which arise from and
after the Effective Date or during or after the Term as a result of a Landlord
Environmental Condition (which obligation to defend, indemnify and hold Tenant
or any Tenant Party harmless shall survive the expiration or earlier termination
of this Lease). This indemnification of Tenant by Landlord includes, without
limitation, costs incurred in connection with any Remediation that Tenant is
required to make under any Environmental Law or that is made by Tenant to
protect Tenant, any Tenant Party or the public from a bona fide threat to their
health or safety. Without limiting the foregoing, in response to a Landlord
Environmental Condition, Landlord shall promptly effect any Remediation
necessary to comply with applicable Environmental Laws or to respond to a bona
fide threat to the health or safety of Tenant, any Tenant Party or the public,
in each case relating to such Landlord Environmental Condition. In performing
any such Remediation, Landlord shall not impair Tenant’s ability to operate
Tenant’s Business. Tenant acknowledges that it has reviewed various
environmental reports provided by Landlord which are listed on Exhibit E
attached hereto, and that the Hazardous Materials identified through sampling
therein do not constitute a bona fide threat to the health or safety of Tenant,
any Tenant Party or the public Tenant further acknowledges that prior to the
Rent Commencement Date, it will inspect the improvements on the Premises, and
agrees that if it does not terminate the Lease pursuant to the provisions of
Section 2.3 (1), it shall manage during the Term the Hazardous Materials
described in clauses (iii) through (v) and (vii) of the next paragraph in
accordance with Environmental Laws but only to the extent such management
obligations result from disturbance of those materials by Tenant and except
for
the substation located on the Premises.
As
used
herein, the term “Hazardous
Material”
means
any hazardous or toxic substance, material or waste which is or becomes
regulated by any Environmental Law. The term “Hazardous Material” includes,
without limitation, any material or substance that is (i) defined as a
“hazardous substance”, “regulated substance”, “hazardous waste”, or similar term
under any Environmental Laws, (ii) petroleum or petroleum products (including,
without limitation, crude oil or any fraction thereof), (iii) asbestos or
asbestos-containing materials, (iv) toxic mold, (v) polychlorinated biphenyls
(PCBs), (vi) methyl-tertiary butyl ether (MTBE), (vii) lead-based paints, or
(viii) urea-formaldehyde foam insulation.
As
used
herein, the terms “Environmental
Law”
and
“Environmental
Laws”
refer
to any one or more foreign, federal, state and local statutes, laws, ordinances,
regulations, rules, resolutions, orders, determinations, writs, injunctions,
common law rulings, awards, judgments and decrees (including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act), relating to the Remediation, generation, production,
installation, use, storage, treatment, transportation, Release, threatened
Release, or disposal of Hazardous Materials or toxic substances, or noise
control, or the protection of human health, safety, natural resources, animal
health or welfare, or the environment.
As
used
herein, the term “Release”
means
any presence, emission, spill, seepage, leak, escape, leaching, discharge,
injection, pumping, pouring, emptying, dumping, disposal, migration, or release
of Hazardous Materials from any source into or upon the environment, including
the air, soil, improvements, surface water, groundwater, the sewer, septic
system, storm drain, publicly owned treatment works, or waste treatment,
storage, or disposal systems.
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As
used
herein, the term “Remediation”
means
any investigation, clean-up, disposal, removal action, remedial action,
restoration, abatement, repair, response action, corrective action, monitoring,
sampling and analysis, installation, reclamation, closure, or post-closure
in
connection with the suspected, threatened or actual Release of Hazardous
Materials.
Throughout
the Term (including any Renewal Term), Tenant, upon Landlord’s request and at
Tenant’s expense, shall obtain and deliver to Landlord an ESA conducted in
accordance with ASTM E 1527-05 or any then current industry accepted standards
or as otherwise may be required under the Prior Contracts with respect to the
Premises from an environmental professional reasonably acceptable to Landlord;
provided, however, that Landlord may request such ESA no more frequently than
once every twelve (12) months unless Landlord, in its reasonable opinion, has
reasonable grounds to believe that Hazardous Materials have been Released onto
the Premises by Tenant in violation of this Section 6.6. Additionally,
throughout the term, within thirty (30) days after the commencement of each
Rental Year, Tenant shall deliver to Landlord a list of all Hazardous Materials
then being handled or stored on the Premises. Tenant shall give written notice
to Landlord thirty (30) days prior to commencing handling or storage of any
Hazardous Materials not shown on the list submitted to Landlord at the beginning
of the Rental Year.
ARTICLE
VII - Insurance.
Section
7.1. Coverage
by Tenant.
Throughout the entire Term of this Lease, and any extension and renewals
thereof, and during any period of rent abatement or period of construction
within the Premises by Tenant or occupancy thereof by Tenant prior to the Rent
Commencement Date (except the insurance described in paragraph (1) below, which
shall be required only when Tenant moves personnel or equipment into the
buildings located on the Premises), Tenant, at its sole cost and expense, and
for the mutual benefit of Landlord and Tenant, shall carry and maintain the
following types of insurance in the amounts specified, with respect to the
Premises, the improvements thereon and Tenant’s activities thereon:
(1) Fire
and
extended coverage insurance, including riders for sprinkler damage, water
damage, vandalism and malicious mischief, covering all improvements on the
Premises being used by Tenant, Alterations, and trade fixtures, and insuring
against loss or damage by fire and against loss or damage by other risks now
or
hereafter embraced by “All Risk Replacement Cost” insurance, in amounts equal to
the full replacement cost thereof (exclusive of the costs of excavation or
foundations).
(2) Commercial
general liability insurance insuring Tenant, and naming Landlord (and at the
request of Landlord, Landlord’s mortgagee(s), if any) as additional insured(s),
against liability for injury to persons or property occurring in or about the
Premises or arising out of the ownership, maintenance, use or occupancy thereof
by Tenant or any Tenant Party, including, but not limited to coverage for
personal injury, bodily injury, broad form property damage, operations hazard,
owner’s protective coverage, automobile coverage for both owned and non-owned
vehicles, assumed or contractual liability, products and completed operations
liability, and contingent or protective liability. The liability limits under
such insurance shall not be less than $1,000,000.00 for each occurrence, with
respect to personal injury or death and not less than $500,000.00 for personal
property damage per occurrence. Landlord may increase the liability limits
hereunder if required under Prior Contracts or if it is commercially prudent
to
do so, provided that such liability limits may not be raised in excess of
$10,000,000.00.
(3) Worker’s
compensation insurance, as required by law, and Employer’s Liability insurance,
at statutory limits, which coverages shall, when appropriate, extend to cover
Tenant Parties on the Premises.
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(4) Environmental
and pollution clean-up and liability insurance, providing first-party clean-up
as a result of discovery of a pollution event affecting the Property or any
adjoining waterway, as well as coverage for third-party claims that are the
result of a pollution event on, at, under or coming from the Property, with
liability limits reasonably acceptable to Landlord, provided that in determining
the reasonableness of liability limits, Landlord shall take account of liability
limits acceptable under any governmental program in which Tenant participates
and industry standards.
(5) During
any period of substantial construction or renovation, builder’s risk insurance
with liability limits as set forth in clauses (i) and (ii) hereof with respect
to improvement being constructed or renovated.
(6) Rent
or
rental value insurance in an amount equal to the Base Rent and Additional Rent
due for the current Rental Year.
The
policies described in clauses (2) and (4) hereof shall name Landlord and its
mortgagee as additional insureds. The policies in clauses (1), (5) and (6)
shall
name Landlord, or at Landlord’s request, Landlord’s mortgagee, as loss payee, as
its interest may appear with respect to all structures on the Premises that
are
insured and all tanks, but not with respect to Tenant’s biofuel plant, equipment
and fixtures or Tenant’s other personal property. Subject to the terms of Prior
Contracts, Landlord agrees to make insurance proceeds available to Tenant for
purposes of repair and reconstruction.
Section
7.2. Coverage
by Landlord.
From
and after the Effective Date, Landlord, at its sole cost and expense, shall
carry and maintain the following types of insurance in the amounts specified,
with respect to the Landlord’s Property, the improvements thereon (excluding
Tenant Improvements or Alterations made by Tenant), and Landlord’s activities
thereon:
(1) Fire
and
extended coverage insurance, including riders for sprinkler damage, water
damage, vandalism and malicious mischief, covering those insurable facilities
located on Landlord’s Property that are being used by Tenant pursuant to the
terms hereof or the terms of the Terminalling Services Agreement against loss
or
damage by fire and against loss or damage by other risks now or hereafter
embraced by “All Risk Replacement Cost” insurance, in amounts equal to the full
replacement cost thereof (exclusive of the costs of excavation or
foundations).
(2) Commercial
general liability insurance insuring Landlord, against liability for injury
to
persons or property occurring in or about the Landlord’s Property (including any
portion of the Property used or occupied by Landlord or on which Landlord or
any
of its agents, employees, contractors or invitees are present) or arising out
of
the ownership, maintenance, use or occupancy thereof, including, but not limited
to coverage for personal injury, bodily injury, broad form property damage,
operations hazard, owner’s protective coverage, automobile coverage for both
owned and non-owned vehicles, assumed or contractual liability, products and
completed operations liability, and contingent or protective liability. The
liability limits under such insurance shall not be less than $1,000,000.00
for
each occurrence, with respect to personal injury or death and not less than
$500,000.00 for personal property damage per occurrence. Landlord shall increase
the liability limits to the extent the liability limits of Tenant’s insurance
are increased pursuant to the last sentence of Section 7.1(2).
(3) Worker’s
Compensation, as required by law, and Employer’s Liability insurance, at
statutory limits, which coverages shall, when appropriate, extend to cover
Landlord’s contractors and subcontractors.
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Section
7.3. Policy
Requirements.
All
policies shall be maintained with insurers licensed to write insurance in
Maryland and with a credit rating reasonably acceptable to Landlord and Tenant.
Each party agrees to provide the other party with certificates of insurance
evidencing the coverage required hereby, which shall be delivered prior to
the
Rent Commencement Date and thereafter as soon as practicable after the placing,
renewal or replacement of the required insurance. All policies shall contain
an
undertaking by the insurers to notify the insured party pursuant to this Article
VII , in writing, by registered mail, not less than thirty (30) days prior
to
any material change to, reduction in coverage under, cancellation or termination
of, or refusal to renew any such policy. All such policies shall be written
as
primary policies and not contributing with, or in excess of, any coverage which
the insured may carry. Subject to Section 7.5 herein, all public liability
and
property damage policies maintained by Tenant shall contain a provision that
the
additional insured parties, without regard to any partial or total exclusion
or
exception of such coverage for the primary insured party, shall be entitled
to
recover under said policies for any loss occasioned by such additional insured,
or by its employees, agents, customers, visitors, licensees or concessionaires,
by reason of the willful or negligent act or omission of the primary insured
party or its employees, agents, visitors, licensees, subtenants or
concessionaires.
Section
7.4. [Intentionally
Deleted]
Section
7.5. Mutual
Waiver of Subrogation.
Notwithstanding any other provisions of this Lease to the contrary, Landlord
and
Tenant hereby waive any right that each may have against the other on account
of
any loss or damage occasioned to its property arising from any risk generally
covered by fire and extended coverage insurance, together with insurance against
sprinkler damage, vandalism and malicious mischief, whether or not such a policy
shall be in force. The parties hereto also each, on behalf of their respective
insurance companies insuring the Premises of either Landlord or Tenant against
any such loss, waive any right of subrogation that such insurance company(ies)
may have against Landlord, said other parties, tenant or occupants, or Tenant,
as the case may be. If either Landlord or Tenant shall be unable, after using
best efforts, to obtain and/or maintain the waiver of subrogation set forth
in
the immediately preceding sentence from its insurance carrier(s) (or from any
other insurance carrier(s) without substantial increased cost) and shall so
notify the other party of such inability within thirty (30) days thereafter,
then the above mutual waiver of subrogation and mutual waiver of liability
shall
no longer be effective until the mutual waiver of subrogation is again
obtainable by both parties.
Section
7.6. Tenant’s
Contractors Insurance.
Tenant
shall require any contractor of Tenant or other Tenant Party performing work
on
the Premises to carry and maintain, at no expense to Landlord: (i) comprehensive
general liability insurance, including contractual liability coverage, completed
operations coverage, broad form property damage endorsement and contractor’s
protective liability coverage, to afford protection with limits, for each
occurrence, of not less than $1,000,000 with respect to personal injury or
death
and $500,000 with respect to property damage; and (ii) workmen’s compensation or
similar insurance in form and amounts required by law.
ARTICLE
VIII – Utilities
and Services
Section
8.1. Access
to Utilities.
Landlord shall provide for Tenant’s access to the utility services on the
Premises listed on Exhibit F attached hereto (the “Required Utility Services”)
and shall, at Landlord’s cost, make all Required Utility Services available to
the boundaries of the Premises. The dates by which such utilities shall be
delivered will be described in Exhibit F hereto. Tenant shall be responsible
for
installing (at Tenant’s sole cost and expense), and shall own, all utility
laterals, power lines and similar conducting facilities necessary to connect
Tenant’s facilities to such utility lines or facilities made available by
Landlord to the boundaries of the Premises. In addition, Tenant may, at its
own
expense, make alterations to such facilities located on the Premises to enable
Tenant to conduct Tenant’s Business. All such work shall be performed in
accordance with the other provisions of this Lease. Except as otherwise provided
herein, Tenant shall maintain in good condition and repair the mains, electrical
conduits, risers and other facilities used exclusively by Tenant in the Tenant’s
Business and located on the Premises providing water, electricity and other
utility services used by Tenant on the Premises. Landlord shall be responsible
for maintaining in good condition and repair all such facilities located outside
the boundaries of the Premises and serving the Premises. Landlord shall have
the
right at any reasonable time to enter upon the Premises for the purpose of
the
installation, repair or maintenance of utility and other common service lines,
pipes, conduits, ducts and chases.
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Section
8.2. Payment
of Utility Charges.
The
utilities serving the Premises shall be separately metered or submetered, at
Tenant’s expense prior to commencing Tenant’s Business on the Premises. Tenant
covenants and agrees to pay all charges promptly when due for all utility
services rendered or furnished to the Premises including, but not limited to
oil, steam, water (whether by meter or submeter), sewer service charge, gas
and
electricity (including any use taxes, levies or other charges on such
utilities). If Tenant shall fail to pay promptly when due any such charges,
Landlord, at its option, may pay the same for Tenant’s account, in which event
Tenant shall immediately reimburse Landlord therefor, as Additional Rent, upon
Landlord’s demand.
Section
8.3. Interruption.
Landlord shall not be liable to Tenant for any failure, modification or
interruption of any such service which (a) arises out of any causes beyond
Landlord’s reasonable control, (b) is required by applicable law (including, by
way of example rather than of limitation, any federal law or regulation relating
to the furnishing or consumption of energy or the temperature of buildings),
or
(c) is caused by accident or emergency not resulting from Landlord’s negligence
or willful misconduct. Landlord shall conduct maintenance and repairs of all
utility infrastructure for which Landlord is responsible hereunder at times
and
in a manner that will not interfere with the delivery of utility services to
Tenant.
ARTICLE
IX - Fire
and Other Casualties
Section
9.1. General.
If any
improvements on the Premises, which are being used by Tenant are damaged by
fire
and other casualty during the Term of this Lease (including any renewal term),
Tenant shall restore such improvements with reasonable promptness (taking into
account the time required by Landlord to effect a settlement with, and to
procure any insurance proceeds from, any insurer against such casualty) to
substantially its condition immediately before such casualty, and only to the
extent that insurance proceeds are available therefor. If the nature or extent
of any such fire or other casualty shall deprive Tenant of access to or the
use
of any or all of the Premises, the Base Rent and any Additional Rent payable
under the terms of this Lease shall be abated in proportion to the portion
of
the Premises rendered substantially inaccessible or unfit for use by such
casualty, but only to the extent that Landlord is receiving the proceeds of
the
rent or rental value insurance required to be maintained by Landlord under
Article VII hereof. If because of any such damage, the undamaged portion of
the
Premises is made materially inaccessible or unsuitable for use by Tenant for
the
purposes set forth in the provisions of Section 6.1, such Rent shall be abated
entirely during such period of deprivation, but only to the extent that Landlord
is receiving the proceeds of the rent or rental value insurance required to
be
maintained by Landlord under Article VII hereof.
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ARTICLE
X
- Condemnation
Section
10.1. Right
to Award.
If any
or all of the Property are taken by the exercise of any power of eminent domain
or are conveyed to or at the direction of any governmental entity under a threat
of any such taking (each of which is hereinafter referred to as a
“Condemnation”), Landlord shall be entitled to collect from the condemning
authority thereunder the entire amount of any award made in any such proceeding
or as consideration for such conveyance, without deduction therefrom for any
leasehold or other estate held by Tenant under this Lease. Tenant hereby (a)
assigns to Landlord all of Tenant's right, title and interest, if any, in and
to
any such award; (b) waives any right which it may otherwise have in connection
with such Condemnation, against Landlord or such condemning authority, to any
payment for (i) the value of the then-unexpired portion of the Term of this
Lease, (ii) leasehold damages with respect to any structure not constructed
or
improved to the extent of at least twenty-five percent (25%) of its value by
Tenant, and (iii) any damage to or diminution of the value of Tenant's leasehold
interest hereunder or any portion of the Property not covered by such
Condemnation; and (c) agrees to execute any and all further documents which
may
be required to facilitate Landlord's collection of any and all such awards.
Subject to the operation and effect of the foregoing provisions of this Section,
Tenant may seek, in a separate proceeding or in the same proceeding if required
by law or court rule, a separate award on account of any damages or costs
incurred by Tenant as a result of such Condemnation, so long as such separate
award in no way diminishes any award or payment which Landlord would otherwise
receive as a result of such Condemnation. Specifically, Tenant may seek an
award
with respect to any structures constructed by Tenant or improved by Tenant
to
the extent of at least twenty-five percent (25%) of their value, provided that
Tenant shall pay to Landlord a pro rata portion of any such award with respect
to any such improvements located on the Premises on the date hereof as
determined by a fraction, the numerator of which shall be the number of years
since the Rent Commencement Date and the denominator of which shall be the
total
possible term of this Lease, including the original and all renewal
terms.
Section
10.2. Effect
of Condemnation.
If the
Premises is covered by a Condemnation, in whole or in part, this Lease shall
terminate as to the part condemned on the date title or possession vests in
the
condemning authority, whichever is first. If (x) twenty-five percent (25%)
or
more of the Premises is covered by a Condemnation or (y) any portion of the
balance of Landlord’s Property is taken such that Tenant’s access to the
Premises is materially impaired or Tenant’s use of the Premises or its intended
use otherwise is materially impaired, then Tenant may elect, by written notice
to Landlord within thirty (30) days of the Condemnation, to terminate this
Lease, and upon such election, the Term shall terminate on earlier of the date
on which title or possession of so much of the Premises or Landlord’s Property,
as applicable, as is covered by such Condemnation is taken by the condemning
authority thereunder, and all Rent and other charges payable hereunder shall
be
apportioned and paid to such date. If there is a Condemnation and the Term
does
not terminate pursuant to the foregoing provisions of this Section, the
operation and effect of this Lease shall be unaffected by such Condemnation,
except that the Base Rent shall be reduced in proportion to the portion of
the
Premises covered by such Condemnation.
Section
10.3. Limitation
of Liability.
If
there is a Condemnation, Landlord shall have no liability to Tenant on account
of any (a) interruption of Tenant's business upon the Premises, (b) diminution
in Tenant's ability to use the Premises, or (c) other injury or damage sustained
by Tenant as a result of such Condemnation, provided the foregoing shall not
affect Tenant’s to terminate the Lease or a reduction of Base Rent pursuant to
Section 10.2 above.
Section
10.4. Conduct
of Proceedings.
Tenant
shall be entitled to participate in any condemnation proceedings with respect
to
the foregoing.
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ARTICLE
XI – Common
Areas; Common Area Charges
11.1. Common
Areas.
All
driveways, entrances and exits thereto, truck way or ways, terminalling
facilities, docks, landscaped areas, and other areas and improvements provided
by Landlord on Landlord’s Property for the general use, in common, of tenants,
their officers, agents, employees, and customers (herein referred to as the
"Common Areas"), shall be maintained by Landlord and shall at all times be
subject to the exclusive control and management of Landlord, and Landlord shall
have the right from time to time to establish, modify and enforce reasonable
rules and regulations with respect to all facilities and areas mentioned in
this
Section, so long as such rules and regulations are uniformly enforced and do
not
materially affect the rights of Tenant hereunder. Landlord shall have the right
(but not the obligation) to do one or more or all of the following: to
construct, maintain and operate lighting facilities on all said areas and
improvements; to police the same; from time to time to change the area, location
and arrangement of the facilities hereinabove referred to; to restrict, to
close
all or any portion of said areas or facilities to such extent as may, in the
opinion of counsel of Landlord be legally sufficient to prevent a dedication
thereof or the accrual of any rights to any person or the public therein; and
to
do and perform such other acts in and to said areas and improvements as, in
the
use of business judgment, Landlord shall determine to be advisable with a view
to the improvement of the convenience and use thereof by tenants, their
officers, agents, employees and customers. Without limiting the scope of such
discretion, Landlord shall have the full right and authority to employ all
personnel and to make all reasonable rules and regulations pertaining to and
necessary for the proper operation and maintenance of the Common
Areas.
11.2. Definition:
Annual Operating Costs.
The
term "Common Area Costs" or “CAC” means the actual costs incurred by Landlord in
operating and maintaining the Common Areas during each calendar year of the
term. Such costs shall include, by way of example rather than of limitation,
(i)
charges or fees for, and taxes on, the furnishing of water, sewer service,
gas,
fuel, electricity or other utility services to the Common Areas; (ii) costs
of
maintaining, repairing or replacing grounds and Common Areas; (iii) premiums
for
hazard, liability, or similar insurance upon any or all of the Common Areas;
(iv) costs of security personnel if deemed necessary by Landlord, (v) costs
of
any services not provided by Landlord to the Common Areas on the date hereof
but
hereafter provided by Landlord in its prudent management of the Common Areas;
(vi) the cost of any other items which, under generally accepted accounting
principles consistently applied from year to year with respect to the Common
Areas, constitute operating, repair or maintenance costs attributable to any
or
all of the Common Areas; and (vii) the cost of any capital expenditures
(amortized over the useful life of such capital expenditures). Such costs shall
not include the expense of principal and interest payments made by Landlord
pursuant to the provisions of any mortgage or deed of trust covering the
Property.
11.3. Definition:
Tenant's Proportionate Share.
Tenant's Proportionate Share shall be 40% of Common Areas Costs attributable
to
the Parcel (it being understood that any costs attributable to the maintenance
of Common Areas located on Landlord’s Property exclusive of the Parcel shall be
the sole responsibility of Landlord).
11.4. Payment
of CAC.
For
each calendar year or portion thereof during the term of this Lease or any
renewal term, Tenant shall pay to Landlord, as Additional Rent, an amount equal
to Tenant's Proportionate Share of CAC (“Tenant’s CAC Share”). One month prior
to the beginning of each calendar year during the term of this Lease commencing,
or any renewal term hereof, commencing with calendar year 2009, Landlord shall
prepare and submit to Tenant an estimate of Tenant's CAC Share for the next
succeeding calendar year, which estimate shall become Tenant's CAC Share for
the
said year. For calendar year 2008, Tenant’s CAC Share shall be $5,000 per month.
Tenant's CAC Share shall be payable in equal monthly installments due on or
before the first day of each month, without demand therefor, and without setoff
or deduction of any nature. Landlord's failure to timely prepare the estimate
or
the Year End Accounting shall not relieve Tenant of its obligations under this
Article XI, and Tenant shall continue to make monthly payments as provided
based
on the last estimate prepared by Landlord until such time as Landlord prepares
a
new estimate.
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11.5. End
of
Year Accounting.
Within
one hundred eighty (180) days after the end of the calendar year, Landlord
shall
provide Tenant an accounting, showing in reasonable detail, the amount actually
expended by Landlord as CAC for said calendar year (the "Year-End Accounting").
In the event that the amount paid by Tenant as Tenant’s CAC Share for the
calendar year exceeds the amount of Tenant's CAC Share pursuant to the Year-End
Accounting, then such excess payments shall be credited against the next monthly
payment or payments due under Section 4.3 hereof. In the event that the amount
paid by Tenant as Tenant’s CAC Share for the calendar year is less than the
amount of Tenant's CAC Share pursuant to the Year-End Accounting, then Tenant
shall pay the balance due to Landlord within thirty (30) days of Tenant's
receipt of the Year-End Accounting.
11.6 Tenant’s
Right to Audit.
At any
time within ninety (90) days of Landlord’s delivery of the Year-End Accounting
(but not more than once per year), either a certified public accounting firm
retained by Tenant or a qualified employee of Tenant (such parties being
collectively referred to herein as an “Auditor”) may, upon at least five (5)
days prior written notice, inspect Landlord’s records pertaining to such CAC
assessed by Landlord as set forth in such Landlord’s statement. Landlord or its
agents shall produce said records at Landlord’s offices within ten (10) days’ of
Landlord’s receipt of the written request of Tenant. If Tenant’s audit shall
disclose an overbilling by Landlord (and commensurate overpayment by Tenant)
of
the amount actually owed for such period, Landlord shall promptly credit the
amount of such overpayment against Tenant’s next due installment of CAC. In the
event the overpayment is more than ten percent (10%) of the amount due, Landlord
shall reimburse Tenant for the cost of the audit if the audit was conducted
by a
third party (and not by an employee of Tenant).
ARTICLE
XII - Assignment
and Subletting.
Section
12.1. Conditions.
Except
as provided in Article XIII, Tenant shall not assign, transfer, mortgage,
hypothecate or otherwise encumber this Lease 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 (each
an
“Assignment”),
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Landlord may condition its
consent on the financial ability of any proposed assignee to perform its
obligations under this Lease. Any consent by Landlord to an assignment or
subletting hereunder shall not constitute a waiver of the necessity of obtaining
such consent as to any subsequent assignment or subletting, nor, except as
expressly provided herein, shall it relieve Tenant of liability under this
Lease. An consent given by Landlord pursuant to the terms of this Article XII
shall be expressly subject to each and every term, covenant and condition of
this Lease, unless otherwise specifically provided herein. Notwithstanding
anything to the contrary in this Section 12.1, Tenant may, without Landlord’s
consent (but upon prior written notice to Landlord), (i) assign this Lease
to
any affiliate of Tenant and (ii) assign this Lease to a party who acquires
all
or substantially all of Tenant’s assets as long as such party at the time of
assignment has a net worth at least equal to the net worth of Tenant as of
the
date of this Lease or is otherwise, in the reasonable judgment of Landlord,
financially capable of performing the obligations of Tenant hereunder. Following
an assignment pursuant to clause (ii) of the foregoing sentence, Tenant shall
be
relieved of all liability arising under this Lease from and after the effective
date of the assignment. For purposes hereof, an Assignment shall include the
transfer, assignment or hypothecation of any stock or equity interest in Tenant,
which results in a change in the control thereof by the person, persons or
entities owning a controlling interest therein as of the date of this Lease,
except the foregoing shall not apply to transfers of securities of Tenant as
a
result of trades on nationally recognized securities exchanges.
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ARTICLE
XIII – Leasehold
Mortgages; Subordination of Lien
Tenant
shall have the right to grant a mortgage, deed of trust or similar security
interest encumbering its leasehold right, title and interest in the Premises
as
more specifically described in this Lease (a “Mortgage”)
to a
party unrelated to Tenant, who is providing commercial financing to Tenant
(a
“Leasehold
Mortgagee”).
Upon
granting a Mortgage, such Leasehold Mortgagee, shall, for so long as its
Mortgage is in existence and until the lien thereof has been extinguished,
be
entitled to the following protection, upon delivery to Landlord of the Leasehold
Mortgagee’s contact information, including its name and address:
Section
13.1 Limited
to Leasehold Estate.
A
Leasehold Mortgagee shall have an interest in the Premises to the extent of
Tenant’s rights under this Lease (the “Leasehold
Estate”).
Landlord is not hereby subordinating its fee simple interest in the Premises
to
the Leasehold Mortgage. There may not be more than one (1) Leasehold Mortgage
at
any time without the prior consent of Landlord.
Section
13.2. Right
to Possession, Right to Acquire and Right to Assign.
A
Leasehold
Mortgagee shall have the absolute right, without any consent of Landlord being
required: (a) to assign its security interest; (b) to enforce its lien and
acquire title to the Leasehold Estate by any lawful means (subject to the
provisions hereof); (c) to take possession of and operate the Property or any
portion thereof and to perform all obligations to be performed by Tenant
hereunder, pursuant to its agreements with Tenant, applicable law, or both;
and
(d) to acquire the Leasehold Estate by foreclosure or other legal proceedings
or
remedy (whether judicial or non-judicial) and thereafter to assign or transfer
the Leasehold Estate to a third party. Any such third party may subsequently
assign or transfer the Leasehold Estate subject to the provisions of Article
XII
hereof.
Section
13.3. Notice
of Default; Opportunity to Cure.
As
a
precondition to exercising any rights or remedies as a result of any alleged
default by Tenant, Landlord shall provide written notice of the default to
each
Leasehold Mortgagee concurrently with delivery of such notice to Tenant, as
applicable, specifying in detail the alleged event of default and the required
remedy. In the event the Landlord gives such written notice of default, the
following provisions shall apply:
(1) a
“monetary
default”
means
failure to pay when due any monetary obligation of Tenant under this Lease
or
any default that can be cured by the payment of money; any other event of
default is a “non-monetary
default.”
(2) The
Leasehold Mortgagee shall have the same period after receipt of notice of
default to remedy the default, or cause the same to be remedied, as is given
to
Tenant
and
any
of its successors and assigns after Tenant’s
receipt of notice of default, plus, in each instance, the following additional
time periods: (i) thirty (30) days in the event of any monetary default; and
(ii) thirty (30) days in the event of any non-monetary default, provided that
such thirty (30) day period shall be extended for the time reasonably required
to complete such cure, including the time required for the Leasehold Mortgagee
to perfect its right to cure such non-monetary default by obtaining possession
of the Property (including possession by a receiver) or by instituting
foreclosure proceedings, provided the Leasehold Mortgagee acts with reasonable
and continuous diligence. The Leasehold Mortgagee shall have the absolute right
to substitute itself for Tenant
and
perform the duties of Tenant
hereunder
for purposes of curing such defaults. Landlord expressly consents to such
substitution, agrees to accept such performance, and authorizes the Leasehold
Mortgagee (or its employees, agents, representatives or contractors) to enter
upon the Property to complete such performance with all the rights, privileges
and obligations of Tenant
hereunder.
Landlord shall not terminate this Lease prior to expiration of the cure periods
available to a Leasehold Mortgagee as set forth above.
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(3)
During
any period of possession of the Property or the leasehold estate created hereby
by a Leasehold Mortgagee (or a receiver requested by such Leasehold Mortgagee)
and/or during the pendency of any foreclosure proceedings instituted by a
Leasehold Mortgagee, the Leasehold Mortgagee shall pay or cause to be paid
the
rent and all other monetary charges payable by Tenant hereunder which have
accrued and are unpaid at the commencement of said period and those which accrue
thereafter during said period. Following acquisition of Tenant’s leasehold
estate by the Leasehold Mortgagee or its assignee or designee as a result of
either foreclosure or other remedy, or by a purchaser at a foreclosure sale,
this Lease shall continue in full force and effect and the Leasehold Mortgagee
or party acquiring title to the Leasehold Estate shall, as promptly as
reasonably possible, commence the cure of all defaults hereunder and thereafter
diligently process such cure to completion, whereupon Landlord’s right to
terminate this Lease based upon such defaults shall be deemed waived (provided,
however, that Leasehold Mortgagee or party acquiring title to the Leasehold
Estate shall not be required to cure any non-monetary defaults that are not
reasonably susceptible of being cured or performed by such party (“non-curable
defaults”).
Non-curable defaults shall be deemed waived by Landlord upon completion of
foreclosure proceedings or acquisition of the Leasehold Estate by such
party.
(4) Any
Leasehold Mortgagee or other party who acquires Tenant’s Leasehold Estate
pursuant to foreclosure or other remedy shall not be liable to perform the
obligations imposed on Tenant by this Lease incurred or accruing after such
party no longer has title of the Leasehold Estate or possession of the
Property.
(5) Neither
bankruptcy nor insolvency shall be grounds for terminating this Lease as long
as
all provisions of the agreement are in compliance and the Rent and all other
monetary charges payable to Landlord hereunder are paid by the Leasehold
Mortgagee in accordance with the terms of this Lease.
(6)
Nothing
herein shall be construed to extend the Lease beyond the Term or to require
a
Leasehold Mortgagee to continue foreclosure proceedings after the default by
Tenant under the Mortgage has been cured. If the default is cured and the
Leasehold Mortgagee discontinues foreclosure proceedings, the Lease shall
continue in full force and effect.
Section
13.4. New
Lease.
If this
Lease terminates because of Tenant’s default or if the Leasehold Estate is
foreclosed, or if this Lease is rejected or disaffirmed pursuant to bankruptcy
law or other law affecting creditors’ rights, the Landlord shall, upon written
request from any Leasehold Mortgagee within sixty (60) days after any such
event, enter into a new agreement concerning the Property, on the following
terms and conditions:
(1) The
terms
of the new agreement shall commence on the date of termination, foreclosure,
rejection or disaffirmance and shall continue for the remainder of the term
of
this Lease, at the same rent and subject to the same terms and conditions set
forth in this Lease. Such new agreement shall be subject to all existing
subleases, provided the subtenants are not then in default.
(2) The
new
agreement shall be executed within thirty (30) days after receipt by Landlord
of
written notice of the Leasehold Mortgagee’s election to enter a new agreement,
provided said Leasehold Mortgagee: (i) pays to Landlord all rent and other
monetary charges payable by Tenant its successors or assigns, as applicable,
under the terms of this Lease up to the date of execution of the new agreement,
as if this Lease had not been terminated, foreclosed, rejected or disaffirmed,
less the rent and other income actually collected by Landlord from subtenants
or
other occupants of the Property; (ii) performs all other obligations of Tenant
under the terms of this Lease, to the extent performance is then due and
susceptible of being cured and performed by the Leasehold Mortgagee; and (iii)
agrees in writing to perform, or cause to be performed, all non-monetary
obligations which have not been performed by Tenant and would have accrued
under
this Lease up to the date of commencement of the new agreement, except those
obligations which constitute non-curable defaults. Any new agreement with the
Leasehold Mortgagee shall enjoy the same priority as this Lease over any lien,
encumbrance or other interest created by Landlord.
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(3) After
the
termination, rejection or disaffirmance of this Lease and during the period
thereafter during which any Leasehold Mortgagee shall be entitled to
enter
into a new agreement concerning the Property, Landlord will not terminate any
sublease
or the rights of any sublease thereunder unless such sublease shall be in
default under such sublease. During such period, if the Landlord shall
receive
any rent and other payments
due from subleases, including subleases whose attornment it shall have agreed
to
accept, it will do so as agent of such Leasehold Mortgagee and shall deposit
such rents and
payments in a separate and segregated account in trust subject to a right of
setoff against amounts due to Landlord; and, upon the execution and delivery
of
such new agreement,
shall account to the Tenant under said new agreement for the rent and other
payments
made under said subleases; and the Tenant shall thereupon assign the rent and
other
payments due under said subleases to any Leasehold Mortgagees under the
Agreement.
The collection of rent by the Landlord acting as an agent pursuant to this
Section
shall not be deemed an acceptance by Landlord for its own account of the
attornment
of any sublease unless Landlord shall have agreed in writing with such sublease
that
its
tenancy shall be continued following the expiration of any period during which
a
Leasehold
Mortgagee may be granted a new agreement, in
which
case such attornment shall take place upon such expiration but not before.
Landlord shall not be under any obligation to enforce any sublease.
(4) If
Landlord has consented to additional Mortgages and more than one Leasehold
Mortgagee makes a written request for a new agreement pursuant hereto, the
new
agreement shall be delivered to the Leasehold Mortgagee requesting such new
agreement whose Mortgage is prior in lien, and the written request of any other
Mortgagee whose lien is subordinate shall be void and of no further force and
effect. At no expense to Landlord, a Leasehold Mortgagee shall provide a current
title report on the Property to Landlord reflecting the priority of the lien
of
such Leasehold Mortgagee.
(5)
The
provisions of this Section 13.4 shall survive the termination, rejection or
dissaffirmance of this Lease and shall continue in full force and effect
thereafter to the same extent as if this section were a separate and independent
contract made by Landlord, Tenant and such Leasehold Mortgagee, and, from the
effective date of such termination, rejection or disaffirmance of the Agreement
to the date of execution and delivery of such new agreement, such Leasehold
Mortgagee may use and enjoy said Leased Premises without hindrance by Landlord
or any person claiming by, through or under Landlord; provided that all of
the
conditions for a new agreement as set forth herein are complied
with.
Section
13.5 Leasehold
Mortgagee’s Consent to Amendment, Termination or Surrender.
Notwithstanding
any provision of the Agreement to the contrary, the parties agree that so long
as there exists an unpaid Leasehold Mortgage, this Lease shall not be modified
or amended and Landlord shall not accept a surrender of the Property or any
part
thereof or a cancellation or release of this Lease from Tenant prior to
expiration of the term without the prior written consent of the Leasehold
Mortgagee. This provision is for the express benefit of and shall be enforceable
by such Leasehold Mortgagee.
Section
13.6 No
Waiver.
No
payment made to Landlord by a Leasehold Mortgagee shall constitute an agreement
that such payment was, in fact, due under the terms of this Lease; and a
Leasehold Mortgagee having made any payment to Landlord pursuant to Landlord’s
wrongful, improper or mistaken notice or demand shall be entitled to the return
of any such payment.
Section
13.7 No
Merger.
There
shall be no merger of this Lease with the fee estate in the Property by reason
of the fact that this Lease or any interest therein may be held, directly or
indirectly, by or for the account of any person or persons who shall own the
fee
estate or any interest therein, and no such merger shall occur unless and until
all persons at the time having an interest in the fee estate in the Premises
and
all persons (including Leasehold Mortgagee) having an interest in this Lease
or
in the estate of Landlord and Tenant shall join in a written instrument
effecting such merger and shall duly record the same.
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Section
13.8 Further
Amendments.
At
Tenant’s request, Landlord shall amend this Lease to include any provision which
may reasonably be requested by a current or proposed Leasehold Mortgagee;
provided, however, that such amendment does not impair any of Landlord’s rights
under this Lease, or materially increase the burdens or obligations of Landlord
hereunder, or decrease the burdens or obligations of Tenant or assignee. Upon
the request of any Leasehold Mortgagee, Landlord shall execute any additional
instruments reasonably required to evidence such Leasehold Mortgagee’s rights
under this Lease.
Section
13.9 Subordination
of Lien.
Landlord hereby subordinates any lien (contractual, statutory or otherwise)
which Landlord may have or claim upon Tenant's chattels, movable and nonmovable
fixtures, furniture, equipment, machinery, inventory and any other property
now
or hereafter located at the Premises to the lien of any commercial financing
of
Tenant. In the event Landlord shall take possession of the Premises for any
reason, Landlord shall so notify Tenant’s lender and shall permit Tenant’s
lender to remove such property therefrom. Landlord agrees to sign any forms
required by Tenant's lenders acknowledging Landlord's subordination and such
lenders' rights.
ARTICLE
XIV – Liens
on Landlord’s Property
Section
14.1. Liens
Upon Landlord’s Property.
No work
performed by Tenant pursuant to this Lease, whether in the nature of erection,
construction, alteration or repair, shall be deemed to be for the immediate
use
and benefit of Landlord, and no mechanics or other lien shall be allowed against
the estate of Landlord by reason of any consent given by Landlord to Tenant
to
improve, alter or repair the Premises. Tenant shall pay promptly all persons
furnishing labor and/or materials with respect to any work performed by Tenant
or its contractor on or about the Premises. In the event any mechanic’s or other
lien shall at any time be filed against the Premises by reason of work, labor,
services or materials performed or furnished, or alleged to have been performed
or furnished, to Tenant or to anyone holding the Premises through or under
Tenant, Tenant shall forthwith cause the same to be discharged of record or
bonded to the satisfaction of Landlord. If Tenant shall fail to cause such
lien
to be so discharged or bonded within fifteen (15) days after being notified
of
the filing thereof, then, in addition to any other right or remedy of Landlord,
Landlord may bond or discharge the same by paying the amount claimed to be
due,
and the amount so paid by Landlord including reasonable attorney’s fees incurred
by Landlord either in defending against such lien or in procuring the bonding
or
discharge of such lien, shall be due and payable by Tenant to Landlord as
Additional Rent. The obligations of Tenant under this Section 14.1 shall survive
the termination or earlier expiration of this Lease.
ARTICLE
XV – Subordination,
Non-Disturbance and Attornment.
Section
15.1. Subordination.
Subject
to Section 15.2 hereof, Tenant's rights under this Lease are, and shall always
be subordinate to the operation and effect of any mortgage or deed of trust
or
any other instrument of financing now or hereafter placed upon the Property,
or
any part thereof, by Landlord, or any renewal, modification, consolidation,
replacement or extension of any such instrument (hereinafter collectively
referred to as “Financing Instrument”). The foregoing sentence shall not be
operative if the holder of the Financing Instrument elects to have Tenant's
interest hereunder superior to the interest of the holder of such Financing
Instrument. Subject to Section 15.2 hereof, this provision shall be
self-operative and no further instrument of subordination shall be necessary,
but Tenant shall execute promptly any instrument of subordination that Landlord
may request.
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Section
15.2 Non-Disturbance.
Not
later than fifteen (15) days after the date hereof, Landlord shall obtain in
favor of Tenant, a non-disturbance agreement reasonably acceptable to Tenant
from each and every existing holder or beneficiary of a Financing Instrument
and
shall obtain a non-disturbance agreement from any future superior ground lessee,
mortgagee, and deed of trust beneficiary (each a “Superior
Lienholder”),
which
non-disturbance agreement shall state that Tenant’s right to quiet possession of
the Premises shall not be disturbed if Tenant so long as Tenant shall pay the
rent and observe and perform in all material respects its obligations under
this
Lease (an “SNDA”).
Notwithstanding anything to the contrary in this Article XV, any subordination
of this Lease to a future Financing Instrument shall be conditioned upon
Landlord’s delivery to Tenant of an SNDA from the Superior Lien Holder. In the
event that Landlord fails to deliver to Tenant an SNDA from the holder of any
existing Financing Instrument within said 15-day period, Tenant shall be
entitled to terminate this Lease upon notice to Landlord and without the payment
of any Early Termination Fee.
Section
15.2. Attornment.
Tenant
agrees that upon the sale or the placing of a mortgage on the Landlord’s
Property or upon foreclosure or sale under a Financing Instrument to which
this
Lease is now or shall thereafter become subject and subordinate, this Lease
shall remain in full force and effect and Tenant will attorn to the mortgagee
or
purchaser upon foreclosure, will pay to said mortgagee or purchaser all the
rents and other monies required to be paid by Tenant hereunder and perform
all
of the other terms, covenants, conditions and obligations in this Lease
contained as if said mortgagee or purchaser was the original Landlord
herein.
ARTICLE
XVI - Right
of Entry
Section
16.1. Right
of Entry.
Landlord or Landlord’s agents shall have the right to enter the Premises at all
reasonable times and upon not less than three (3) days’ prior notice to Tenant
to examine the same, and to show to prospective purchasers, mortgagees, or
(in
the last twelve (12) months of the Term or after the receipt from Tenant` of
an
early termination notice pursuant to Section 2.3 of this Lease) prospective
lessees of the Premises, and to make such inspections, repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable at
reasonable times and on reasonable advance notice to Tenant (except in the
case
of emergencies, in which case such notice shall be given as soon a reasonably
practicable). If Tenant shall not be personally present to open and permit
an
entry onto said Premises, at any time, when for any reason an entry therein
shall be immediately necessary or permissible as a result of an emergency,
Landlord or Landlord’s agents may enter the same by a master key, or may
forcibly enter the same, without rendering Landlord or such agents liable
therefor, and without in any manner affecting the obligations and covenants
of
this Lease. Landlord shall be liable to Tenant and shall indemnify Tenant
against any damage or injury Landlord’s negligence or willful misconduct in
connection with any such entry. Absent an emergency, Tenant shall have the
right
to accompany Landlord or its representatives during any such entry. In entering
the Premises for any such purpose, Landlord shall minimize any disruption to
Tenant’s operations. Nothing herein contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever, for the care, maintenance or repair of the Premises or any part
thereof, except as otherwise herein specifically provided.
ARTICLE
XVII - Non-Liability
and Indemnification.
Section
17.1. Non-Liability.
Neither
Landlord nor Landlord’s agents, officers, directors, shareholders, partners,
members or principals shall be liable to Tenant or Tenant’s agents, employees,
contractors, invitees or licensees or any other occupants of the Premises,
and
Tenant shall save Landlord and Landlord’s agents, and their respective agents,
employees, contractors, officers, directors, shareholders, partners, members
and
principals harmless from any loss, cost liability, claim, damage, expense
(including reasonable attorneys’ fees and disbursements), penalty or fine
incurred in connection with or any damage to, or loss (by theft or otherwise)
of, any of Tenant’s property or caused by operations in construction of any
private, public or quasi-public work except to the extent due to the negligence
or willful misconduct of Landlord or Landlord’s agents employees, contractors,
invitees or licensees, without contributory negligence on the part of Tenant,
its employees, agents, contractors, invitees or licensees. Landlord and
Landlord’s agents shall not be liable, to the extent of Tenant’s insurance
coverage, for any loss or damage to any person or property even if due to the
negligence of Landlord or Landlord’s agents.
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Section
17.2. Tenant’s
Indemnification.
Tenant
hereby indemnifies Landlord and Landlord’s agents against liability in
connection with or arising from (i) the use or occupancy or manner of use or
occupancy of the Premises by Tenant or any person claiming through or under
Tenant during the Term, or (ii) any negligent or intentionally tortious acts
or
omissions of Tenant or any such person, or the contractors, agents, employees,
invitees or licensees of Tenant or any such person, in or about the Premises
either prior to, during or after the expiration of, the Term (including any
renewal term) or (iii) any loss or damage arising from the failure of Tenant
to
perform any non-monetary obligation of Tenant hereunder beyond the expiration
of
any applicable cure period. If any action or proceeding shall be brought against
Landlord or Landlord’s agents, based upon any such claim, Tenant additionally
shall indemnify Landlord or Landlord’s agents for reasonable attorneys’ fees and
disbursements in connection with such action or proceeding in which Landlord
shall prevail. Tenant shall pay to Landlord as Additional Rent, within fifteen
(15) days following rendition by Landlord to Tenant of bills or statements
therefor, sums equal to all losses, costs, liabilities, claims, damages, fines,
penalties and expenses referred to herein.
Section
17.3. Landlord’s
Indemnification.
Landlord hereby indemnifies Tenant and Tenant’s agents against liability in
connection with or arising from (i) the use or occupancy or manner of use or
occupancy of Landlord’s Property by Landlord or any person claiming through or
under Landlord, or (ii) any negligent or intentionally tortious acts or
omissions of Landlord or any such person, or the contractors, agents, employees,
invitees or licensees of Landlord or any such person, in or about Landlord’s
Property either prior to, during or after the expiration of, the Term (including
any renewal term). If any action or proceeding shall be brought against Tenant
or Tenant’s agents, based upon any such claim, Landlord additionally shall
indemnify Tenant or Tenant’s agents for reasonable attorneys’ fees and
disbursements in connection with such action or proceeding in which Tenant
shall
prevail. Landlord shall pay to Tenant, within fifteen (15) days following
rendition by Tenant to Landlord of bills or statements therefor, sums equal
to
all losses, costs, liabilities, claims, damages, fines, penalties and expenses
referred to herein.
ARTICLE
XVIII- Termination;
Surrender; Holdover.
Section
18.1. Termination.
This
Lease and the tenancy hereby created shall cease and terminate at the end of
the
original Term hereof, or in the event of a validly exercised renewal option,
at
the end of such renewal term, without the necessity of any notice or termination
from either Landlord or Tenant, and Tenant hereby waives notice to remove and
agrees that Landlord shall be entitled to the benefit of law respecting summary
recovery of possession of the Premises from a tenant holding over to the same
extent as if statutory notice were given.
Section
18.2. Surrender
Upon Termination of Term.
Promptly upon the expiration or earlier termination of the Term of this Lease,
Tenant shall yield up the Premises to Landlord 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, ordinary wear and tear of the Premises, Alterations
permitted hereunder, and damage by fire or other casualty excepted, and Tenant
shall remove therefrom Tenant’s signs, goods and effects and any machinery,
fixtures and equipment used in the conduct of Tenant’s trade or business and
shall repair any damage caused by the installation or the removal thereof.
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 pursuant to the provisions thereof. In addition, upon such expiration
or
termination of the Term of this Lease, Tenant shall have all tanks located
on
the Property shall be left in the same condition as on the date hereof,
reasonable wear and tear excepted, provided Tenant shall empty the tanks of
all
product, except for any “bottom” product that cannot be suctioned out of the
tanks, and the same shall be done in compliance with all applicable laws.
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Section
18.3. Failure
to Surrender.
If the
Premises is not surrendered upon the expiration or earlier termination of this
Lease, Tenant hereby indemnifies Landlord against liability resulting from
delay
by Tenant in so surrendering the Premises, including any claims made by any
succeeding Tenant or prospective Tenant founded upon such delay. In addition,
in
the event Tenant remains in possession of the Premises after the expiration
or
earlier termination of this Lease without the execution of a new lease, without
the consent of Landlord, Tenant, at the option of Landlord, shall be deemed
to
be occupying the Premises as a tenant from month to month, at a monthly rental
equal to one and one-quarter times the monthly Base Rent payable during the
last
full calendar month of the Term, subject to all of the other terms of this
Lease
insofar as the same are applicable to a month-to-month tenancy.
ARTICLE
XIX - Defaults
by Tenant.
Section
19.1. Events
of Default and Remedies.
(i) If
Tenant shall default in the payment of Rent, on the days and time and at the
place that the same are made payable hereunder, and if such default shall
continue for five (5) days after receipt of written notice from Landlord that
such payment is past due; or (ii) if Tenant shall in any respect violate any
of
the terms, conditions or covenants herein contained, and if Tenant shall fail
to
commence to cure said default within thirty (30) days after notice of said
default from Landlord and, thereafter diligently continue to affect such cure,
then Tenant shall be in breach hereof and Landlord may elect to either (a)
terminate this Lease by written notice to Tenant on a date to be specified
in
said notice, not less than ten (10) days after the giving thereof; and upon
the
date specified in said 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 said 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 said date, to Landlord,
without cost or charge to Landlord, (b) re-enter and repossess the Property,
together with any and all improvements thereon and additions thereto, and/or
(c)
pursue any remedy permitted by law or equity for the enforcement of the
provisions hereof. Except as otherwise specifically provided herein, upon any
expiration or termination, neither Tenant or Tenant’s creditors and
representatives shall thereafter have any right, legal or equitable, in or
to
the Premises, any portion thereof, or in or to the possession of same, or in,
to
order under this Lease. Tenant hereby waives any and all right of redemption
which may then be provided by law.
Section
19.2. Bankruptcy
or Insolvency.
If any
sale of Tenant’s interest in the Premises created by this Lease shall be made
under execution or similar legal process, or if Tenant shall be adjudicated
a
bankrupt or insolvent, or if a receiver or trustee shall be appointed for its
business or property, or if a petition shall be filed under the Federal or
any
state bankruptcy act for a corporate reorganization of Tenant or an arrangement
with its creditors, or if Tenant shall make an assignment for the benefit of
creditors or initiate proceedings for the benefit of any insolvency law, or
if
in any other manner Tenant’s interest under this Lease shall pass to another by
operation of law, then, in any of said events, Tenant shall be deemed to have
committed a material breach of this Lease and Landlord may, at its option,
re-enter the Premises and declare this Lease and the tenancy hereby created
terminated; and further may exercise any remedy allowed pursuant to the terms
hereof for default. If at any time, Landlord shall have reasonable grounds
for
insecurity with respect to Tenant’s performance under the terms of this Lease,
Landlord may demand adequate assurance of due performance by Tenant, and if
Landlord does not receive such assurance within five (5) days from the date
of
its demand, Tenant shall be deemed to have committed a material breach of this
Lease and Landlord may, at its option, re-enter the Premises and declare this
Lease and tenancy hereby created terminated, and further may exercise any remedy
allowed pursuant to the terms hereof for default.
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Section
19.3. Delinquent
Rent.
Landlord shall be entitled to receive, and Tenant shall be obligated to pay
as
Additional Rent hereunder upon demand, the lesser of: (i) interest at the rate
of twelve percent (12%) per annum or (ii) the maximum rate of interest allowed
by law, upon any delinquent payment of Rent or upon any delinquency in the
payment of any other sum due from Tenant under this Lease, computed from the
fifth day of such delinquency for the first such delinquency and computed from
the first day of such delinquency for each successive delinquency.
Section
19.4. Tenant’s
Liability in Event of Default.
If, as
a consequence of a default by Tenant hereunder, Landlord terminates this Lease
or Tenant’s possession of the Premises prior to the scheduled expiration of the
Lease, then Landlord shall be entitled to the following amounts as its sole
monetary remedy and as agreed liquidated damages: (i) the reasonable cost of
restoring the Premises to the condition required by Section 18.2 hereof, as
if
the date of termination were the last day of the Term, and (ii) the Early
Termination Fee that would be due to Landlord from Tenant if Tenant had
exercised the Early Termination Option effective as of the date of the
termination by Landlord pursuant to this Article XIX.
Section
19.5. Right
to Relet the Premises.
If this
Lease should be terminated as provided in Section 19.1 above, Landlord may,
at
Landlord’s option, (i) re-let the Premises or any part or parts thereof without
any rights of Tenant for the remainder of the Term as herein originally
specified or (ii) re-let 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 re-entry and termination.
Section
19.6. Definition:
Rent.
Any and
all mention in this Lease of “Rent”
shall
be deemed to refer to the Base Rent plus all Additional Rent and such additional
sums as 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 Additional Rent.
ARTICLE
XX - Landlord.
Section
20.1. Definition
of Landlord.
The
term “Landlord” as used in this Lease means only the owner or the mortgagee in
possession for the time being of Landlord’s Property or the holder of a lease on
Landlord’s Property thereunder so that in the event of any sale of said Land or
an assignment of this Lease or any underlying lease or a demise of Landlord’s
Property, Landlord shall be and hereby is entirely freed and relieved of all
obligations of Landlord hereunder upon the purchaser, assignee or lessee
assuming and agreeing to observe and perform, in writing, all obligations of
Landlord hereunder, without the necessity of any consent or approval of Tenant.
The provisions of the preceding sentence shall be applicable to any successor
Landlord.
Section
20.2. No
Personal Liability.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed that there shall be absolutely no personal
liability on the part of Landlord, with respect to any of the terms, covenants
and conditions of this Lease, and that Tenant shall look solely to the equity
of
Landlord or such successor in interest in Landlord’s Property (plus any proceeds
from a sale of Landlord’s Property) for the satisfaction of each and every
remedy of Tenant in the event of any breach by Landlord or by such successor
in
interest of any of the terms, covenants and conditions of this Lease to be
performed by Landlord, such exculpation of personal liability to be absolute
and
without any exception whatsoever.
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Execution
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Section
20.3. Landlord’s
Default.
Landlord shall not be deemed to be in default in the performance of any of
its
obligations hereunder unless and until Landlord shall have failed to perform
such obligations within thirty (30) days or such additional time as is
reasonably required through the use of Landlord’s commercially reasonable best
efforts to correct any such default after notice by Tenant to Landlord properly
specifying wherein Landlord has failed to perform any such obligation. In the
event of an occurrence of a default by Landlord, beyond the expiration of the
cure periods provided in the foregoing sentence, Tenant shall have the right
to
terminate this Lease, recover from Landlord any damages suffered by Tenant
as a
result of such default and avail itself of any other remedies that may be
available to Tenant at law or in equity. In addition thereto, (i) Tenant shall
have the right to specifically enforce the obligations of Landlord hereunder
through judicial proceeding or otherwise, and (ii) in the event the Landlord
fails to provide any Required Utility Service required to be provided by
Landlord hereunder in violation of this Lease, and such failure continues for
a
period of three (3) days after Tenant notifies Landlord thereof, or Landlord
fails to perform any other obligations required to be provided by Landlord
hereunder and such failure constitutes a breach of this Lease, which is not
cured within the cure period set forth above, and, Tenant shall have the right
to perform such obligation at the expense of Landlord, and Landlord shall
promptly reimburse Landlord upon demand therefore and, in the event Landlord
fails to reimburse Tenant within fifteen (15) days of demand, Tenant shall
be
entitled to set off up to fifty percent (50%) of each monthly payment of Base
Rent payable hereunder up to the amounts owed to Tenant.
ARTICLE
XXI - Miscellaneous.
Section
21.1. Relationship
of Parties.
Nothing
contained in this Lease shall be construed to create the relationship of
principal and agent, partnership, joint venture or any other relationship
between the parties hereto other than the relationship of Landlord and
Tenant.
Section
21.2. Effectiveness
of Lease:
Except
as otherwise provided herein, the submission of this Lease for examination
does
not constitute a reservation of or option for the Premises and this Lease
becomes effective as a lease only upon execution and delivery thereof by both
Landlord and Tenant
Section
21.3. Recordation:
Neither
party shall record this Lease or any memorandum thereof without the express
written consent of the other party, which consent shall not be unreasonably
withheld; provided, Tenant shall be entitled to record a memorandum if required
by a leasehold mortgagee. The party requesting recordation shall pay the
recording costs and taxes. If the Lease is recorded, Tenant agrees upon the
expiration or early termination hereof to deliver to Landlord in recordable
form
a termination of the Lease.
Section
21.4. Notices:
All
notices from Tenant to Landlord shall be sent by registered or certified mail,
return receipt requested and addressed to Landlord at: 0000 Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attn: Xx. Xxxxxx X. Xxxxxx. All notices from Landlord
to Tenant shall be sent by registered or certified mail, return receipt
requested and addressed to Tenant [at the Premises]. Either party may from
time
to time designate in writing by registered mail a substitute address and
thereafter all notices shall be sent to such substitute address.
Section
21.5. Injury
From Leakage, Steam:
Landlord shall not be liable to Tenant, its agents, employees, contractors,
customers or other visitors for any injury or damage to person or property
resulting from falling plaster, steam, gas, electricity, water, rain, snow
or
dampness which may leak or issue from or through any part of the Premises or
from pipes, appliances, or plumbing.
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Execution
Version
Section
21.6. INTENTIONALLY
DELETED.
Section
21.7. Trial
by Jury:
Landlord and Tenant do 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
and/or any claim of injury or damage, and any statutory remedy.
Section
21.8. Successors
and Assigns.
This
Lease and the covenants, terms and conditions herein contained shall inure
to
the benefit of and be binding upon Landlord, its successors and assigns and
shall be binding upon Tenant, its successors and assigns, and shall inure to
the
benefit of Tenant and only such assignees of Tenant to whom an assignment by
Tenant has been consented to in writing by Landlord.
Section
21.9 Interpretation.
It is
agreed that if any provision of this Lease shall be determined to be void by
any
court of competent jurisdiction then such determination shall not affect any
other provision of this Lease, all of which other provisions shall remain in
full force and effect; and it is the intention of the parties hereto that if
any
provision of this Lease is capable of two constructions, one of which would
render the provision void and the other of which would render the provision
valid, then the provision shall have the meaning which renders it valid.
Reference to masculine, feminine or neuter gender shall include proper genders
as the case may be. The captions at the beginning of each Article and Section
of
this Lease are for convenience only and not a part of this Lease. This Lease
shall be interpreted in accordance with the laws of the State of
Maryland.
Section
21.10. Remedies
Cumulative.
The
failure of Landlord to insist in any one or more instances upon the performance
of any of the covenants 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 the
right
of Landlord to enforce the payment of the Rent or of any of the other
obligations of this Lease by such remedies as may be appropriate, and shall
not
waive or avoid the right of Landlord at any time thereafter to elect to
terminate this Lease, on account of such prohibited 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.
Section
21.11. Entire
Agreement.
This
Lease contains the entire agreement between the parties hereto; and any
agreement hereafter or heretofore made shall not operate to change, modify,
terminate or discharge this Lease in whole or in part unless such agreement
is
in writing and signed by each of the parties hereto. Landlord has made no
representations or promises with respect to the Premises except as are herein
expressly set forth.
Section
21.12. Certificates
by Landlord and Tenant.
Either
party shall, upon not less than ten (10) days prior written notice from the
other, furnish to the requesting party a written statement certifying that
(i)
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), (ii) this Lease, as modified, constitutes the entire
agreement between the parties with respect to the Premises, or, if it does
not,
then stating the additional agreements (oral or written) that are a part of
this
Lease, (iii) the dates to which the Rent and other charges have been paid,
(iv)
the commencement and expiration dates of this Lease and what renewal options
have been exercised, (v) to the best knowledge of the signer of such
certificate, the other party is not in default in performance of any covenant,
agreement, or condition in this Lease or stating in what respect such other
party is in default, (vi) such party has no claims against the other party
or
stating the nature and amount of such claims and (vii) that such party has
no
defenses to the enforcement of this Lease, or identifying such defenses. Any
such statement may be relied upon by any prospective purchaser of Landlord’s
interest, any mortgagee thereof, any assignee of any mortgage upon the Premises,
any prospective assignee or sublessee of Tenant’s interest in this Lease or any
mortgagee thereof, or any assignee of any mortgagee upon the leasehold estate
hereby created.
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Section
21.13. Brokers.
Landlord and Tenant each covenant, warrant and agree with the other that no
person, company, firm, corporation or other entity, has acted as a broker or
performed any work for which it is entitled to brokerage commissions, finder’s
fees or any other monies and each of the parties hereto, respectively, agree
to
indemnify and save each other harmless from and against all judgments, suits,
costs, and expenses which either party may incur by reason of any action or
claim for commissions by any other such person, firm, company, corporation,
or
other entity by reason of this Lease transaction, except as such judgments,
etc., that may arise by reason of one party’s breach of the foregoing
representation and warranty.
Section
21.14. Definition:
Mortgage.
Whenever the term mortgage is used herein, it shall be deemed to include deed
of
trust or other written security agreement which results in a lien on property,
whether real, personal or mixed, and the term “mortgage” shall include the
beneficiary of a deed of trust and unless the context shall otherwise require,
the term “mortgagee” shall refer to the permanent mortgage and not a
construction mortgage. Unless the context otherwise requires, “mortgage” shall
mean such mortgage or mortgages from time to time in effect, secured by the
Premises. This Section 21.14 shall not apply with respect to Article
XIII.
Section
21.15. Corporate
Tenants.
In the
event Tenant is a corporation, Tenant hereby covenants and warrants that: Tenant
is a duly constituted corporation qualified to do business in Maryland; all
Tenant’s franchises and corporate taxes have been paid to date; all future
forms, reports, fees and other documents necessary for Tenant to comply with
applicable laws will be filed by Tenant when due; and that the persons executing
this Lease are duly authorized by the board of directors of such corporation
to
execute and deliver this Lease on behalf of the corporation.
Section
21.16. Entire
Agreement.
This
Lease, including all exhibits hereto, constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any
prior oral and written understandings or agreements.
Section
21.17. Severability.
Each
provision hereof is intended to be severable. If any term or provision is
illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder of this Lease.
Section
21.18. Governing
Law.
This
Lease shall be governed by and construed in accordance with the laws of the
State of Maryland, without regard to conflict of law principles
thereof.
Section
21.19. Counterparts.
This
Lease may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
[Signature
appear on next page.]
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Execution
Version
IN
WITNESS WHEREOF the parties hereto, by the properly authorized persons and
with
their respective seals attached, have duly executed this Lease as of the day
and
year first above written.
|
LANDLORD:
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||||
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XXXXXXXXXX
PARTNERS, LLC
|
||||
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By:
|
Xxxxxxxxxx
Holdings, LLC,
|
|||
|
Authorized
Member
|
||||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
(Seal)
|
||
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Xxxxxx
X. Xxxxxx,
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||||
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Authorized
Member
|
||||
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ATTEST/WITNESS:
|
TENANT:
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|||
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/s/
Xxxx X. Xxxxxxxxx
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By:
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/s/
Xxxxx X. Xxxxxxxxx
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(Seal)
|
|
|
Name:
|
Xxxxx
X. Xxxxxxxxx
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|||
|
Title:
|
President
|
|||
27
Exhibit
A-1
Landlord’s
Property Description
[See
attached]
28
Exhibit
A-1
Premises
Description
[See
attached]
29
Exhibit
B
Title
Exceptions
[See
attached]
30
Exhibit
C
Landlord
and Tenant Work Exhibit
[See
attached]
31
Exhibit
D
Prior
Contracts
[See
attached]
32
Exhibit
E
Environmental
Information Provided to Tenant
[See
attached]
33
Exhibit
F
Required
Utility Services
[See
attached]
34
