EXHIBIT 10.29
LEASE AGREEMENT
FRP LAKESIDE L.P., a
Maryland limited partnership
and
ALCORE, INC., a
Delaware corporation
TABLE OF CONTENTS
PAGE
1. Property............................................................. 1
2. Term................................................................. 2
3. Construction and Alterations......................................... 3
4. Rent................................................................. 4
5. Security Deposit..................................................... 5
6. Use.................................................................. 5
7. Utilities............................................................ 6
8. Use of Roof.......................................................... 6
9. Repairs and Maintenance.............................................. 6
10. Real Estate Taxes.................................................... 8
11. Alterations.......................................................... 9
12. Liens................................................................ 9
13. Compliance with Laws and Regulations/Hazardous Materials............. 9
14. Inspection by Landlord.............................................. 10
15. Indemnification; Liability Insurance................................ 11
16. Casualty Insurance; Damage or Destruction........................... 11
17. Eminent Domain...................................................... 13
18. Default............................................................. 13
19. Quiet Enjoyment; Estoppel; Subordination............................ 16
20. Assignment.......................................................... 17
21. Applicable Law...................................................... 18
22. Notices............................................................. 18
23. Tenant Financial Statements......................................... 19
24. Brokerage........................................................... 19
25. Successors and Assigns.............................................. 19
26. Surrender of the Property........................................... 20
27. Renewal Option...................................................... 20
28. Ownership of The Property/Declarations of Covenants................. 21
29. Force Majeure....................................................... 21
30. Right of First Refusal.............................................. 22
31. Recordation......................................................... 22
32. Guaranty............................................................ 22
33. Exhibits............................................................ 23
EXHIBITS
Exhibit A Site Plan depicting Access Easement and Loading Dock Easement
Exhibit B Tenant's Space Plan
Exhibit B-1 Plans and Specifications
Exhibit C Commencement Agreement
Exhibit D Guaranty
Exhibit E Lakeside Business Park Declaration of Covenants and Restrictions
Land Use, Architectural Control and Common Area
Exhibit F Lakeside Business Park Declaration of Covenants, Conditions and
Restrictions Storm Water Management
LEASE AGREEMENT
THIS LEASE is made this 21st day of January, 1998, by and between FRP
LAKESIDE L.P., a Maryland limited partnership (hereinafter called "LANDLORD")
and ALCORE, INC., a Delaware corporation (hereinafter called "TENANT").
WITNESSETH:
That for and in consideration of the rent hereinafter reserved, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord the property described in Section I, upon the following terms:
1. PROPERTY
The property leased hereby (hereinafter called "PROPERTY") is (a)
the 5.23 acres, more or less, referred to as Lot #7 (Harford County property tax
account #A-01-302531) in the Lakeside Business Park inclusive of all the
improvements existing and proposed thereon pursuant to the plans and
specifications attached hereto and referred to as EXHIBITS A, B AND B-1
inclusive of the 110,875 square feet, more or less, of space under construction
as of the date hereof (the "BUILDING"), and (b) the right to use in common with
others those portions of land shown highlighted on EXHIBIT A and not part of Lot
7, all of which shall be the subject of future easements running to the benefit
of Lot 7 as hereafter described.
The Building shall be constructed in accordance with EXHIBITS B AND
B-1. Upon completion, the Property's address will be 0000 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000. Tenant, its agents, employees and invitees shall have
the exclusive right to use all of the driveways, walkways, parking areas and
other areas and facilities of the Property, except for the two proposed easement
areas indicated on EXHIBIT A attached hereto.
Landlord confirms it is the owner of the parcels bordering the
property on its north, south, and west boundaries. At such time as Landlord
deems appropriate, but not later than the development and/or subdivision of
proposed Lot 6, Landlord will subdivide the parcel bordering the Property and,
in conjunction with said subdivision, Landlord will record two easements
affecting the Property, which easements shall be in form and content reasonably
satisfactory to Tenant. The first easement (highlighted in yellow on EXHIBIT A
and hereafter, the "ACCESS EASEMENT") shall provide for vehicular and pedestrian
ingress and egress to and from proposed Lots 5 and 6, and to and from Xxx 0 xxx
xxx xxxx on the west side of the Property. The Access Easement shall burden that
portion of Lot 7 contained therein. The Access Easement shall benefit Lot 7 to
the extent of that portion thereof not now contained in Lot 7. Until Lots 5
and/or 6 are subdivided, Tenant shall be granted a non-exclusive right to use
the Access Easement, and any maintenance required as a result of Tenant's use of
the Access Easement during such period shall be at Tenant's expense. Upon
commencement of the development Lots 5 and/or 6, the owner(s) of Lots 5 and/or 6
shall share in the costs to maintain the Access Easement on a percentage basis
determined by the number of lots utilizing such easement. For example, if Lots 5
and 6 are divided into a total of four lots that utilize the Access Easement,
then the denominator used to determine Tenant's share of costs to maintain said
easement shall be "5," since Lots 5, 6 and 7 would, in this example, include 5
lots in total.
The second easement (highlighted in blue on EXHIBIT A and hereafter,
the "LOADING DOCK EASEMENT") shall be for ingress and egress of trucks and
trailers over the Loading Dock Easement area to the loading docks on the
benefitted parcels. Landlord warrants that the area from the Building to the
building proposed to be built on Lot 6, shall contain not less than one hundred
sixty (160) linear feet from any point on that portion of either Building from
which loading and unloading occurs or may occur. Until such time as Lot 6 is
subdivided, the tenant of Lot 7 shall be granted a non-exclusive right to use
the land to be included in the Loading Dock Easement, and any maintenance
required as a result of Tenant's use of the Loading Dock Easement during such
period shall be at Tenant's expense. After Lot 6 is subdivided, Landlord will
formally record a Loading Dock Easement. The cost to maintain the Loading Dock
Easement after Lot 6 is developed shall be allocated equally (50-50) between
Lots 6 and 7.
2. TERM
The term of this Lease shall begin on the date which is not more
than one hundred forty-five (145) days after the last to occur of: (i) execution
of this Lease and the Guaranty attached hereto and incorporated herein as
EXHIBIT D ("Guaranty"), (ii) Tenant's approval of Tenant's Space Plan (EXHIBIT
B) (such date being hereinafter referred to as the "Anticipated Commencement
Date"). The term shall end ten (10) years after the first day of the first full
calendar month of the term. If, for any reason, Landlord does not deliver
possession of the Building to Tenant with evidence of "substantial completion"
(as hereinafter defined) as required by the terms of the second paragraph of
this Section 2 on or before the Anticipated Commencement Date, then the
commencement of the term shall be delayed until delivery of the Building and in
addition, for each day thereafter that Landlord fails to so deliver the Building
to Tenant, Landlord shall, beginning on the 146th day, pay to Tenant the amount
of Two Hundred Fifty Dollars ($250.00) per day of delay. Notwithstanding the
foregoing, in the event that delivery by Landlord of the Building upon such
terms has not occurred on or before July 3, 1998, Tenant shall, until such time
as the Building is delivered to Tenant in the condition herein required, have
the right to receive, for each day of delay, beginning on July 4, 1998, and in
addition to the $250/day payment hereinabove set forth, an abatement of rent.
If, for any reason, the term has not begun by September 1, 1998,
then this Lease shall be void and of no further force or effect. For purposes
hereof, "substantial completion" of the Property improvements shall be evidenced
by: (i) issuance of an occupancy certificate by Harford County, provided Tenant
has performed and completed all its work within the Property in accordance with
all federal, state, county and local laws, rules and regulations, (ii) issuance
of an architect's certificate of completion certifying that the Building was
completed in accordance with the Plans and Specifications attached hereto as
EXHIBIT B-1, and (iii) issuance of a Structural Engineer's certificate of
compliance. Upon substantial completion, Landlord shall deliver possession of
the Property to Tenant, and Landlord and Tenant shall confirm the commencement
of the term by executing a "COMMENCEMENT AGREEMENT" in the form attached hereto
as EXHIBIT C.
3. CONSTRUCTION AND ALTERATIONS
Landlord's Construction: Landlord shall, at its expense, prepare the
Property for Tenant's use, substantially in accordance with the outlined
specifications and Tenant's Space Plan set forth on EXHIBITS B and B-1,
respectively, each attached hereto and made a part hereof. Upon the execution of
this Lease, Landlord shall prepare working plans and specifications for the work
it shall perform on the Property consistent with EXHIBITS B and B-1, and
thereafter apply for all necessary building and other permits. Upon receipt of
the requisite permits Landlord shall commence the work required of it by this
Lease.
Notwithstanding anything to the contrary set forth in this Lease,
and notwithstanding any limitation of liability by virtue of the transfer of
Landlord's interest in the Property or otherwise, for a period of one (1) year
following the later of substantial completion of the Building and the
commencement of the term, FRP Lakeside, L.P. agrees to warrant all construction
and improvements in the Building performed by Landlord or its agents.
Tenant's Construction: Any work in addition to the work specifically
enumerated in EXHIBITS B AND B-1 required for Tenant's use of the Property shall
be performed by Tenant at its cost and expense after written approval is
obtained from Landlord.
The parties acknowledge that the construction costs for the work
described on EXHIBITS B and B-1 will cost $582,412.00. Landlord shall provide to
Tenant an allowance of $500,000.00 toward the construction costs for the work
detailed in Exhibits B and B-1. Therefore, the construction costs in excess of
Landlord's allowance to Tenant shall be $82,412.00 and shall be paid by Tenant
to Landlord within thirty (30) days after the commencement of the term.
Construction costs in excess of such amount shall be paid in cash by Tenant
within 30 days after presentation by Landlord of invoices therefor, together
with certification by Landlord that such costs have not been included in
previously paid invoices. Tenant shall not be obligated to pay for any change
orders unless approved in writing by Tenant. Landlord agrees that in the event
Tenant requests a change to EXHIBIT B and/or B-1 that results in the removal of
a particular item set forth therein, Tenant may elect to either receive a credit
equal to the cost of the item removed, or Tenant may substitute an item of
comparable cost in place of any such removed item.
4. RENT
Tenant shall pay Landlord an annual rent per the following schedule:
YEAR: PAYABLE PER MONTH: ANNUAL
----- ------------------ ------
1 $37,500.00 per month $450,000.00
2 38,400.00 per month $460,800.00
3 39,400.00 per month $472,800.00
4 40,400.00 per month $484,800.00
5 41,450.00 per month $497,400.00
6 42,500.00 per month $510,000.00
7 43,600.00 per month $523,200.00
8 44,700.00 per month $536,400.00
9 45,900.00 per month $550,800.00
10 47,100.00 per month $565,200.00
All rent shall be paid in advance on the 1st day of each calendar
month during the term. If the term begins on a day other than the 1st day of the
calendar month, the rent for the period from the beginning date of the 1st day
of the first full calendar month of the term shall be prorated at the aforesaid
monthly rate and shall be payable on the date the term begins. Rent shall be
paid to Landlord at FRP Lakeside L.P., 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, or to such address as Landlord may from time to time notify
Tenant, without prior demand, and without abatement, deduction, recoupment, or
set-off except as set forth in this Lease.
Whenever, under the terms of this Lease, any sum of money is
required to be paid by Tenant in addition to the rent herein reserved, whether
or not such sum is designated as "additional rent", it shall, nevertheless, be
deemed to be additional rent and shall be collectible as rent.
If any installment of rent or an other sum payable hereunder is not
received by Landlord within five (5) days of the due date, and Tenant fails to
correct the delinquency within five days written notice of said delinquency, the
rent and other sum shall be accompanied by a late charge of fifteen percent
(15%) of the total due.
Tenant agrees that if Tenant vacates the Premises at any time, it
shall pay, in addition to other sums due hereunder, and as additional rent
hereunder, together with monthly payments of Base Rent, three percent (3%) of
the monthly Base Rent, such additional rent to be payable until the Premises is
again occupied by Tenant or any assignee or subtenant of Tenant.
5. SECURITY DEPOSIT
A security deposit of thirty-seven thousand five hundred and 00/100
dollars ($37,500.00) will be paid to Landlord at lease execution. This deposit
shall be held, without interest, as security for the payment of rent and other
sums payable by Tenant under this Lease, and the faithful performance of all
other terms, covenants and conditions of this Lease. The deposit shall be repaid
to Tenant at the expiration of the term without any interest, provided Tenant
shall have made all payments and performed all covenants and agreements on
Tenant's part to be performed hereunder. Upon default by Tenant hereunder, all
or part of the deposit may, at Landlord's option, be applied on account of the
default, and thereafter Tenant shall promptly restore the deposit to the amount
stated above. Landlord may commingle the deposit with other funds of Landlord
and Tenant waives the benefit of any provision of law requiring the deposit to
be held in escrow or in trust.
6. USE
The Property shall be used and occupied by Tenant solely: (i) as an
office, warehouse and manufacturing facility for the construction, sales and
distribution of aluminum, non-metallic, thermo-plastic and other types of
honeycomb cores, (ii) for the manufacture of commercial panels using structural
core materials, (iii) for the operation of a quality control lab, (iv) for the
operation of a research and development lab, (v) for special processing of
structural core materials, and (vi) for other uses incidental thereto, and for
no other purpose without Landlord's prior consent.
Tenant acknowledges it is aware the Property's use is governed by
the Lakeside Business Park Declaration of Covenants and Restrictions Land Use,
Architectural Control and Common Area and the Lakeside Business Park Declaration
of Covenants, Conditions and Restrictions Storm Water Management, which are
attached hereto as EXHIBITS E and F, respectively. Landlord represents that
Tenant's use of the Property stipulated herein shall be permitted within the
Lakeside Business Park Declaration of Covenants and Restrictions Land Use,
Architectural Control and Common Area and the Lakeside Business Park Declaration
of Covenants, Conditions and Restrictions Storm Water Management. Landlord
further warrants it will not unreasonably withhold it's approval for Tenant to
modify it's use of the Building's interior, provided, Tenant adheres to the
Lakeside Business Park Declaration of Covenants and Restrictions Land Use,
Architectural Control and Common Area and the Lakeside Business Park Declaration
of Covenants, Conditions and Restrictions Storm Water Management and all Tenant
uses are in compliance with federal, state, county and local laws, ordinances
and guidelines inclusive of zoning regulations applicable to the Property.
Tenant shall, at its expense, obtain all federal, state, county and
local permits with respect to the conduct of its business, the use and occupancy
of the Property and Building and shall pay occupancy fees, license fees and
other charges imposed on the Property and the use and occupancy thereof.
7. UTILITIES
Landlord shall furnish gas, electricity, water and sewer service to
the Property. Tenant shall arrange to have all fees for gas and electric billed
in its name and Tenant shall pay promptly, when due, all charges for such
service. Landlord shall pay all third party-levied water and sewer charges
applicable to the Property and Tenant shall pay Landlord, within thirty (30)
days after Landlord's written request, all third party levied charges for
sprinkler alarms, water and sewer service on the Property. Landlord shall pay
for all utilities and related charges in connection with the construction and
build-out of the Building, including water and sewer impact fees without
reimbursement from Tenant. Tenant shall, at its expense, obtain telephone,
security and other services required in connection with its use of the Property.
8. USE OF ROOF
Tenant may use the roof of the Building to install a satellite
antennae, provided: (i) Tenant notifies Landlord in writing (inclusive of all
plans pursuant thereto) of it's intent to use the roof, (ii) Tenant shall use
Landlord's roofing contractor for any such installation to ensure that the roof
warranty remains in full force and effect, and (iii) Tenant shall maintain such
satellite antennae and repair any damage to the roof resulting from Tenant's use
and/or installation of such satellite antennae, all of which shall be performed
by the roofer issuing the roof warranty. Tenant's use of the roof for any other
reason shall require Landlord's prior consent, which consent shall not be
unreasonably withheld, provided Tenant's use of the roof complies with the
Lakeside Business Park Declaration of Covenants and Restrictions Land Use,
Architectural Control and Common Area and the Lakeside Business Park Declaration
of Covenants, Conditions and Restrictions Storm Water Management, all Tenant's
roof uses are in compliance with federal, state, county and local laws,
ordinances and guidelines inclusive of zoning regulations pursuant to the
Property, and Tenant indemnifies Landlord and holds it harmless from all claims,
damages and encumbrances arising from the use of the roof by Tenant. Should
Tenant cause any work to be performed on the roof which causes the roof warranty
to be terminated, then Tenant shall thereafter, at its sole cost and expense,
maintain the roof.
9. REPAIRS AND MAINTENANCE
Except as provided in Section 8 hereof, Landlord shall, at its
expense, maintain the exterior walls, structural components and roof of the
Building in good condition, all such maintenance to be performed in a
workmanlike manner. Tenant shall promptly notify Landlord of any damage to or
the necessity of any repairs to the roof or exterior walls. Tenant shall, at its
expense, maintain the interior of the Building, and all doors, loading docks and
leveling equipment, if any, the windows and glass, and the systems, machinery
and equipment, including plumbing, electrical, heating and ventilating and air
conditioning, and promptly make all necessary repairs and replacements. In
addition, Tenant shall keep the sidewalks, steps, ramps, walkways and loading
docks which exclusively serve the Building free of snow, ice and debris. At the
beginning of the term, Landlord shall provide all manufacturer's product
warranties to Tenant and, upon expiration of product manufacturer warranties,
Tenant shall, at its expense, obtain and keep in full force and effect
throughout the term, maintenance contracts for the heating and air conditioning
systems and equipment with contractors acceptable to Landlord. Copies of the
contracts shall be given to Landlord at the beginning of the term, and copies of
renewals on replacements shall be given to Landlord prior to expiration of prior
maintenance contract terms. Tenant shall provide its own janitorial services,
including window cleaning and light bulb, tube and starter replacement, and
shall keep all trash in closed containers and arrange for periodic removal
thereof. Tenant's trash containers or dumpster shall be placed at a location
designated by Landlord. Tenant shall also keep the walkways, loading docks and
ramps adjacent to the Property free of litter. In addition, Tenant shall, upon
the reasonable request of the Landlord, at Tenant's expense, throughout the
term, maintain a contract with an extermination service, acceptable to Landlord
to provide monthly service to control rodents and other pests in the Property.
If Tenant fails to maintain the required contracts, Landlord shall provide
written notice to Tenant of said failure to maintain the requisite contracts and
shall arrange for the contracts fifteen days thereafter if Tenant continues to
fail to comply with contract requirements, at Tenant's expense. Landlord shall
provide a one (1) year warranty on all doors, loading docks and leveling
equipment, if any, the windows and glass, and the systems, machinery and
equipment, including plumbing, electrical, heating and ventilating and air
conditioning, along with the floor slab from the date of Tenant occupancy of the
Property. Said warranty shall be provided except in cases where Tenant's use of
facilities demonstrates willful disregard for care and maintenance of it's
Property.
Landlord shall maintain the sprinkler system and the parking,
driveway and other areas and facilities of the Property in good condition and
repair. Except for those areas required to be kept free of ice, snow and litter
by Tenant pursuant to the first paragraph of this Section 9, Landlord shall keep
the parking, driveway and other areas and facilities of the Property reasonably
free of ice, snow and litter. Additionally, Landlord shall provide adequate
lighting and, if necessary, security for these areas. Tenant shall pay to
Landlord the amounts set forth below as reimbursement to Landlord for all
reasonable costs and expenses incurred by Landlord to maintain the Property.
Such costs and expenses shall include, without limitation, gardening and
landscaping, roof maintenance, premiums for public liability and property damage
insurance, repairs, parking lot striping and maintenance, exterior wall
painting/sealing, lighting, sanitary control, sprinkler system monitoring,
maintenance and repair, annual environmental and safety inspections, Lakeside
Owner's Association dues and assessments, the cost of personnel directly related
to the Building's maintenance (which shall be payable only as to the verifiable
portion of the time such employees actually spend at the Property), plus 20% of
all the foregoing for administrative and overhead costs. Tenant shall reimburse
Landlord for actual snow removal costs for Lot 7 only, subject to adjustment
based on the Loading Dock Easement and the Access Easement as described in
Section 1 hereinabove. All contracts for snow removal shall require Tenant's
prior approval. In addition, during the renewal term (if any) all contracts for
snow removal, gardening and landscaping, and sprinkler system monitoring and
maintenance shall require Tenant's prior approval. Any such approvals by Tenant
shall not be unreasonably withheld. All other expenses incurred by Landlord to
maintain the Property shall be initiated by Landlord in good faith with the
intent of maintaining the Property in good, workmanlike condition. Landlord
agrees and confirms no capital improvements shall be included in billable
operating costs unless Tenant specifically agrees to said costs in advance of
incurring same.
Tenant shall pay for maintenance costs (other than snow and ice
removal, which shall be payable at actual cost to Landlord) each month in the
following amounts:
YEAR MONTHLY AMOUNT AMOUNT PER SQUARE FOOT
---- -------------- ----------------------
1 $1,847.92 $ .20
2 $1,940.31 $ .21
3 $2,032.71 $ .22
4 $2,125.10 $ .23
5 $2,217.50 $ .24
6 $2,309.90 $ .25
7 $2,402.29 $ .26
8 $2,494.69 $ .27
9 $2,587.08 $ .28
10 $2,679.48 $ .29
If Landlord shall fail to commence the making of any repairs or
Landlord fails to perform any maintenance it is obligated to do under the terms
of this Lease within thirty days (30) after written notice from Tenant [except,
if an emergency occurs and the immediate curing of such breach is necessary to
protect the Property or persons from imminent injury or damage, the thirty (30)
day grace period shall be reduced to twenty-four (24) hours after written notice
via facsimile], Tenant shall have the right to cause such repairs or maintenance
to performed, and, if the repairs or maintenance are both the Landlord's
responsibility and sole expense pursuant to this Lease, Tenant shall be entitled
to reimbursement from Landlord for the reasonable cost of any such repairs and
maintenance within thirty days after Landlord receipt of Tenant's statement of
costs inclusive of supporting documentation (e.g. paid invoices). If Landlord
fails to pay any such costs to Tenant and Landlord fails to notify Tenant in
writing that it formally disputes the validity of said costs within thirty (30)
days after Tenant's written notice, Tenant shall be entitled to offset such
costs against it's rents thereafter coming due under this Lease.
10. REAL ESTATE TAXES
Tenant shall pay to Landlord, within thirty days after Landlord's
written request, all real estate taxes, assessments and other governmental
charges levied against the Property in excess of real estate taxes, assessments
and other governmental charges levied for the base tax year when all
improvements stipulated in Section 3 and EXHIBITS B AND B-1 are complete and
included in the assessment. Tenant acknowledges the property resides within an
enterprise zone and confirms the base year tax assessment may be significantly
discounted to reflect the benefit of enterprise zone classification. Tenant's
obligation to pay taxes and other charges shall be apportioned with respect to
the tax years in which the term begins and ends proportionately as the number of
days in the term during such tax year bears to 365. Landlord shall furnish a
copy of all real estate tax assessment notices to Tenant within ten days after
their receipt by Landlord. Tenant shall, if permitted by law, have the right to
appeal any real estate tax assessment or charge, provided, Landlord is informed
in writing of Tenant's intent to pursue an appeal within ten days after Tenant's
receipt of real estate tax assessment notices from Landlord and Landlord is
granted the right to participate in said appeal on Tenant's behalf.
11. ALTERATIONS
Tenant shall not make any structural alterations, additions or
modifications to the Property, or place any signs thereon, without the prior
written consent of Landlord. Landlord agrees it will not unreasonably withhold
or condition it's approval, provided, all alterations, additions or
modifications are in compliance with all federal state, county and local laws,
regulations and guidelines. In addition, all alterations, additions or
modifications must conform to the Lakeside Business Park Declaration of
Covenants and Restrictions Land Use, Architectural Control and Common Area and
the Lakeside Business Park Declaration of Covenants, Conditions and Restrictions
Storm Water Management. Prior to making any approved alteration, modification or
addition, Tenant shall, at its expense, obtain all necessary permits from
appropriate governmental authorities and, upon completion, furnish to Landlord
an "as-built" drawing of the alteration, addition or modification. All
additions, alterations and modifications made by Tenant shall be the property of
Landlord. Tenant shall, however, upon the request of Landlord given to Tenant at
least thirty (30) days prior to the expiration or termination of the term,
remove any alterations, additions or modifications made by it and restore the
Property to the condition which existed at the beginning of the term.
12. LIENS
Tenant shall not permit the Property to be subjected to any
mechanic's or other liens; and if any lien attaches, Tenant shall promptly
discharge the same by payment, bond or otherwise; and Tenant shall, at its
expense, defend any proceeding for the enforcement of any lien, discharge any
judgement thereon and save Landlord harmless from all costs and expenses
resulting therefrom, including reasonable counsel fees and other expenses
incurred by Landlord, if it elects to defend or participate in the defense of
such proceedings.
13. COMPLIANCE WITH LAWS AND REGULATIONS/HAZARDOUS MATERIALS
Tenant shall promptly comply with all laws, rules, regulations,
requirements and recommendations of governmental bodies and public authorities,
fire insurance rating organizations and insurers, pertaining to the Property and
the use and occupancy thereof. Tenant shall not do or suffer to be done, or keep
or suffer to be kept anything in or about the Property which will contravene any
insurance which Landlord or Tenant carries with respect to the property. No
hazardous materials or toxic substances shall be stored or kept in or about the
Property, and no such substances shall be discharged from the Property except in
strict accordance and compliance with federal, state and local regulations and
guidelines for the use, handling treatment and discharge of said substances. No
activity may be carried on in the Property which would produce any waste
materials that are considered or classified as hazardous or toxic under any
federal, state or local law, ordinance, rule or regulation beyond the scope of
operations as set forth in Section six above. And, any activities or uses
permitted within section six of this Lease must be performed in strict
accordance with all federal, state and local regulations and guidelines for the
use, handling treatment and discharge of said substances.
Tenant agrees to indemnify, defend, and hold harmless Landlord, it's
assignees and their respective agents, employees, officers, and directors from
and against any and all damages, actions, awards, fines, claims, and actions of
any kind, and all costs associated therewith including clean-up costs, expenses,
reasonable attorneys' and consultants' fees and court costs which may arise as a
result of any claim or finding that Hazardous Materials are present within, upon
or beneath the Property and caused by Tenant, and Tenant will, at it's sole cost
and expense, properly investigate, clean-up, remediate, remove, and xxxxx such
Hazardous Materials, and take all other actions required by any federal, state,
local, or other governmental authority having jurisdiction thereof, at times and
in a manner so as not to disturb other residents in Lakeside Business Park, in
accordance with all applicable federal, state, county and local laws, rules,
regulations, orders, and ordinances. Upon Landlord's request, Tenant shall, at
no expense to Landlord, provide Landlord with such evidence and complete all
certifications required by all such governmental authorities as to the
environmental status of the Property including the existence of Hazardous
Materials. Tenant's and Landlord's obligations and liabilities under this
paragraph shall survive the expiration or earlier termination of this Lease.
Landlord represents that, to the best of its knowledge, no Hazardous
Materials or conditions exist on or under Lot 7. Landlord will defend, indemnify
and hold harmless Tenant, its successors and assigns, from and against any and
all liabilities, actions, demands, penalties, losses, costs or expenses
(including, without limitation, reasonable attorneys' fees, consultants' fees
and remedial costs), suits, costs of any settlement or judgment and claims which
may be paid, incurred or suffered by Tenant as a result of the presence on or
under Lot 7 of Hazardous Substances, provided such presence is not as a result
of Tenant's use or occupancy of Lot 7 or the Building thereon.
The term "Hazardous Materials" as used herein shall mean any
hazardous or toxic substance, material, or waste which, during the term of this
Lease, is determined by or defined by any federal, state, local, or other
government authority to be capable of posing a risk of injury to health, safety,
or property and/or disposal of which is regulated by any such governmental
authority.
14. INSPECTION BY LANDLORD
Upon twenty-four hours advance notice, Landlord, its agents,
authorized representatives and designees, may enter the Property during normal
business hours to view and inspect the same, to show the Property to prospective
purchasers and mortgagees, or to perform any work therein. Further, Landlord
may, at any time after twenty-four hours advance notice during the last six
months of the lease term, enter the Property for the purposes of showing it to
prospective tenants and post "For Rent" signs on the Property. Landlord warrants
it will exercise all reasonable care not to interfere or impede Tenant's ability
to conduct it's business during any visits to the Property. Notwithstanding the
foregoing, Landlord shall be permitted without any advance notice to enter the
Property to perform safety or environmental compliance inspections.
15. INDEMNIFICATION; LIABILITY INSURANCE
Tenant shall defend, indemnify and save Landlord harmless from and
against any and all claims, actions, demands, damages, liability and expenses
(including reasonable counsel fees) for damage to property and injury or death
of persons, which is caused by or arises out of or in connection with the
Property, its appurtenances, and the use or occupancy thereof, or any act or
omission of Tenant, its agents, employees, invitees or contractors, or out of a
breach by Tenant or any term, covenant or condition of this Lease to be
performed or observed by Tenant except for circumstances where the claims,
actions, demands, damages, liability and expenses (including reasonable counsel
fees) for damage to property and injury or death of persons, is caused by the
gross negligence or willful misconduct of Landlord or it's agents,
subcontractors, invitees or employees.
Tenant shall, at its expense, maintain comprehensive general public
liability insurance covering personal injury and property damage occurring on
the Property and its appurtenances, which insurance shall include Landlord and
Tenant as named insureds, and shall include contractual indemnity coverage for
Tenant's liability hereunder. This insurance shall be written with companies
acceptable to Landlord and have liability limits of at least Four Million
Dollars ($4,000,000), combined single limit coverage, on an occurrence basis.
Landlord shall maintain comprehensive general public liability
insurance covering personal injury and property damage occurring on the
Property. This insurance shall have liability limits of at least Four Million
Dollars ($4,000,000), combined single limit coverage, on an occurrence basis.
16. CASUALTY INSURANCE; DAMAGE OR DESTRUCTION
Landlord shall maintain all risks insurance on the Property for the
full replacement cost thereof, including rent interruption insurance on the
Building in an amount equal to at least six months of gross rent revenues.
Tenant shall pay to Landlord, within thirty (30) days after Landlord's written
request, the annual cost of any increase in insurance premiums for this all
risks insurance over the premium for the year in which the term begins for
Landlord to maintain this insurance.
Tenant shall, at its expense, maintain at least standard fire and
extended coverage, vandalism, malicious mischief, and sprinkler damage insurance
on its trade fixtures, equipment and other personal property on the Property,
existing Landlord-provided improvements to the Property, on the leasehold
improvements to the Property, and all other improvements provided by the Tenant
or Landlord to the Property hereafter for their full replacement value,
containing a waiver of subrogation for the benefit of Landlord. Landlord shall
not be liable to Tenant for any damage to any property of Tenant from any cause,
unless it is due to Landlord's willful negligence, misconduct or failure to
comply with terms of the Lease. Certificates evidencing the insurance required
hereby, naming Landlord as an additional insured, shall be delivered to Landlord
at the beginning of the term and at the time of renewal or replacement.
If the Property, or any part of the Building, is damaged or
destroyed by fire or other casualty, to the extent that appropriate governmental
representatives (fire marshals, building inspectors) declare the Property unfit
for Tenant's intended purposes, Tenant shall give notice thereto to Landlord and
Landlord shall, at its option, either (i) repair, restore, rebuild and replace
the damaged or destroyed part, and complete the same as soon as reasonably
possible, subject to delays beyond its reasonable control, to the condition they
were in prior to the damage or destruction, except for changes in design or
materials as may then be required by law or prudent under the circumstances; or
(ii) if the Property or the Building in which it is located is damaged or
destroyed so as to render it wholly or substantially untenable, terminate this
Lease by written notice to Tenant within thirty (30) days of the date of the
casualty.
If Landlord elects to repair and restore, there shall be an
abatement of rent and additional rent. If Landlord terminates this Lease as
above provided, rent and additional rent shall be paid through the date of the
casualty. If Landlord fails to substantially restore the Property within six (6)
months after the date of casualty, Tenant may elect to terminate the remainder
of it's lease term, provided, no early lease termination fees or charges, if
applicable, are levied by Tenant against Landlord. Notwithstanding the
foregoing, Landlord warrants it will diligently pursue repair or restoration
endeavors in a timely manner on behalf of Tenant.
MUTUAL WAIVER OF SUBROGATION. Landlord and Tenant shall each insure
their properties as herein required, and neither shall be responsible to the
other for any damage to its property from any cause, unless the damage is due to
the other's negligence and is caused by an occurrence which is not an insured
hazard under insurance required to be carried hereunder; it being understood
that it is not the intention of the parties that they be relieved from liability
for negligence contrary to any statute or public policy of the State of
Maryland, but rather that each avail itself of insurance coverage without
subjecting the other to liability for losses that could have been insured, and
without subjecting the other to subrogation claims of any insurer.
Notwithstanding anything to the contrary contained herein, Landlord
agrees Tenant may maintain the insurance required in sections 15 and 16 of this
Lease by blanket policies of insurance, provided, the insurance requirements in
this Lease are fulfilled and the insurance coverage is not diminished in any
way. In addition, Tenant shall be permitted to self-insure the risks set forth
in the second paragraph of this Section 16, provided Tenant or its Guarantor
maintains a net worth equal to at least Ten Million Dollars ($10,000,000.00).
17. EMINENT DOMAIN
If the Property, or any part thereof, are condemned under the power
of eminent domain, or sold by Landlord to a condemning authority under threat of
condemnation, this Lease shall terminate as to the part condemned on the date
title or possession vests in the condemning authority, whichever is first.
If any condemning authority notifies Landlord of a proposed
condemnation of any part of the Property, Landlord shall give Tenant written
notice of the proposed condemnation together with whatever plats and data are
furnished to Landlord by the condemnor concerning the extent of the proposed
condemnation. Tenant shall have fifteen (15) days after the date of such notice
in which to elect to cancel this Lease effective upon consummation of the
condemnation. If Tenant gives Landlord written notice of such election within
fifteen (15) days, and if the proposed condemnation is consummated, this Lease
shall terminate entirely on the same date that this Lease terminates as to the
condemned portion of the Property. If the Tenant does not make a timely election
to cancel this Lease, and the condemnation is consummated, Landlord may, at it's
sole discretion, elect to diligently pursue restoration of the remaining
Property as a complete architectural unit; and the rent shall thereafter be
reduced proportionately to the reduction in the area of the Property.
In the event of a condemnation, the entire award shall belong to
Landlord and Tenant shall not be entitled to share in any part of the
condemnation award (including consequential damages). Tenant shall, however, be
entitled to retain any separate award obtained from the condemning authority for
moving and relocation expenses and loss of trade fixtures, equipment and other
personal property, to the extent compensable without diminution of Landlord's
award.
18. DEFAULT
(a) Each of the following shall be deemed a default by Tenant
and a breach of this Lease.
(i) The filing of a petition by or against Tenant for
adjudication as a bankrupt under the Bankruptcy
Code, as now or hereafter amended or supplemented,
or for a reorganization within the meaning of the
Bankruptcy Code, or for an arrangement within the
meaning of the Bankruptcy Code, or the commencement
of any action or proceeding for the dissolution or
liquidation of Tenant, whether instituted by or
against Tenant, or for the appointment of a receiver
or trustee of the property of Tenant.
Notwithstanding the foregoing, Landlord shall grant
Tenant a sixty day period after any involuntary
bankruptcy filing to vacate said filing, provided,
Tenant is not past due in it's rental obligations
and all post filing rents are paid to Landlord in a
prompt manner;
(ii) The making by Tenant of an assignment for the
benefit of creditors.
(iii) The filing of a tax lien against Tenant's estate in
the Property not cured within thirty days after said
filing.
(iv) Failure of Tenant to pay to Landlord all delinquent
rentals within five (5) days after written notice by
Landlord to Tenant informing Tenant it is delinquent
in it's rental payment obligations; and
(v) A default by Tenant in the performance of any other
term, covenant, agreement or condition of this Lease
on the part of Tenant to be performed for a period
of thirty (30) days after notice thereof, unless
such performance shall reasonably require a longer
period in which case Tenant shall not be deemed in
default if Tenant commences the required performance
promptly and thereafter pursues and completes such
action diligently and expeditiously.
(b) In the event of a default of the nature set forth above,
Landlord may, at any time thereafter, at its election,
exercise it's right to take possession of the Property by
pursuing an action in appropriate courts within The State
of Maryland having jurisdiction over the lease and
Property to terminate this Lease and Tenant's right to
possession of the Property, and thereafter, pending court
approval shall take possession of the Property, and
remove Tenant, any occupants and any property therefrom,
without being guilty of or liable for trespass or damages
and without relinquishing any rights of Landlord against
Tenant.
(c) If this Lease is terminated pursuant to the above, Tenant
shall be liable to Landlord for rent and additional rent to
the date of termination, and for liquidated damages to be
calculated and payable as follows:
the monthly rent and additional rent payable by
Tenant hereunder, which shall be payable when due,
less the rent, if any, received by Landlord from
others to whom the Property may be rented on such
terms and conditions and at such rentals as
Landlord, in its sole discretion, shall deem proper.
In no event shall Tenant be entitled to excess rent,
if any, that Landlord may receive from any
substitute tenant; or, an amount equal to the
present value (as of the date of Tenant's default)
of all rent and additional rent which would have
become due during the remainder of the term of this
Lease, which liquidated damages shall be payable to
Landlord in one lump sum on demand. Notwithstanding
the foregoing, Landlord agrees it shall proceed in a
reasonable expeditious manner to pursue relet of the
Property with suitable, credit worthy (in Landlord's
sole judgement) third parties. Said relet efforts
shall be pursued in good faith by Landlord with the
intent of protecting it's interests while making
reasonable efforts to assuage Tenant's damages.
(d) The failure by Landlord to insist upon the performance of
any term, covenant or condition of this Lease or to exercise
any right or remedy consequent upon an unremedied breach
thereof, or the acceptance of full or partial rent during
the continuance of any unremedied breach, shall not
constitute a waiver of the performance of such term,
covenant or condition. No term, covenant or condition of
this Lease to be performed or complied with by Tenant, and
no unremedied breach thereof, shall be deemed waived,
altered or modified except by a written instrument executed
by Landlord. The waiver of any breach shall not affect or
alter this Lease, but each and every term, covenant and
condition shall continue in full force and effect with
respect to any other then existing or subsequent breach
thereof. Upon any default, Tenant waives all legal,
equitable and/or statutory rights to redeem its interest
under this Lease.
(e) In addition to the above, if Tenant defaults in the
performance or observance of any term, covenant or condition
to be performed under this Lease , and Tenant fails to
materially pursue rectification of said default with fifteen
days after written notice to Tenant of said default by
Landlord, Landlord may take any necessary action to rectify
the default on Tenant's behalf. Notwithstanding the
foregoing, if Landlord in it's sole reasonable judgement
deems the default of a nature requiring immediate
resolution, it may proceed immediately to rectify said
default. All money advanced and costs and expenses
reasonably incurred by Landlord in rectifying defaults,
together with interest thereon at the rate of twelve percent
(12%) per annum, shall be repaid by Tenant to Landlord
promptly upon demand.
(f) Each right and remedy of Landlord provided for in this Lease
shall be cumulative and shall be in addition to every other
right or remedy provided for herein or now or hereafter
existing at law, in equity, or by statute or otherwise, and
the exercise or beginning of the exercise by Landlord of any
one or more of the rights or remedies provided for in this
Lease, or now or hereafter existing at law, in equity, or by
statute or otherwise, shall not be construed as an election
of remedies so as to preclude the simultaneous or later
exercise of any other right or remedy for such breach. If
Landlord obtains a judgement against Tenant arising out of
any default by Tenant under this Lease, then Tenant shall
pay Landlord attorney's fees and other reasonable expenses
incurred by Landlord in connection therewith together with
interest thereon at the rate of twelve percent (12%) per
annum, and shall be repaid by Tenant to Landlord promptly
upon demand. If Tenant obtains a judgement against Landlord
arising out of any default by Landlord under this Lease,
then Landlord shall pay in addition to the amount of the
judgment with interest thereon, Tenant's attorney's fees and
other reasonable expenses incurred by Tenant in connection
therewith together with interest thereon at the rate of
twelve percent (12%) per annum promptly upon demand.
(g) The failure of Landlord to perform any obligation hereunder
after the applicable notice and cure period shall constitute
a default hereunder. If Landlord defaults hereunder, then
Tenant may pursue its rights at law and in equity, including
without limitation, exercise of its self-help remedies
provided in Section 9 hereof.
The failure by Tenant to insist upon the performance of any
term, covenant or condition of this Lease or to exercise any
right or remedy consequent upon an unremedied breach
thereof, shall not constitute a waiver of the performance of
such term, covenant or condition. No term, covenant or
condition of this Lease to be performed or complied with by
Landlord, and no unremedied breach thereof, shall be deemed
waived, altered or modified except by a written instrument
executed by Tenant. The waiver of any breach shall not
affect or alter this Lease, but each and every term,
covenant and condition shall continue in full force and
effect with respect to any other then existing or subsequent
breach thereof.
19. QUIET ENJOYMENT; ESTOPPEL; SUBORDINATION
Landlord covenants and agrees that Tenant, upon paying the rent and
all other charges provided for herein, and observing and keeping the terms,
covenants and conditions of this Lease on its part to be kept and performed,
shall lawfully and quietly hold, occupy and enjoy the Property during the term
of this Lease, free from any interference by Landlord or anyone claiming by,
through or under Landlord.
Upon request, Tenant shall promptly deliver to Landlord a signed and
acknowledged statement setting forth:
(i) that to the best of Tenant's knowledge, this Lease remains
unmodified, in full force and effect, free of existing
defaults and free of defenses against enforceability (or if
there have been modifications or defaults or if it claims
defenses against enforcement, then stating the
modifications, defaults and/or defenses);
(ii) the date to which rent and other charges have been paid, and
the amount of any advance rentals paid;
(iii) the beginning and ending dates of the term;
(iv) that to the best of Tenant's knowledge, there are no
outstanding claims (or if there are any claims, then stating
the nature and amount of the claim); and
Provided a non-disturbance agreement in form and substance
acceptable to Tenant as hereafter described is executed by any
applicable lender, this Lease shall be subject and subordinate to
the lien of any mortgage or deed of trust now existing upon the
Property and to any extensions, modifications or amendments thereto,
without the necessity of Tenant executing any instrument other than
this Lease. Landlord shall, within thirty (30) days following the
date of this Lease, obtain a subordination and non-disturbance
agreement from any existing mortgagee of Lakeside Business Park
and/or Lot 7, the form and content of which shall be subject to
Tenant's reasonable approval, and the obtaining of a non-disturbance
agreement, in such event, shall be a condition to the Lease. The
non-disturbance agreement shall provide that in the event of a
foreclosure, said mortgagee will agree to recognize the Lease and
not to disturb Tenant's use and occupancy of Lot 7 and/or the
Building so long as Tenant shall not be in default under the Lease.
Furthermore, Tenant agrees that the Lease shall be
subordinate to any future mortgage or deed of trust placed against
Lot 7 and that it will attorn to the future mortgagee upon
foreclosure of the mortgage or deed of trust, provided that the
mortgagee shall agree to honor and abide by the terms of the Lease
and give Tenant a non-disturbance agreement as hereinabove
described.
20. ASSIGNMENT
Tenant shall not assign this Lease or sublet the Property in whole
or in part, without the prior written consent of Landlord, which consent may not
be unreasonably withheld by Landlord. If Landlord consents to an assignment or
sublease, Tenant shall not be released of any of Tenant's obligations hereunder,
and in addition to any other consideration that may pass between the parties in
connection therewith, Tenant and any assignee or sublessee shall be deemed to
have covenanted not to make any further assignment or sublease without
Landlord's prior written consent. In the event of any assignment or subletting,
Landlord shall be entitled, and Tenant hereby assigns unto Landlord, fifty
percent (50%) of all sums payable by the assignee or sublessee, either as rent,
additional rent or other charge, in excess of the rent and additional rent
payable by Tenant hereunder less any reasonable expenses including leasing
commissions, tenant improvement expenses required pursuant to the assignment or
sublease, advertising expenses and other costs incurred by Tenant directly
attributable to it's efforts to assign or sublet the Property. Notwithstanding
the foregoing, if Tenant elects to assign or sublet the Property or a portion
thereof to any party which controls, is materially in control of the Tenant or
is under common control by Tenant, no excess rents or additional rents arising
from said assignment or sublease shall be payable to Landlord.
21. APPLICABLE LAW
This Lease shall be construed under the laws of the State of
Maryland. The parties acknowledge that this Lease has been drafted, negotiated,
delivered and consummated in the State of Maryland. Tenant consents to suit in
the state and federal courts of the State of Maryland on or with respect to the
Property and this Lease. Tenant hereby waives any objection to the venue of any
action filed in any state or federal court of Maryland, and waives any claim of
forum non conveniens or for transfer of any action to any other court. Service
of Process may be made upon Tenant in any action on or with respect to the
Property, or this Lease, by sending such process to Tenant in the manner and to
the address to which notices are sent under Section 22 hereof. Nothing herein
shall be deemed to preclude Landlord from obtaining Service of Process upon
Tenant in any other manner permitted by the laws and RULES OF COURT of the state
and federal courts of Maryland.
Landlord and Tenant each waive the right to trial by jury in any
action or suit brought pursuant to, under, or in connection with this Lease.
22. NOTICES
All notices, requests, demands or other communications with respect
to this Lease and the Property, shall be in writing, and shall be deemed to have
been duly given when mailed, postage prepaid, United States registered or
certified mail, or hand delivered, or sent by Federal Express, or other
nationally recognized courier service, with signed receipt.
(a) To Landlord, FRP Lakeside L.P., 00 Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000, Attn: Xx. Xxxxx xxXxxxxxxx, or
at such other address as Landlord may furnish to Tenant for
this purpose.
(b) To Tenant, Alcore Inc., 0000 Xxxxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxxx 00000, or at such other address as Tenant may
furnish to Landlord for this purpose.
(c) With a copy to: Ballard, Spahr, Xxxxxxx & Ingersoll, 000 X.
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Xxxx X.
Xxxxxxxxx-Xxxxx.
23. TENANT FINANCIAL STATEMENTS
Annually, no later than ninety (90) days after the end of Tenant's
fiscal year, Tenant shall furnish to Landlord a copy of Tenant's year-end
financial statements including income statements, balance sheets and statements
of cashflows. Landlord shall maintain Tenant's financial statements in a
confidential manner and shall not share the information contained therein with
any third parties, except for mortgagees, without Tenant's prior consent.
24. BROKERAGE
Tenant represents and warrants that there are no claims for
brokerage commissions or finder's fees in connection with the Lease other than
Xxxxxx X. Xxxxxxx (broker) in cooperation with KLNB Inc. pursuant to a separate
agreement between the Landlord and KLNB Inc., and hereby indemnifies and holds
Landlord harmless from all liabilities arising out of any other claimed
brokerage commissions or finder's fees (including, without limitation, the cost
of counsel fees in connection therewith).
25. SUCCESSORS AND ASSIGNS
Except as herein otherwise provided, this Lease and the terms,
covenants and conditions hereof, shall inure to the benefit of, apply to, and be
binding upon the parties and their successors and assigns. If Landlord transfers
its estate in the Property, or if Landlord further leases the Property subject
to this Lease, Landlord shall thereafter be relieved of all obligations of
Landlord arising after the assignment expressed in this Lease or implied by law,
provided the transferee recognizes the Lease and all obligations of the Landlord
contained within this Lease inclusive of terms and conditions contained within
Section 5 (Security deposit).
If Tenant obtains a money judgement against Landlord or Landlord's
successors or assigns under any provisions of, or with respect to this Lease or
on account of any matter, parties under this Lease, Tenant's occupancy of the
Property, or Landlord's ownership of the Property, Tenant shall be entitled to
have execution upon such judgement only upon Landlord's estate inclusive of it's
interest in the Property (or proceeds from the sale thereof) and not out of any
other assets of Landlord, or its successors or assigns, subject, however to the
second paragraph of Section 9 hereinabove; and Landlord shall be entitled to
have any judgement so qualified to constitute a lien only on said estate.
26. SURRENDER OF THE PROPERTY
At the expiration of the tenancy hereby created, or upon any
re-entry by Landlord pursuant to this Lease, Tenant shall, without notice to
quit which Tenant hereby waives, surrender the Property in the same condition as
the Property were upon completion of construction contemplated by Section 3
hereof, reasonable wear and tear excepted, and shall deliver all keys for the
Property to Landlord at the place then fixed for the payment of rent, and shall
inform Landlord of all combinations on locks, safes and vaults, if any, in the
Property. Tenant shall remove all of its trade fixtures and other personal
property, and any alterations, additions or improvements which Landlord requires
to be removed, before surrendering the Property, and shall repair any damage
caused by removal. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Lease.
If Tenant remains in possession of the Property after the expiration
of the term without the execution of a new lease, or a renewal or extension in
writing, Tenant shall be liable for all damages that Landlord may sustain by
virtue thereof, including but not limited to, any amount for which Landlord may
be liable under, or as the result of, any lease entered into by Landlord for a
term beginning at or after the expiration of the term. If, and while Tenant is
holding over, it shall continue to be subject to and shall perform all of the
conditions, provisions and obligations of this Lease except that Tenant shall
pay Landlord rent at an amount equal to one hundred fifty percent (150%) of the
rent provided to be paid hereunder immediately prior to the expiration of the
term, and Tenant shall continue to be a tenant until its tenancy shall be
terminated by Landlord, or until Tenant shall have given Landlord written notice
of at least one (1) full calendar month of its intention to terminate the
tenancy. Nothing contained in this Lease, however, shall be construed as a
consent by Landlord to the occupancy or possession of the Property by Tenant
after the expiration of the term, and Landlord, upon termination, shall be
entitled to the benefit of all public general or public local laws or ordinances
relating to the recovery of possession of lands and tenements held over by
tenants, that may now be in force or hereafter enacted.
27. RENEWAL OPTION
If the Tenant is not in default under this Lease or any of the
provisions hereof, Tenant may extend the term of this Lease for one (1)
successive period of five (5) years by providing written notice to Landlord of
it's intent to renew lease at least two hundred ten (210) days prior to
completion of the original lease term. Such rental shall be under the same terms
and conditions set forth within this Lease except that the annual rental for the
succeeding lease term shall be ninety five percent (95%) of the prevailing fair
market rent for the Property existing at the end of the initial lease term.
Operating costs payable by Tenant for the renewal term shall be equal to
Landlord's actual costs, plus twenty percent (20%) for administrative and
overhead costs.
Landlord's determination of fair market rent for the renewal term
("LANDLORD'S RATE") shall be submitted by Landlord to Tenant within thirty (30)
days after Landlord's receipt of Tenant's written notice of it's intent to renew
the lease. If Landlord fails to submit Landlord's Rate, then annual rent for the
Renewal Term shall be deemed to be 95% of rent payable in the last year of the
Term. If Tenant elects to contest Landlord's Rate, Tenant, at it's sole expense,
shall contract for and obtain a third party appraisal to determine the fair
market rental rate (inclusive of all improvements provided to the Property) of
the Property within thirty (30) days after Tenant's receipt of Landlord's Rate
("TENANT'S RATE"). Landlord shall, within fifteen (15) days after receipt of
Tenant's Rate, notify Tenant whether Tenant's Rate is acceptable. If Tenant's
Rate is unacceptable to Landlord, Landlord and Tenant shall determine within
five (5) days whether to continue negotiations if they both agree to do so, then
they shall select a mutually agreeable third party appraiser to perform an
additional appraisal (inclusive of all improvements to the Property) to
determine fair market rental rates applicable to the Property. In such event,
said selection must be made by both parties within five (5) business days
thereafter. The cost of such appraisal shall be borne equally by Landlord and
Tenant and said appraisal will be binding to both Tenant and Landlord PROVIDED,
that if such third appraisal exceeds Landlord's Rate or is less than Tenant's
Rate, the average of the three shall be the rental rate for the Renewal Term.
Annual rent over the renewal term shall be payable in advance in equal monthly
installments subject to the same penalties and conditions set forth for rents
due during the original lease period.
During the Renewal Term, actual operating costs and expenses (as
defined in Section 9 of this Lease) shall be determined by Landlord and billed
no less often than quarterly for such fiscal year as Landlord may adopt for such
purpose. Said xxxxxxxx shall include an itemized listing of costs incurred.
Payments shall be due from Tenant to Landlord within thirty (30) days after
receipt of remittance request from Landlord. Tenant may elect to audit
Landlord's books and records relating to operating costs and expenses. If it is
determined from said audit that Landlord has incorrectly billed for operating
costs and overhead, Landlord will be required to reimburse Tenant promptly for
said incorrect charges.
28. OWNERSHIP OF THE PROPERTY/DECLARATIONS OF COVENANTS
Landlord warrants and represents Landlord is fee owner of the
Building and that Landlord has the appropriate authority to enter into this
Lease. Tenant acknowledges that this Lease is subject to the Lakeside Business
Park Declaration of Covenants and Restrictions Land Use, Architectural Control
and Common Area and the Lakeside Business Park Declaration of Covenants,
Conditions and Restrictions Storm Water Management (collectively, the
"DECLARATIONS") which have been recorded prior to the Commencement Date, in the
form attached hereto as EXHIBITS E AND F, respectively.
29. FORCE MAJEURE
In the event that either party hereto shall be delayed, hindered or
prevented from the performance of any act required within this Lease (except for
the payment of rents or additional rents) by reason of any act not within the
reasonable control of the party delayed, hindered or prevented, including
strikes, lockouts, acts of god, enemy acts, civil commotion, labor troubles,
inability to procure materials, failure of power, restrictive government laws or
regulations, riots, insurrections, wars, legal injunctions, or other reasons of
a comparable nature not the fault of or within the reasonable control of the
delayed, hindered or prevented party, in performing the work or doing the acts
required under the terms of this Lease, then performance of said act shall be
excused for the period of the delay, hindrance or prevention and the performance
of any such act shall be extended without penalty for a period equivalent to the
period of such delay, hindrance or prevention.
30. RIGHT OF FIRST REFUSAL
If Landlord elects to sell the Property pursuant to a signed letter
of intent from third parties to purchase the Property inclusive of all material
terms and conditions of such sale, Landlord shall notify Tenant in writing of
the terms and conditions of the sale and shall furnish a copy of the executed
letter of intent to Tenant, and Tenant shall have ten (10) business days after
notice from Landlord to exercise a first right to acquire the Property under the
same terms and conditions indicated within the third party executed letter of
intent. If Tenant fails to respond or elect to purchase the Property pursuant to
the third party letter of intent, Landlord will be entitled to pursue sale of
the Property at it's sole election without further purchase rights available to
the Tenant, provided the sale is substantially in accordance with the terms and
conditions of the letter of intent provided to Tenant. If Landlord elects to
decline to sell the Property after receipt of the letter of intent and Tenant's
election to decline it's first right to purchase the Property, Tenant will
retain it's first right to purchase the Property for any subsequent offers made
by third parties. Nothing herein shall preclude Landlord from selling or
transferring ownership of the Property to it's subsidiaries or affiliates
without the granting of any first right to purchase to Tenant.
31. RECORDATION
Landlord or Tenant may record a memorandum of this Lease in the
public records. Upon the request of the recording party, the non-recording party
shall sign a recordable memorandum of lease containing the terms required by
statute and any other terms that the recording party reasonably elects to
include in the recordation. All costs related to any such recordation shall be
borne solely by the recording party.
This Lease contains the final agreement between the parties.
Landlord shall not have any obligation not expressly set forth herein; and
neither Landlord nor Tenant shall be bound by any problems or representations
prior to the date hereof which are not expressly set forth herein.
32. GUARANTY
This Lease is contingent upon the execution by Advanced Technical
Products, Inc. of the Guaranty attached hereto and incorporated herein as
EXHIBIT D.
33. EXHIBITS
The following Exhibits are attached hereto and incorporated herein:
Exhibit A Site Plan, depicting Access Easement and Loading
Dock Easement
Exhibit B Tenant's Space Plan
Exhibit B-1 Plans and Specifications
Exhibit C Commencement Agreement
Exhibit D Guaranty
Exhibit E Lakeside Business Park Declaration of Covenants
and Restrictions, Land Use Architectural Control
and Common Area
Exhibit F Lakeside Business Park Declaration of Covenants,
Conditions and Restrictions Storm Water Management
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
WITNESS: LANDLORD:
FRP LAKESIDE L.P.
BY: FRP Maryland, Inc.
its General Partner
/s/ XXXXXXXXX X. XXXX BY: /s/ XXXXX X. XXXXXXXXXX, XX.
Xxxxx X. xxXxxxxxxx, Xx., President
WITNESS: TENANT:
ALCORE INC.
BY: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx, President
EXHIBIT A
Site Plan depicting Access Easement
and Loading Dock Easement
EXHIBIT B
Tenant's Space Plan
EXHIBIT B-1
Plans and Specifications
EXHIBIT C
Commencement Agreement
EXHIBIT D
GUARANTY
EXHIBIT E
Lakeside Business Park Declaration of Covenants
and Restrictions Land Use, Architectural Control
and Common Area
EXHIBIT F
Lakeside Business Park Declaration of Covenants,
Conditions and Restrictions Storm Water Management
