EXHIBIT 10-a-14
THIS LEASE, made this 9th day of February, 1995, by and
between XXXXX X. XXXXXXX, hereinafter called "Landlord," and ACE
HARDWARE CORPORATION, hereinafter called "Tenant."
WITNESSETH, that in consideration of the rental
hereinafter agreed upon and the performance of all the conditions
and covenants hereinafter set forth on the part of the Tenant to be
performed, the Landlord does hereby lease unto the said Tenant, and
the latter does lease from the former the following premises
(hereinafter sometimes called the "premises"):
BEING those premises outlined in red on the Plat attached
hereto as Exhibit A, said premises being located within the building
known as 0000-0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000; 158,485
square feet; for the term of three (3) years, beginning on the first
day of April, 1995, and ending on the last day of March, 1998, at and
for the annual rental of REDACTED Dollars) payable in advance on the
first day of each and every month during the term of this Lease, in
equal monthly installments of REDACTED Dollars. Subject also to
the renewal option in Section 44. If the term of this Lease shall
commence on a date other than the first day of a month, the rental
for the period from the date of commencement of the term to the
first day of the first full calendar month of the term shall be
prorated and shall be payable on the first day of the term; if the
term of this Lease shall end on a date other than the last day of
a month, the rent for the period from the first day of the last
month of the term to the date the term ends shall be prorated and
shall be payable on the first day of the last month of the term.
All rentals shall be paid to Landlord at 0000 Xxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or at such other place
or to such appointee of the Landlord as the Landlord may from time
to time designate in writing.
This Lease is made subject to the following additional
terms, covenants and conditions:
1. Payment of Rental. Tenant covenants and agrees to pay
the rental herein reserved and each installment thereof promptly
when and as due, without setoff or deduction whatsoever.
2. Use. Tenant covenants and agrees to use and occupy the
premises solely for the following purposes:
GENERAL WAREHOUSING, DISTRIBUTION, OFFICE
Tenant agrees to comply with all applicable zoning and other laws
and regulations, and provide and install at its own expense any
additional equipment or alterations required to comply with all
such laws and regulations as required from time to time. Tenant
will not permit, allow or cause any public or private auction sales
or sheriffs' or constables' sales to be conducted on or from the
premises.
3. Utilities. Tenant agrees to pay as additional rent
Tenant's pro rata share of the water rent, sewer service charges
and public service electric costs covering the exterior common area
lighting chargeable to the total building in which the premises are
located, based upon the number of tenants occupying the same, and
not based upon the size of the premises in proportion to the total
square footage of the building. However, if in Landlord's sole
judgment, the water and sewer charges for the premises are
substantially higher than normal due to Tenant's water usage, then
Tenant agrees that it will, upon written notice from Landlord,
install a water meter at Tenant's expense and thereafter pay all
water charges for the premises based on such meter readings.
Tenant shall pay all costs of electricity, gas, telephone and other
utilities used or consumed on the premises, together with all
taxes, levies or other charges on such utilities. If Tenant
defaults in payment of any such utilities, charges or taxes,
Landlord may, at its option, pay the same for and on Tenant's
account, in which event Tenant shall promptly reimburse Landlord
therefor.
4. Compliance with Laws.
(a) Tenant covenants and agrees that it will, at its
own expense, observe, comply with and execute all laws, orders,
rules, requirements and regulations of any and all governmental
departments, bodies, bureaus, agencies and officers, and all
rules, directions, requirements and recommendations of the local
board of fire underwriters and the fire insurance rating
organizations having jurisdiction over the area in which the
premises are situated, or other bodies or agencies now or
hereafter exercising similar functions in the area in which the
premises are situated, in any way pertaining to the premises or
the use and occupancy thereof. In the event Tenant shall fail
or neglect to comply with any of the aforesaid laws, orders,
rules, requirements or recommendations, Landlord or its agents
may enter the premises and take all such action and do all
such work in or to the premises as may be necessary in order
to cause compliance with such laws, orders, rules, requirements
or recommendations, and Tenant covenants and agrees to
reimburse Landlord promptly upon demand for the expense
incurred by Landlord in taking such action and performing such
work.
(b) Without limiting the generality of paragraph (a)
hereof, regarding any improvements to the existing premises,
Tenant shall at all times keep the premises in compliance with
the Americans With Disabilities Act and its supporting regulations,
and all similar federal, state or local laws, regulations and
ordinances. In the event the space or building are required to
be modified to comply with ADA requirements, the cost of such
requirements shall be the responsibility of the Landlord,
provided the requirement is not due to the use of Tenant.
If Landlord's consent would be required for alterations to
bring the Premises into compliance, Landlord agrees not to
unreasonably withhold its consent.
5. Assignment and Subletting.
(a) Tenant covenants and agrees not to assign this Lease,
in whole or in part, nor sublet the premises, or any part or portion
thereof, nor grant any license or concession for all or any part thereof,
without the prior written consent of the Landlord in each instance first
had and obtained. Landlord's consent will not be unreasonably withheld.
If such assignment or subletting is permitted, Tenant shall not be
relieved from any liability whatsoever under this Lease. In the event
that the amount of the rent or other consideration to be paid to the
Tenant by any assignee or sublessee is greater than the rent required
to be paid by the Tenant to the Landlord pursuant to this Lease, Tenant
shall pay to Landlord any such excess as is received by Tenant from
such assignee or sublessee. Any consent by Landlord to an assignment
or subletting of this Lease shall not constitute a waiver of the
necessity of such consent as to any subsequent assignment or subletting.
An assignment for the benefit of Tenant's creditors or otherwise by
operation of law shall not be effective to transfer or assign Tenant's
interest under this Lease unless Landlord shall have first consented
thereto in writing.
(b) In the event this Lease contains a renewal option
exercisable by Tenant, Landlord's consent to an assignment or sublease
of the premises or any portion thereof during the original Lease term
shall be deemed to be conditioned upon the agreement of Tenant and such
assignee or sublessee that such renewal right or option shall terminate
and be of no further force or effect unless Landlord's consent to such
assignment or sublease expressly provides otherwise. Consequently,
unless so provided otherwise, any assignment or sublease during the
original Lease term shall automatically constitute a termination of
the right of Tenant or such assignee or sublessee to exercise any
renewal option contained herein.
6. Loading Capacity. Tenant covenants and agrees not to
load the premises beyond its present carrying or loading capacity.
7. Increase in Landlord's Insurance Rates. The Landlord
agrees to maintain insurance on the building throughout the Lease
term, sufficient to replace the building in the event of casualty
or loss. Tenant will not do, or suffer to be done, anything in or
about the premises, or keep or suffer to be kept, anything in or
about the premises which will contravene or affect any policy of
insurance against loss by fire or other hazards, including, but not
limited to, public liability, now existing or which the Landlord
may hereafter place thereon, or which will prevent the Landlord
from procuring such policies in companies acceptable to Landlord at
standard rates. Tenant will, at Tenant's sole expense, take
reasonable actions and make any installations or alterations as may
be necessary to obtain a reasonable possible reduction in the
insurance rates for the premises and the building in which the
premises are located (or, if the premises are a part of a building,
any increase in the premium of any insurance on said entire
building) caused by the occupancy of Tenant, the nature of the
business carried on by Tenant in the premises, or otherwise
resulting from any act of Tenant, its agents, servants, employees
or customers, or anything done or suffered to be done by Tenant,
its agents, servants, employees or customers. However, Tenant may
elect to pay the cost of such insurance increase rather than pay
for the alteration to the premises.
8. Insurance - Indemnity.
(a) Tenant covenants and agrees that from and after the
date of delivery of the premises from Landlord to Tenant, Tenant
will carry and maintain, at its sole cost and expense and in the
amounts specified and in the form hereinafter provided, the
following types of insurance:
(i) Public Liability and Property Damage. General
Public Liability Insurance covering the premises and Tenant's use
thereof against claims for personal injury or death and property
damage occurring upon, in or about the premises, such insurance to
afford protection to the limit of not less than $2,000,000 arising
out of any one occurrence, and against property damage to afford
protection to the limit of not less than $2,000,000; or such
insurance may be for a combined single limit of $2,000,000 per
occurrence. The insurance coverage required under this Section
8(a)(i) shall, in addition, extend to any liability of Tenant
arising out of Tenant's indemnities hereinafter provided, as well
as Independent Contractors' Liability, Products/Completed
Operations Liability, Personal Injury Liability and Contractual
Liability.
(ii) Tenant Improvements and Property. Insurance
covering all leasehold improvements and other improvements
installed by Tenant upon the premises, trade fixtures and personal
property from time to time in, on or upon the premises and any
alterations, improvements, additions or changes made by Tenant
thereto in an amount not less than one hundred percent (100%) of
their full replacement cost from time to time during the Lease
term, providing protection against perils included within the
standard Maryland form of fire and extended coverage insurance
policy, together with insurance against sprinkler leakage or other
sprinkler damage, vandalism and malicious mischief. Any policy
proceeds from such insurance, so long as this Lease shall remain in
effect, shall be held in trust by Tenant's insurance company first
for the repair, reconstruction, restoration or replacement of the
property damaged or destroyed.
(b) All policies of insurance to be provided by Tenant
shall be issued in form acceptable to Landlord by insurance
companies with general policyholder's rating of not less than B++
and a financial rating of B++ as rated in the most current
available "Best's" Insurance Reports, and qualified to do business
in Maryland. Each such policy shall be issued in the names of
Landlord and Tenant. Said policies shall be for the mutual and
joint benefit and protection of each of said parties and executed
copies of each such policy of insurance or a certificate thereof
shall be delivered to Landlord within ten (10) days after delivery
of possession of the premises to Tenant and thereafter at least
fifteen (15) days prior to the expiration of each such policy. As
often as any such policy shall expire or terminate, renewal or
additional policies shall be procured and maintained by Tenant in
like manner and to like extent. All such policies of insurance
shall contain a provision that the company writing said policy will
give to Landlord at least thirty (30) days' notice in writing in
advance of any cancellations, or lapse, or the effective date of
any reduction in the amounts of insurance. In the event Tenant
shall fail to promptly furnish any insurance herein required,
Landlord may effect the same for a period not exceeding one (1)
year and Tenant shall promptly reimburse Landlord upon demand, as
additional rent, the premium so paid by Landlord. If, upon
Tenant's failure, rather than purchase separate insurance coverage,
Landlord chooses to include Tenant's coverage under Landlord's
insurance policies, then Tenant shall promptly reimburse Landlord
upon demand, as additional rent, the greater of the increase in
Landlord's premium resulting therefrom or One Thousand Dollars
($1,000.00). All such public liability, property damage and other
casualty policies shall be written as primary policies which do not
contribute to and are not in excess of coverage which Landlord may
carry. All such public liability and property damage policies
shall contain a provision that Landlord shall nevertheless be
entitled to recover under said policies for any loss occasioned to
it, its servants, agents and employees by reason of the negligence
of Tenant or any other named assured. Any insurance provided for
may be affected by a policy or policies of blanket insurance,
covering additional items or locations; provided, however, that (i)
Landlord shall be named as an additional assured thereunder as its
interests may appear; (ii) the coverage afforded Landlord will not
be reduced or diminished by reason of the use of such blanket
policy of insurance; (iii) any such policy or policies (except any
covering the risks referred to in paragraph [i]), shall specify
therein (or Tenant shall furnish Landlord with a written statement
from the insurers under such policy specifying) the amount of the
total insurance allocated to the "Tenant Improvements and Property"
more specifically detailed in paragraph (iii), above; and (iv) the
requirements set forth herein are otherwise satisfied. Any
insurance policies herein required to be procured by Tenant shall
contain an express waiver of any right of subrogation by the
insurance company against the Landlord, and all other tenants or
occupants of space in the building.
(c) Tenant shall, and does hereby, indemnify and hold
harmless Landlord and any other parties in interest set forth in
paragraph (b), above, from and against any and all liabilities,
fines, claims, damages and actions, costs and expenses of any kind
or nature (including attorneys' fees) and of anyone whatsoever (i)
relating to or arising from the use and occupancy of the premises;
(ii) due to or arising out of any mechanic's lien filed against the
building, or any part thereof, for labor performed or for materials
furnished or claimed to be furnished to Tenant, or (iii) due to or
arising out of any breach, violation or nonperformance of any
covenant, condition or agreement in this Lease set forth and
contained on the part of Tenant to be fulfilled, kept, observed or
performed, unless such damage or injury shall be occasioned by the
negligence or willful act or omission of the Landlord, in which
event, Landlord shall indemnify and hold harmless Tenant to the
extent of such negligence or willful act or omission.
Notwithstanding the foregoing, Tenant shall at all times remain
liable for, and indemnify and hold harmless Landlord as aforesaid
against, any damage or injury arising from perils against which
Tenant is required by this Lease to insure, regardless of the
negligence or willful act or omissions of others.
9. Alterations. Tenant shall not make any alterations to
the premises, or any part thereof, without prior written consent of
Landlord in each instance first had and obtained. If Tenant shall
desire to make such alterations, plans for the same shall first be
submitted to and approved by Landlord, and all work and
installations shall be performed by Tenant at its own expense in
accordance with approved plans. Tenant agrees that all such work
shall be done in a good and workmanlike manner, that the structural
integrity of the building shall not be impaired, and that no liens
shall attach to the premises by reason thereof. Tenant agrees to
obtain, at Tenant's expense, all permits required for such
alterations.
10. Ownership of Alterations. Unless Landlord shall elect
that all or part of any alteration made by Tenant to the premises
(including any alteration consented to by Landlord pursuant to
paragraph 9 hereof) shall remain on the premises after the
termination of this Lease, the premises shall be restored to their
original condition by Tenant before the expiration of this Lease at
Tenant's sole expense. Upon such election by Landlord, any such
alterations, improvements, betterments or mechanical equipment,
including but not limited to, heating and air conditioning systems,
shall become the property of Landlord as soon as they are affixed
to the premises, and all right, title and interest thereof of
Tenant shall immediately cease, unless otherwise agreed to in
writing by Landlord. Tenant shall promptly pay any franchise,
minor privilege or other tax or assessment resulting directly or
indirectly from any alterations or improvements made by Tenant to
the premises. Tenant shall repair promptly, at its own expense,
any damage to the premises caused by bringing into the premises any
property for Tenant's use, or by the installation or removal of
such property, regardless of fault or by whom such damage shall be
caused.
11. Repairs and Maintenance.
(a) The premises hereby leased are leased to Tenant "as
is." Except as herein expressly provided, Landlord shall be under
no liability, nor have any obligation to do any work or make any
repairs in or to the premises, and any work which may be necessary
to outfit the premises for Tenant's occupancy or for the operation
of Tenant's business therein is the sole responsibility of Tenant
and shall be performed by Tenant at its own cost and expense.
Tenant acknowledges that it has fully inspected the premises prior
to the execution of this Lease, and Tenant further acknowledges
that Landlord has made no warranties or representations with
respect to the condition or state of repairs of the premises.
(b) Tenant will, during the term of this Lease, keep the
premises and appurtenances (including windows, doors, plumbing,
heating and electrical facilities and installations) in good order
and repair and will make all necessary repairs thereof at its own
expense, except that Landlord will make all necessary repairs
(except painting) to the exterior masonry walls and roof of the
premises, after being notified in writing by Tenant of the need for
such repairs, and shall have a reasonable time in which to complete
such repairs. Tenant agrees to carry a maintenance and/or service
agreement or policy on the HVAC system in the demised premises.
This agreement or policy shall be carried throughout the term of
this Lease and any renewals or extensions hereof. Tenant shall
provide Landlord with a copy of such policy or a certificate
evidencing such coverage. In the event that the repairs required
to be made by Landlord are necessitated as a result of negligence
or misuse by Tenant, its agents, servants, employees, licensees or
guests, or by any contractor engaged by or on behalf of Tenant,
such repairs shall be made by and be paid for by Tenant. Tenant
shall also maintain any driveways and parking areas designated for
its exclusive use. Tenant will, at the expiration of the term or
at the sooner termination thereof by forfeiture or otherwise,
deliver up the premises in the same good order and condition as
they were at the beginning of tenancy, reasonable wear and tear
excepted. Tenant further agrees that it will maintain the premises
at its own expense in a clean, orderly and sanitary condition, free
of insects, rodents, vermin, and other pests; and that it will not
permit undue accumulation of garbage, trash, rubbish or other
refuse, but will remove the same at its own expense and will keep
such refuse in proper containers within the interior of the
premises until called for to be removed. Tenant further agrees
that it will not install any additional electrical wiring or
plumbing unless it has first obtained Landlord's written consent
thereto, and, if such consent is given, Tenant will install the
same at its own cost and expense, and Tenant shall obtain, at
Tenant's expense, all permits required for such installation.
(c) In the event Tenant shall not proceed promptly and
diligently to make any repairs or perform any obligation imposed
upon it by subparagraphs (a) and (b) hereof within forty-eight (48)
hours after receiving written notice from Landlord to make such
repairs or perform such obligation, then and in such event,
Landlord may, at its option, enter the premises and do and per-
form the things specified in said notice, without liability on the
part of Landlord for any loss or damage resulting from any such
action by Landlord, and Tenant agrees to pay promptly upon demand
any cost or expense incurred by Landlord in taking such action.
12. Tax and Insurance Escalation.
(a) The premises hereby leased comprise approximately
one hundred percent (100%) of Merchant Drive No. 7 and thirty-five
and five tenths percent (35.5%) of Merchant Drive Nos. 1-6 of the
total land and/or building(s) within which the premises are
located. Landlord agrees to provide Tenant with copies of the
appropriate tax or insurance xxxx.
(b) Tenant covenants and agrees to pay Landlord, as
additional rent, one hundred percent (100%) of Merchant Drive
No. 7 and thirty-five and five tenths percent (35.5%) of Merchant
Drive Nos. 1-6 of any increase in real estate taxes assessed
against the land and/or building(s) in excess of the taxes for the
1995/1996 fiscal year whether as a result of an increase in the tax
rate, or the levy, assessment or imposition of any tax on real
estate as such not now levied, assessed or imposed, which payment
shall be due and payable within fifteen (15) days after Landlord's
written demand. The foregoing shall apply to increases in real
estate taxes assessed against the land or building(s) generally,
and not resulting from improvements placed thereon by Tenant. In
the event of any increases in real estate taxes resulting from
improvements, alterations or additions made by Tenant, Tenant shall
pay the entire amount of said increase. If this Lease shall be in
effect for less than a full fiscal year, Tenant shall pay a pro
rata share of taxes, based upon the number of months that this
Lease is in effect. "Taxes" as used herein shall include, but not
by way of limitation, all paving taxes, special paving taxes,
Metropolitan District charges, and any and all other benefits or
assessments which may be levied on the premises or the land or
building(s) in which the same are situate, but shall not include
any income tax on the income or rent payable hereunder. "Taxes"
shall also include all reasonable expenses incurred by Landlord
(including attorneys' fees and costs) in contesting any increase
in, or applying for any reduction of, a tax assessment.
(c) Tenant also covenants and agrees to pay Landlord, as
additional rent, one hundred percent (100%) of Merchant Drive
No. 7 and thirty-five and five tenths percent (35.5%) of Merchant
Drive Nos. 1-6 of any increase in insurance premiums (as
hereinafter defined) in excess of the annualized premiums for the
most recent policy period prior to the commencement of this lease,
which payment shall be due and payable within fifteen (15) days
after Landlord's written demand. As used herein, "insurance
premiums" means the total premium cost of all insurance carried by
Landlord with respect to the total land and building(s) within
which the premises are located, including, but not limited to, all
Real Property and Rental Value perils insured against under an "All
Risk" insuring agreement, primary General Liability insurance and
Umbrella and/or Excess Liability insurance.
13. Default.
(a) Any of the following events shall constitute a
default by Tenant:
(i) If the rent (basic or additional) shall be in
arrears, for a period of ten (10) days in whole or in part; or
(ii) If Tenant shall have failed to perform any
other non-rent related term, condition, or covenant of this Lease
on its part to be performed for a period of thirty (30) days after
notice of such failure from Landlord; or
(iii) If the premises are vacant, unoccupied or
deserted for a period of fifteen (15) days or more at any time
during the term; or
(iv) If Tenant is adjudicated a bankrupt or
insolvent by any court of competent jurisdiction, or if any such
court enters an order, judgment or decree finally approving any
petition against Tenant seeking reorganization, liquidation,
dissolution or similar relief or if a receiver, trustee, liquidator
or conservator is appointed for all or substantially all of
Tenant's assets and such appointment is not vacated within ten (10)
days after the appointment, or if Tenant seeks or consents to any
of the relief hereinabove enumerated in this subparagraph (iv) or
files a voluntary petition in bankruptcy or insolvency or makes an
assignment of all or substantially all of its assets for the
benefit of creditors or admits in writing of its inability to pay
its debts generally as they come due or files Articles of
Dissolution, or similar writing indicating its intention to wind up
or liquidate its business, with the appropriate authority of the
place of its incorporation; or
(v) If Tenant's leasehold interest under this Lease
is sold under execution, attachment or decree of court to satisfy
any debt of Tenant, or if any lien (including a mechanic's lien) is
filed against Tenant's leasehold interest and is not discharged
within ten (10) days thereafter. Tenant may elect to provide
Landlord with a bond in the amount of such lien in lieu of having
the lien discharged. However, tenant must have any liens
discharged prior to Landlord refinancing the building, selling the
building or Tenant's lease expiring.
(b) In the event of default as defined in paragraph (a)
hereof, Landlord, in addition to any and all legal and equitable
remedies it may have, shall have the following remedies:
(i) To distrain for any rent or additional rent in
default; and
(ii) At any time after default, without notice, to
declare this Lease terminated and enter the premises with or
without legal process; and in such event Landlord shall have the
benefit of all provisions of law now or hereafter in force
respecting the speedy recovery of possession from Tenant's holding
over or proceedings in forcible entry and detainer, and Tenant
waives any and all provisions for notice under such laws.
Notwithstanding such reentry and/or termination, Tenant
shall immediately be liable to Landlord for the sum of the
following: (a) all rent and additional rent then in arrears,
without apportionment to the termination date, including Tenant's
contribution to taxes under paragraph 12 for the year of
termination, whether such termination is before or after July lst
of such year; (b) all other liabilities of Tenant and damages
sustained by Landlord as a result of Tenant's default, including,
but not limited to, the reasonable costs of reletting the premises
and any broker's commissions payable as a result thereof; (c) all
of Landlord's costs and expenses (including reasonable counsel
fees) in connection with such default and recovery of possession;
(d) the difference between the rent reserved under this Lease for
the balance of the term and the fair rental value of the premises
for the balance of the term to be determined as of the date of
reentry; or at Landlord's option in lieu thereof, Tenant shall pay
the amount of the rent and additional rent reserved under this
Lease at the times herein stipulated for payment of rent and
additional rent for the balance of the term, less any amount
received by Landlord during such period from others to whom the
premises may be rented on such terms and conditions and at such
rentals as Landlord, in its sole discretion, shall deem proper;
and (e) any other damages recoverable by law. In the event
Landlord brings any action against Tenant to enforce compliance by
Tenant with any covenant or condition of this Lease, including the
covenant to pay rent, and it is judicially determined that Tenant
has defaulted in performing or complying with any such covenant or
condition, then and in such event, Tenant shall pay to Landlord all
costs and expenses incurred by Landlord in bringing and prosecuting
such action against Tenant, including a reasonable attorney's fee.
(c) In the event Tenant fails to pay Landlord any ren-
tal payment or other charge due hereunder within ten (10) days from
the date on which any such payment was due, Landlord may, at its
option, charge Tenant a late charge equal to five percent (5%) of
the rental payment or other such charge, which late charge shall be
collectible as additional rent and shall be payable by Tenant to
Landlord within ten (10) days after written notice from Landlord to
Tenant assessing the same. In addition, any such rental payment or
other charge which is delinquent for ten (10) days or more, shall
bear interest from the date on which same was due at the prime rate
of interest then being charged by NationsBank to its most favored
commercial customers.
14. Damage or Destruction.
(a) If, during the Lease term, the premises hereby
leased are damaged by fire or other casualty, but not to the extent
that Tenant is prevented from carrying on business in the premises,
Landlord shall promptly cause such damage to be repaired; if such
damage renders a substantial portion of the premises untenantable,
the rent reserved hereunder (except Tenant's share of any charges
for water) shall be reduced during the period of its untenantability
proportionately to the amount by which the area so rendered
untenantable bears to the entire area leased hereunder, and such
reduction shall be apportioned from the date of the casualty to
the date when the leased premises are rendered fully tenantable.
Notwithstanding the foregoing, in the event such fire or other
casualty damages or destroys any of Tenant's leasehold improvements,
alterations, betterments, fixtures or equipment, Tenant shall cause
the same to be repaired or restored at Tenant's sole cost and expense
and Landlord shall have no liability for the restoration or repair
thereof.
(b) If, during the Lease term, the premises or a
substantial portion of the building in which the premises is
situated are rendered wholly untenantable as the result of fire,
the elements, unavoidable accident or other casualty, Landlord
shall have the option either to restore the premises to their
condition immediately prior to the casualty or to terminate this
Lease, such option shall be exercised by Landlord by written notice
to Tenant within thirty (30) days after the fire, accident or
casualty. In the event of such termination, the rent reserved
hereunder shall be adjusted as of the date of the fire, accident or
casualty. If Landlord elects to restore the premises, such
restoration shall be completed as promptly and reasonably as
possible and the rent reserved hereunder shall xxxxx until the
premises are again rendered tenantable. In no event will the
required improvement take more than one hundred twenty (120) days
in which case Tenant's lease may be terminated.
15. Possession. In case possession of the premises, in whole
or in part, cannot be given to Tenant on or before the
commencement of the term of this Lease, Landlord agrees to xxxxx the
rent proportionately until possession is given to Tenant, and
Tenant agrees to accept such pro rata abatement as liquidated
damages for the failure to obtain possession on the commencement
date herein specified. The parties hereto covenant and agree that
if the term of this Lease commences on a date other than the date
herein specified, they will, upon the request of either of them,
execute an agreement in recordable form setting forth the new
commencement and termination dates of the Lease term. Under no
circumstances shall Landlord be under any liability for failure to
deliver possession of the premises to Tenant on the date herein
specified. In the event Landlord's improvements are not completed
within one hundred twenty (120) days of the anticipated
commencement, Tenant may terminate the Lease.
16. Exterior of Premises - Signs.
(a) Tenant covenants and agrees that it will not place
or permit any sign, billboard, marquee, lights, awning, poles,
placard, advertising matter, or other thing of any kind, in or
about the exterior of the premises or the building in which the
premises are situate, nor paint or make any change in, to or on the
exterior of said premises to change the uniform architecture, paint
or appearance of the building, without in each such instance
obtaining the prior written consent of Landlord. In the event such
consent is given, Tenant agrees to pay any minor privilege or other
tax arising as a result of any such installation immediately when
due. Tenant shall obtain, at Tenant's expense, all permits
required for such installation. Tenant further agrees to maintain
any sign, billboard, marquee, awning, decoration, placard, or
advertising matter or other thing of any kind as may be approved by
Landlord in good condition and repair at all times. Landlord has
attached a copy of Landlord's sign criteria as Exhibit "B".
(b) Tenant further covenants and agrees not to pile or
place anything on the sidewalk, parking lot or other exterior
portion of the premises or building or in the front, rear or sides
of the building, nor block the sidewalk, parking lot or other
exterior portion of the premises or building, nor do anything that
directly or indirectly will interfere with any of the rights of
ingress or egress or of light from any other tenant, nor do
anything which will, in any way, change the uniform and general
design of any property of Landlord in which the premises are
situate. In the event this Lease covers all or substantially all
of an entire building, Tenant agrees to keep all sidewalks, steps
and porches free and clear of ice, snow and debris.
17. Relocation. Landlord reserves the right at its option
and at Landlord's sole cost and expense (including all moving
expenses of Tenant) to relocate the premises hereby leased to
another area within the building or group of buildings in which the
premises hereby leased is located provided such new location shall
be comparable to the premises hereby leased or to comparable space
in another location and provided Landlord gives Tenant thirty (30)
days prior written notice of such relocation.
18. For Rent/Sale Signs. Landlord shall have the right to
for six (6) months prior to termination of this Lease, show the
premises and all parts thereof to prospective tenants between the
hours of 9:00 a.m. and 5:00 p.m. on any day except Sunday or any
legal holiday on which Tenant shall not be open for business.
Whenever possible, Landlord will provide Tenant with prior written
notice.
19. Water and Other Damage. Landlord shall not be liable
for, and Landlord is hereby released and relieved from, all claims
and demands of any kind by reason of or resulting from damage or
injury to person or property of Tenant or any other party, directly
or indirectly caused by (a) dampness, water, rain or snow, in any
part of the premises or in any part of any other property of
Landlord or of others, and/or (b) falling plaster, steam, gas,
electricity, or any leak or break in any part of the premises or
from any pipes, appliances or plumbing or from sewers or the street
or subsurface or from any other place or any part of any other
property of Landlord or of others or in the pipes of the plumbing
or heating facilities thereof.
20. Right of Entry. Landlord and its agents, servants,
employees, including any builder or contractor employed by
Landlord, shall have the absolute and unconditional right, license
and permission, at any and all reasonable times, to enter and
inspect the premises or any part thereof, and at the option of
Landlord, to make such reasonable repairs and/or changes in the
premises as Landlord may deem necessary or proper and/or to enforce
and carry out any provision of this Lease. Landlord agrees to
enter the premises during normal business hours, and provide prior
notice when possible and in non-emergency situations.
21. Termination of Term.
(a) It is agreed that the term of this Lease shall
expire and terminate at the end of the original term hereof (or at
the expiration of the last renewal term, if this Lease contains a
renewal option and the same is properly exercised), without the
necessity of any notice by or to any of the parties hereto, unless
otherwise provided herein. If Tenant shall occupy the premises
after such expiration or termination, it is understood that Tenant
shall hold the premises as a tenant from month-to-month, subject to
all the other terms and conditions of this Lease, at an amount
equal to double the highest monthly rental installment reserved in
this Lease. Landlord shall, upon such expiration or termination of
this Lease, be entitled to the benefit of all public general or
local laws relating to the speedy recovery of possession of lands
and tenements held over by Tenants that may be now in force or may
hereafter be enacted.
(b) At the time Tenant surrenders the premises to
Landlord, the premises shall be in compliance with all applicable
building code requirements insofar as such requirements relate to
Tenant's use and occupancy of the premises or to any installations,
alterations or improvements made by Tenant thereto.
22. Condemnation.
(a) If, during the term of this Lease, all or a
substantial part of the premises shall be taken by or under power
of eminent domain, this Lease shall terminate as of, and the rent
(basic and additional) shall be apportioned to and xxxxx from and
after, the date of taking. Tenant shall have no right to
participate in any award or damages for such taking and hereby
assigns all of its right, title and interest therein to Landlord.
For the purposes of this paragraph, "a substantial part of the
premises" shall mean such part that the remainder thereof is
rendered inadequate for Tenant's business and that such remainder
cannot practicably be repaired and improved so as to be rendered
adequate to permit Tenant to carry on its business with
substantially the same efficiency as before the taking.
(b) If, during the Lease term, less than a substantial
part of the premises (as hereinabove defined) is taken by or under
power of eminent domain, this Lease shall remain in full force and
effect according to its terms; and Tenant shall not have the right
to participate in any award or damages for such taking and Tenant
hereby assigns all of its right, title and interest in and to the
award to Landlord. In such event Landlord shall, at its expense,
promptly make such repairs and improvements as shall be necessary
to make the remainder of the premises adequate to permit Tenant to
carry on its business to substantially the same extent and with
substantially the same efficiency as before the taking; provided
that in no event shall Landlord be required to expend an amount in
excess of the award received by Landlord for such taking. If, as
a result of such taking, any part of the premises is rendered
permanently unusable, the basic annual rent reserved hereunder
shall be reduced in such amount as may be fair and reasonable,
which amount shall not exceed the proportion which the area so
taken or made unusable bears to the total area which was usable by
Tenant prior to the taking. If the taking does not render any part
of the premises unusable, there shall be no abatement of rent.
(c) For purposes of this section, "taking" shall include
a negotiated sale or lease and transfer of possession to a
condemning authority under bona fide threat of condemnation for
public use, and Landlord alone shall have the right to negotiate
with the condemning authority and conduct and settle all litiga-
tion connected with the condemnation. As hereinabove used, the
words "award or damages" shall, in the event of such sale or
settlement, include the purchase or settlement price.
(d) Nothing herein shall be deemed to prevent Tenant
from claiming and receiving from the condemning authority, if
legally payable, compensation for the taking of Tenant's own
tangible property and such amount as may be payable by statute or
ordinance toward Tenant's damages for Tenant's loss of business,
removal and relocation expenses.
23. Subordination. Tenant covenants and agrees that all of
Tenant's rights hereunder are and shall be subject and subordinate
to the lien of any first mortgage hereafter placed on the leased
premises or any part thereof, except the Tenant's property or trade
fixtures, and to any and all renewals, modifications,
consolidations, replacements, extensions or substitutions of any
first mortgage. Such subordination shall be automatic, without the
execution of any further subordination agreement by Tenant. If,
however, a written subordination agreement, consistent with this
provision, is required by a mortgagee, Tenant agrees to execute,
acknowledge and deliver the same. Landlord agrees to provide
Tenant with a Lender approved non-disturbance agreement.
24. Landlord's Right to Perform Tenant's Covenants. If
Tenant shall fail to perform any covenant or duty required of it by
this Lease or by law, Landlord shall have the right (but not the
obligation) to perform the same, and if necessary to enter the
premises for such purposes without notice. The reasonable cost
thereof to Landlord shall be deemed to be additional rent hereunder
payable by Tenant, and Landlord shall have the same rights and
remedies with respect to such additional rent as Landlord has with
respect to the rental reserved hereunder.
25. Attornment.
(a) If Landlord assigns this Lease or the rents
hereunder to a creditor as security for a debt, Tenant shall, after
notice of such assignment and upon demand by Landlord or the
assignee, pay all sums thereafter becoming due Landlord hereunder
both to Landlord and such assignee. Tenant shall also, upon
receipt of such notice, have all policies of insurance required
hereunder endorsed so as to protect the assignee's interest as it
may appear and shall deliver such policies, or certificates
thereof, to the assignee.
(b) If, at any time during the term of this Lease, the
Landlord of the leased premises shall be the holder of a leasehold
estate covering premises which include the leased premises, and if
such leasehold shall terminate or be terminated for any reason, or
if, at any time during the term of Lease a mortgage to which this
Lease is subordinate shall be foreclosed, Tenant agrees at the
election and upon demand of any owner of the premises which include
the leased premises, or of any mortgagee in possession thereof, or
of any holder of a leasehold thereafter affecting premises which
include the leased premises, or of any purchaser at foreclosure, to
attorn, from time to time, to any such owner, mortgagee, holder or
purchaser upon the terms and conditions set forth herein for the
remainder of the term demised in this Lease. Provided however,
that Tenant shall not be obligated to attorn unless, if Tenant
shall so request in writing, such holder, owner, mortgagee or
purchaser shall execute and deliver to Tenant an instrument wherein
said holder, owner, mortgagee or purchaser agrees that so long as
Tenant performs all the terms, covenants and conditions of this
Lease, on Tenant's part to be performed, Tenant's possession under
the provisions of this Lease shall not be disturbed by such holder,
owner, mortgagee or purchaser.
(c) The foregoing provisions shall inure to the benefit
of any such owner, mortgagee, holder or purchaser and shall apply
notwithstanding that this Lease may terminate upon the termination
of any such leasehold estate or upon such foreclosure, and shall be
self-operative upon any such demand, without requiring any further
instrument to give effect to such provisions. Tenant, however upon
demand of any such owner, mortgagee, holder or purchaser, agrees to
execute, from time to time an instrument in confirmation of the
foregoing provisions, satisfactory to any such owner, mortgagee,
holder or purchaser, in which Tenant shall acknowledge such
attornment and set forth herein and shall apply for the remainder
of the term originally demised in this Lease.
26. Non-Waiver of Future Enforcement. The receipt of rent by
Landlord, with knowledge of any breach of this Lease by Tenant or
of any default on the part of Tenant in the observance or per-
formance of any of the conditions or covenants of this Lease, shall
not be deemed to be a waiver of any provisions of this Lease. No
failure on the part of Landlord or of the Tenant to enforce any
covenant or provision herein contained nor any waiver of any right
hereunder by Landlord or Tenant, shall discharge or invalidate such
covenant or provision or affect the right of Landlord or Tenant to
enforce the same in the event of any subsequent default. The
receipt by Landlord of any rent or any sum of money or any other
consideration hereunder paid by Tenant after the termination, in
any manner, of the term herein demised, or after the giving by
Landlord of any notice hereunder to effect such termination, shall
not reinstate, continue or extend the term herein demised, or
destroy, or in any manner impair the efficacy of any such notice of
termination as may have been given hereunder by Landlord to Tenant
prior to the receipt of any such sum of money or other
consideration, unless so agreed to in writing and signed by
Landlord. Neither acceptance of the keys nor any other act or
thing done by Landlord or any agent or employee during the term
herein demised shall be deemed to be an acceptance of a surrender
of said premises, excepting only an agreement in writing signed by
Landlord accepting or agreeing to accept such surrender.
27. Personal Property Taxes. Tenant shall be responsible for
and shall pay any taxes or assessments levied or assessed during
the term of this Lease against any leasehold interest of Tenant or
personal property or trade fixtures of Tenant of any kind, owned by
Tenant or placed in, upon or about the premises by Tenant.
28. Recordation of Lease. Tenant agrees that it will, upon
Landlord's request, and Landlord agrees that it will upon Tenant's
request, execute a Memorandum of the Lease in a form suitable for
recording under applicable Maryland law. The party recording such
Memorandum of Lease shall pay all costs of recordation, including
transfer taxes and documentary stamp taxes hereon.
29. Notices. Any notice required by this Lease shall be sent
by certified mail or by a recognized overnight delivery service
such as Federal Express with a receipt by addressee to Landlord at:
0000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000. Any notice
required by this Lease shall be sent by certified mail to Tenant
at: 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000 OR Xxxxxx Xxxxxx
(000) 000-0000 Emergency if no other address specified, such notices
to Tenant shall be addressed to the leased premises. Either party may,
at any time, or from time to time, designate in writing a substitute
address for that above set forth, and thereafter all notices to such party
shall be sent by certified mail to such substitute address.
30. Waiver of Jury Trial.
THE LANDLORD AND THE TENANT WAIVE ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, COUNTERCLAIM, OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS LEASE. THIS WAIVER APPLIES
TO ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS AND PROCEEDINGS,
INCLUDING PARTIES WHO ARE NOT PARTIES TO THIS LEASE. THIS WAIVER
IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY THE TENANT AND
THE TENANT ACKNOWLEDGES THAT NEITHER THE LANDLORD, NOR ANY PERSON
ACTING ON BEHALF OF THE LANDLORD, HAS MADE ANY REPRESENTATIONS OF
FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY
OR NULLIFY ITS EFFECT. THE TENANT FURTHER ACKNOWLEDGES THAT IT HAS
BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN
THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, IN THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
THE TENANT FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS
THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION AND AS
EVIDENCE OF THIS FACT SIGNS ITS INITIALS.
__________________________
(initials of tenant)
31. Severability.
If any terms, clause or provision of this Lease is
declared invalid by a court of competent jurisdiction, the vali-
dity of the remainder of this Lease shall not be affected thereby
but shall remain in full force and effect.
32. Non-Waiver. It is understood and agreed that nothing
herein shall be construed to be a waiver of any of the terms,
covenants or conditions herein contained, unless the same shall be
in writing, signed by the party to be charged with such waiver and
no waiver of the breach of any covenant herein shall be construed
as a waiver of such covenant or any subsequent breach thereof. No
mention in this Lease of any specific right or remedy shall
preclude Landlord from exercising any other right or from having
any other remedy or from maintaining any action to which it may be
otherwise entitled either at law or in equity.
33. Successors and Assigns. Except as herein provided, this
Lease and the covenants and conditions herein contained shall inure
to the benefit of and 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. In the event more than one
person, firm or corporation is named herein as Tenant, the
liability of all parties named herein as Tenant shall be joint and
several.
In the event Landlord's interest under this Lease is
transferred or assigned and written notice thereof is given to
Tenant, the Landlord herein named (or any subsequent assignee or
transferee of Landlord's interest under this Lease who gives such
notice to Tenant) shall automatically be relieved and released from
and after the date of such transfer or conveyance from all
liability hereunder. Further, Tenant specifically agrees to look
solely to Landlord's interest in the building for the recovery of
any judgment from Landlord, it being agreed that Landlord shall
never be personally liable for any such judgment. The provision
contained in the foregoing sentence is not intended to, and shall
not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in
interest or any other action not involving the personal liability
of Landlord to respond in monetary damages from assets other than
Landlord's interest in the building or any suit or action in
connection with enforcement or collection of amounts which may
become owing or payable under or on account of insurance maintained
by Landlord.
34. Security Deposit. Landlord hereby acknowledges receipt
from Tenant of the sum of_______N/A_____________($___N/A____) which
sum represents a security deposit for the faithful performance of
Tenant's obligations under this Lease.
Tenant agrees that Landlord shall have the right, but not
the obligation, in its sole discretion and without notice to Tenant
to apply said security deposit or any portion thereof to cure or
remedy any default by Tenant hereunder, including default in
payment of rent. If Landlord so applies the security deposit or
any portion thereof Tenant shall, upon demand, immediately
reimburse Landlord for the portion of the security deposit so
applied; and any failure of Tenant to do so within five (5) days
after Landlord's demand therefor shall constitute an event of
default hereunder. Said sum, if not sooner applied, shall be
returned to Tenant, without interest, within thirty (30) days after
vacating of the premises by Tenant and termination of this Lease
(or upon termination of the last renewal term of this Lease if this
Lease contains a renewal and Tenant exercises said option);
provided (i) Tenant is not then in default under any of the
provisions of this Lease; (ii) there is no damage to the premises
beyond ordinary wear and tear and the premises have been left in a
clean condition and in good order with all debris, rubbish and
trash placed in proper containers; (iii) all keys to the premises
have been returned to the Landlord; and (iv) Tenant's forwarding
address has been left with Landlord.
Tenant further agrees that Landlord shall be entitled to
commingle said security deposit with its own funds.
Tenant further agrees that a mortgagee or holder of a
deed of trust on the premises hereby leased and/or a mortgagee or
trust holder thereof in possession of said premises and/or a
purchase of said premises at a foreclosure sale shall not have any
liability to Tenant for Tenant's security deposit.
35. Notices to Mortgagee. Tenant agrees that a copy of any
notice of default from Tenant to Landlord shall also be sent to the
holder of any mortgage or deed of trust on the premises; provided
Tenant has been given written notice of the fact that such mortgage
or deed of trust has been made; and Tenant shall allow said
mortgagee or holder of the deed of trust a reasonable time, not to
exceed ninety (90) days from the receipt of said notice, to cure,
or cause to be cured, any such default. If such default cannot
reasonably be cured within the time specified herein, then such
additional time as may be necessary shall be allowed, provided the
curing of such default is commenced and diligently pursued
(including, but not limited to, commencement of foreclosure
proceedings if necessary to effect such cure) in which event this
Lease shall not be terminated while such remedies are being thus
diligently pursued.
36. Estoppel Certificate. Tenant shall, at any time and from
time to time during the term of this Lease or any renewal thereof,
upon request of Landlord, execute, acknowledge, and deliver to
Landlord or its designee, a statement in writing, certifying that
this Lease is unmodified and in full force and effect if such is
the fact (or if there have been any modifications thereof, that the
same is in full force as modified and stating the modifications),
the dates to which the rents and other charges have been paid in
advance, if any, and any defaults or claimed defaults by Landlord.
Any such statement delivered pursuant to this paragraph may be
relied upon by any prospective purchaser of the estate of Landlord
or by the mortgagee or any assignee of any mortgagee or the trustee
or beneficiary of any deed of trust constituting a lien on the
premises or upon property in which the premises are situate.
37. Environmental Provisions.
(a) Tenant and its successors and assigns shall use and
operate the building, the property and the leased premises,
respectively, at all times during the term hereof, under and in
compliance with the laws of the State of Maryland and in compliance
with all applicable Environmental Legal Requirements.
"Environmental Legal Requirements" shall mean any applicable law
relating to public health, safety or the environment, including,
without limitation, relating to releases, discharges or omissions
to air, water, land or groundwater, to the withdrawal or use of
groundwater, to the use and handling of polychlorinated biphenyls
("PCB's") or asbestos, or asbestos containing products, to the
disposal, treatment, storage or management of solid or other
hazardous or harmful wastes or to exposure to toxic, hazardous or
other harmful materials (collectively "Hazardous Substances") to
the handling, transportation, discharge or release of gaseous or
liquid substance and any regulation or final order or directive
issues pursuant to such statute or ordinance, in each case
applicable to the premises, the building or its operation,
construction or modification, including without limitation the
following: the Clean Air Act, the Federal Water Pollution Control
Act ("FWPCA"), the Safe Drinking Water Act, the Toxic Substances
Control Act, the Comprehensive Environmental Response Compensation
and Liability Act, as amended by the Solid and Hazardous Waste
Amendments of 1984 ("RCRA"), the Occupational Safety and Health
Act, the Emergency Planning and Community Right-to-Know Act of
1986, the Solid Waste Disposal Act, and any state statutes
addressing similar matters, and any state statute providing for
financial responsibility for clean-up or other actions with respect
to the release or threatened release of any of the above-referenced
substances.
(b) Tenant hereby indemnifies and saves Landlord
harmless from all liabilities and claims arising from the use,
storage or placement of any Hazardous Substances upon the premises
or elsewhere within the Building or property of Landlord (if
brought or placed thereon by Tenant, its agents, employees,
contractors or invitees); and Tenant shall (i) within fifteen (15)
days after written notice thereof, take or cause to be taken, at
its sole expense, such actions as may be necessary to comply with
all Environmental Legal Requirements and (ii) within fifteen (15)
days after written demand therefor, reimburse Landlord for any
amounts expended by Landlord to comply with any Environmental
Requirements with respect to the premises or with respect to any
other portions of Landlord's Building or property as the result of
the placement or storage of Hazardous Substances by Tenant, its
agents, employees, contractors or invitees, or in connection with
any judicial or administrative investigation or proceeding relating
thereto, including, without limitation, reasonable attorneys' fees,
fines or other penalty payments.
(c) For purposes of this provision, Tenant shall be
presumptively deemed to have violated the Environmental Legal
Requirements if (i) any notice or order is directed to either
Landlord or Tenant by any governmental agency, body, or court
alleging that such violation has occurred; or (ii) if Landlord
obtains and delivers to Tenant a report prepared by an engineer or
other party engaged in the business of testing or determining the
existence of Hazardous Substances, which report states that there
are Hazardous Substances used, stored or placed upon the premises.
In the event Tenant is deemed to have violated any of the
Environmental Legal Requirements as set forth in the preceding
sentence, then Tenant shall have a reasonable period of time to
cure such violation, which need not exceed sixty (60) days. If
Tenant fails to cure such violation, then Landlord shall have the
right and option, after fifteen (15) days prior written notice to
Tenant, to terminate this lease by written notice thereof to
Tenant, in which event Landlord shall retain all rights and
remedies, and Tenant shall be subject to all liabilities, set forth
in Article 13 of this lease notwithstanding such termination.
(d) Tenant hereby grants Landlord, and Landlord's agents
and employees (including but not limited to, any engineers or other
parties engaged in the testing of Hazardous Substances) the right
to enter upon the premises for the purpose of determining whether
Tenant, its agents, employees, contractors or invitees, has
violated any of the provisions of this Section.
(e) As of the lease date the premises is in compliance
with environmental legal requirements, and the Landlord agrees to
indemnify the tenant for any liability for non-compliance or
pre-existing conditions that occurred prior to lease commencement.
38. Captions. The captions of the various sections of this
Lease are for convenience only and are not a part of this Lease.
Such captions shall not be construed to define or limit any of the
provisions of this Lease.
39. Lender's Approval. It is understood and agreed that this
Lease and the obligations of the parties hereunder are subject to
written approval of Landlord's lender, and that this Lease is not
binding upon either Landlord or Tenant unless Landlord receives
such written approval from Landlord's lender. Landlord will advise
Tenant promptly upon its receipt of approval or disapproval from
Landlord's lender. In the event Tenant has not been notified
within five (5) days of lease execution of lender's consent, the
lease will be deemed by Landlord and Tenant to have been approved
by Lender.
40. Final and Entire Agreement. This Lease contains the
final and entire agreement between the parties hereto, and neither
they nor their agents shall be bound by any terms, conditions or
representations not herein written.
41. Tenant Representative. The name, address and telephone
number of Tenant's representative to be contacted in event of
emergency: Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx
42. Additional Rent.
All sums of money required to be paid by Tenant to
Landlord pursuant to the terms of this Lease, unless otherwise
specified herein, shall be considered additional rent and shall be
collectible by Landlord as additional rent, in accordance with the
terms of this Lease. Nothing herein contained shall be deemed to
suspend or delay the payment of any amount of money or charge at
the time the same becomes due and payable hereunder or to limit any
other remedy of Landlord.
43. Landlord's Work.
The Tenant space is to be provided in an "as-is"
condition except for the following items to be performed by
Landlord at Landlord's cost:
A. Replace existing dock doors that are in poor
condition.
B. Install sixteen (16) new dock doors.
C. Remove the existing office with the exception of what
is shown on the attached plan.
D. Install a security fence around the entire property
with a card accessed gate for access after dark.
E. Clean and seal the warehouse floor.
AS WITNESS the hands and seals of the parties hereto the
date and year first above written.
WITNESS: XXXXX X. XXXXXXX
BY: THE XXXXXXX OPERATIONS CORPORATION,
AGENT
__________________________ __________________________(SEAL)
LANDLORD
WITNESS: ACE HARDWARE CORPORATION
__________________________ __________________________(SEAL)
TENANT
RENEWAL OPTION RIDER TO LEASE BETWEEN XXXXX X. XXXXXXX, LANDLORD AND
ACE HARDWARE CORPORATION, TENANT. THE FOLLOWING NEW SECTION 44 IS
HEREBY ADDED TO THE ATTACHED LEASE:
44. Renewal Options.
If Tenant is not then in default under this Lease or
any of the provisions hereof, Tenant may extend the term of this
Lease for one (1) additional successive period of two (2) years
each, by notifying Landlord in writing of its intention to do so at
least one hundred eighty (180) days prior to the expiration of the
then current term. Each such renewal term shall be under the same
terms and conditions as are herein set forth except that the annual
rental for each succeeding renewal term shall be as follows:
(a) REDACTED Dollars payable in equal monthly
installments of REDACTED Dollars.
All said rental shall be payable in advance in equal
monthly installments on the 1st day of each month during said
renewal term, without setoff or deduction.
There shall be no additional right to renew or extend this Lease
except as provided herein. AS WITNESS the hands and seals of the
parties hereto simultaneously with the execution of the attached Lease.
WITNESS: XXXXX X. XXXXXXX
BY: THE XXXXXXX OPERATIONS CORPORATION, AGENT
________________________
BY:______________________(SEAL)
TITLE:______________________
Landlord
WITNESS: ACE HARDWARE CORPORATION
________________________
BY:______________________(SEAL)
TITLE:______________________
Tenant
TABLE OF CONTENTS FOR LEASE BETWEEN
XXXXX X. XXXXXXX, LANDLORD
AND ACE HARDWARE CORPORATION, TENANT.
1. Payment of Rental 1
2. Use 2
3. Utilities 2
4. Compliance with Laws 2
5. Assignment and Subletting 3
6. Loading Capacity 4
7. Increase in Landlord's
Insurance Rates 4
8. Insurance - Indemnity 5
9. Alterations 8
10. Ownership of Alterations 9
11. Repairs and Maintenance 9
12. Tax and Insurance Escalation 11
13. Default 12
14. Damage or Destruction 15
15. Possession 16
16. Exterior of Premises - Signs 16
17. Relocation 17
18. For Rent/Sale Signs 17
19. Water and Other Damage 17
20. Right of Entry 18
21. Termination of Term 18
22. Condemnation 18
23. Xxxxxxxxxxxxx 00
00. Landlord's Right to Perform
Tenant's Covenants 20
25. Attornment 20
26. Non-Waiver of Future
Enforcement 22
27. Personal Property Taxes 22
28. Recordation of Lease 22
29. Notices 23
30. Waiver of Jury Trial 23
31. Severability 24
32. Non-Waiver 24
33. Successors and Assigns 24
34. Security Deposit 25
35. Notices to Mortgagee 26
36. Estoppel Certificate 27
37. Environmental Provisions 27
38. Captions 29
39. Lender's Approval 29
40. Final and Entire Agreement 29
41. Tenant Representative 29
42. Additional Rent 29
43. Landlord's Work 30
44. Renewal Options 31
THIS FIRST AMENDATORY LEASE AGREEMENT made this 21st day of
February, 1995, by and between XXXXX X. XXXXXXX, (hereinafter
called "Landlord") and ACE HARDWARE CORPORATION, (hereinafter
called "Tenant").
EXPLANATORY STATEMENT
By lease (hereinafter called the "Lease") dated February
9, 1995, Landlord leased to Tenant, and the latter rented from the
former, certain premises within the building known as 0000-0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000. The parties desire to amend
the Lease as hereinafter set forth. NOW, THEREFORE, AND IN
CONSIDERATION of the mutual covenants and agreement herein contained,
the parties hereto hereby covenant and agree as follows: 1. Tenant
will hereby lease an additional 30,150 square feet located at 0000
Xxxx Xxxxxxxx Xxxxxx for a period of two (2) months, commencing
February 17, 1995. 2. The rent for the premises will be REDACTED
Dollars per month. 3. Except as herein provided, the Lease shall remain
unchanged and in full force and effect.
IN WITNESSETH WHEREOF, the parties hereto have executed
the within Amendatory Lease Agreement as of the day and year first
above written.
WITNESS: ACE HARDWARE CORPORATION
________________________
BY:____________________ (SEAL)
Tenant
ATTEST: XXXXX X. XXXXXXX
BY: XXXXXXX OPERATIONS CORPORATION, AGENT
________________________
BY:____________________ (SEAL)
Landlord
SECOND AMENDATORY LEASE AGREEMENT
THIS SECOND AMENDATORY LEASE AGREEMENT, made this day of
, 1995, by and between XXXXX X. XXXXXXX ("Landlord"),
and ACE HARDWARE CORPORATION ("Tenant"). EXPLANATORY STATEMENT By
Lease dated February 9, 1995, Landlord leased to Tenant, and Tenant
rented from Landlord, certain premises within the building known as
0000-0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, which premises
are more specifically set forth in Exhibit A to said February 9, 1995
Lease (the "Premises");
By First Amendatory Lease Agreement, dated February 21, 1995, Landlord
and Tenant amended the terms and conditions of the February 9, 1995
Lease, as more specifically set forth in said First Amendatory Lease
Agreement (the February 9, 1995 Lease and the First Amendatory Lease
Agreement are hereinafter collectively referred to as the "Lease");
The parties hereto desire to modify the Lease as hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, of the good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
1. Alteration to Premises. Upon the full execution of this
Agreement, Landlord shall, at Landlord's expense, install twenty-
one (21) edges of docks and twenty-one (21) dock seals at and upon
the Premises, at a total cost of REDACTED Dollars.
2. Additional Dock Rental. Commencing August 1, 1995, and
on the first day of the succeeding thirty-one (31) remaining months
of the term of the Lease, Tenant shall pay to Landlord, in addition
to all Rent and Additional Rent to be paid by Tenant to Landlord
pursuant to the terms and conditions of the Lease, an Additional
Dock Rental payment of REDACTED Dollars.
3. Except as herein provided, all terms and conditions of
the Lease shall remain unchanged and in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed this Second
Amendatory Lease Agreement under seal as of the day and year first
written above.
WITNESS/ATTEST:
XXXXX X. XXXXXXX
By: Xxxxxxx Operations Corporation, Agent
________________________________
By:_____________________________ (SEAL)
LANDLORD
ACE HARDWARE CORPORATION
________________________________
By:_____________________________ (SEAL)
TENANT
