1
EXHIBIT 10.12
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, entered into by and between
XXXXXX X. XXXXXX
hereinafter referred to as the "LANDLORD", and
UP-RIGHT AERIAL PLATFORMS
hereinafter referred to as the "TENANT".
1.1 Premises. Landlord does hereby lease to Tenant and Tenant does
hereby lease from Landlord, upon the following terms and conditions, the
premises described as follows:
The building known as 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx
Xxxxxx'x Xxxxxx, Maryland, containing approximately 9,200 square feet of gross
floor area, situate on and together with approximately 61,139 square feet of
land described as part of Lots 10, 11, 12, 13, 20 and 21 and Xxxx 00, 00 xxx 00,
Xxxxx 03, Section 56, in the "Beltsville" subdivision, as shown on the site plan
which is attached hereto and incorporated herein as Exhibit "I", zoned Heavy
Industrial (I-2), said land and all improvements thereon being hereinafter
referred to as the "Premises."
1.2 Term. The term of this Lease shall be for Five (5) years,
commencing on the first day of March, 1993, and ending on the last day of
February, 1998.
Notwithstanding the foregoing, provided this Lease is fully executed,
Tenant shall have the right to use and occupy the Premises for the period
November 1, 1992, through February 28, 1993. Tenant shall not be required to pay
rent for such period, however, Tenant shall pay all utilities and other charges
and additional rents pursuant to this Lease, and shall carry public liability
insurance as provided in Section 3.7 hereof.
If Tenant holds over and is in possession of the Premises at the end of
the term or any renewal of this Lease, then the tenancy under this Lease shall
become month-to-month upon all of the same terms and conditions contained in
this Lease, at the rental rate then in effect and such tenancy shall be
terminable by either party upon Thirty (30) days written notice to the other
party.
Provided the Tenant is not then in default under this Lease, Tenant
shall have the right to renew this Lease for Three (3) additional terms of Five
(5) years each by giving written notice to Landlord exercising this option to
renew not later
2
than 120 days prior to expiration of the preceding term or renewal hereof. Any
renewal of this Lease shall be upon the same terms and conditions herein
provided, except that the rent payable by the Tenant during each year of the
renewal period shall be adjusted as provided in Section 1.3 hereof.
1.3 Rent. Rent for the period March 1, 1993, through February 28, 1994,
shall be the sum of SIXTY-NINE THOUSAND AND NO/100 DOLLARS ($69,000.00) per
annum ("Base Annual Rent"), payable to the Landlord in equal monthly
installments of FIVE THOUSAND SEVEN HUNDRED FIFTY AND NO/100 DOLLARS ($5,750.00)
("Base Monthly Rent"). Base Annual Rent for the period March 1, 1994, through
February 28, 1998, shall be increased annually effective on March 1st of each
year by adding to the Base Annual Rent payable during the immediately preceding
Lease year (the "Previous Annual Rent") an amount equal to the product obtained
by multiplying the Previous Annual Rent by Four Per Cent (4%). The Base Annual
Rent as increased yearly shall be payable to Landlord in equal monthly
installments.
Provided Tenant properly exercises its option to renew as set forth in
Section 1.2 hereof, Base Annual Rent for the first year of the first renewal
period shall be the sum of EIGHTY THOUSAND SIX HUNDRED EIGHTY-FIVE AND NO/100
DOLLARS ($80,685.00), payable in equal monthly installments of SIX THOUSAND
SEVEN HUNDRED TWENTY-THREE AND 76/100 DOLLARS ($6,723.76). Thereafter, Base
Annual Rent for each year of each renewal period shall be increased annually
effective on March 1st of each year by adding to the Previous Annual Rent an
amount equal to the product obtained by multiplying the Previous Annual Rent by
Four and One-Half Per Cent (4.5%). The Base Annual Rent as increased yearly
shall be payable to Landlord in equal monthly installments.
The rent shall be payable in advance on the first day of each month
without demand, setoff or abatement, to Xxxxxx X. Xxxxxx, at 00000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or such other place as may be designated by
Landlord in writing. Tenant shall pay the Base Monthly Rent for the first full
month hereof promptly upon execution of this Lease.
Tenant agrees to pay to Landlord a late fee equal to the sum of Five
Per Cent (5%) of any monthly rent installment which is not paid to Landlord
within Ten (10) business days of the date on which said monthly installment of
rent is due and payable.
It is mutually agreed that payments made by check which do not clear
the bank cause additional expenses for bookkeeping and clerical services. Tenant
agrees that any such check issued for payments due hereunder which is returned
without payment for any reason whatsoever, shall carry a charge of TWENTY-FIVE
AND NO/100 DOLLARS ($25.00) for each time said check is returned, which sum
shall be considered as additional rent hereunder, and
-2-
3
shall be paid by Tenant to Landlord immediately upon notice thereof.
2.1 Security Deposit. Tenant shall deposit with Landlord upon execution
of this Lease, the sum of FIVE THOUSAND SEVEN HUNDRED FIFTY AND NO/100 DOLLARS
($5,750.00) as a security deposit for the faithful performance of Tenant's
obligations under this Lease, and Landlord may apply all or any part of said
security deposit to cure any failure by Tenant to faithfully perform Tenant's
obligations under this Lease. The security deposit shall not be considered an
advance payment of rent or a measure of Landlord's damages in the event of
default by Tenant.
2.2 Utilities. Tenant shall arrange for all utilities to be in Tenant's
name and Tenant shall promptly pay to the utility companies all bills for
electricity, gas, fuel oil, telephone, water and sewer service used in the
Premises. Tenant shall maintain a level of heat in the Premises which shall
insure that the pipes and plumbing fixtures will not freeze and break, and
Tenant shall be responsible for any repairs and replacements to said pipes and
fixtures and any damage to the Premises and any personal property arising from
freezing pipes and fixtures. In the event Tenant fails to pay such utility
bills, Landlord may, but shall not be obligated to pay same, and proceed to
collect all amounts so paid from Tenant as additional rent.
2.3 Real Estate Taxes. Tenant shall pay to Landlord, as additional
rent, 100% of any increase in the real estate taxes payable by Landlord for the
entire property and building of which the Premises are a part, over and above
the taxes payable for the tax year ending June, 1993. A tax xxxx shall be
sufficient evidence of the amount of the taxes imposed on the property, and
taxes shall include any front foot benefit charges, refuse collection charges,
State, County, WSSC, M-NCPPC, and School Board taxes. Tenant shall pay its share
of any increases, whether attributable to an increase in the rate, a new tax,
reassessment of the property or any other reason. Tenant's share of the taxes
shall be paid as additional rent within Ten (10) days after demand by Landlord.
2.4 Fire and Extended Coverage Insurance. During the entire term and
any renewal of this Lease, Tenant shall pay to Landlord, as additional rent,
100% of all increases in the premium for fire and extended coverage insurance on
the Premises pursuant to insurance policies to be obtained by Landlord in an
amount and upon terms satisfactory to Landlord. Tenant's share of any increases
in the fire and extended coverage insurance premiums shall be paid as additional
rent within Ten (10) days after demand by Landlord.
2.5 Use. Tenant shall use the Premises solely for the purpose of
office/warehouse use. Tenant shall comply with all ordinances, statutes, laws,
orders, rules and regulations now in effect or which may hereafter be enacted,
by the municipal,
-3-
4
county, state and federal governments. Tenant will not use, permit or suffer to
be used, the Premises for any disorderly or unlawful purpose. Tenant shall
operate and maintain the Premises and all real and personal property therein in
good, safe and sanitary condition. No part of the Premises shall be used as a
residence, and no animals of any kind shall be kept on the Premises.
Immediately upon final execution hereof by Landlord and Tenant, Tenant
shall apply to Prince George's County, Maryland, for a Use & Occupancy Permit.
The cost of application and processing said permit shall be paid by Tenant.
Tenant shall diligently pursue issuance of said Permit at the earliest possible
date. In the event that any repairs, improvements or alterations are required by
governmental authorities as conditions to issuance of said Use & Occupancy
Permit, Landlord shall make repairs, alterations and improvements with respect
to improvements performed by Landlord pursuant to Section 2.6 hereof at
Landlord's sole cost and expense. In no event shall Landlord have any liability
whatsoever for any failure to obtain a Use & Occupancy Permit or for any
consequences resulting from such failure. In the event said Use & Occupancy
Permit is not issued within Ninety (90) days following the date of final
execution of this Lease, provided Tenant has diligently pursued issuance of said
Permit, Tenant may, at Tenant's option, terminate this Lease by written notice
to Landlord within said Ninety (90) day period, whereupon all monies deposited
with Landlord shall be returned to the Tenant, and the parties shall be relieved
of any further liability hereunder.
2.6 Repairs and Improvements. On or before November 1, 1992, Landlord
shall, at Landlord's expense, make improvements to the Premises as set forth on
Exhibit "II" which is attached hereto and incorporated herein. Landlord shall
deliver the Premises with all mechanical, electrical and plumbing systems and
equipment in good working order.
Landlord shall be responsible for maintenance and repair of the roof,
exterior walls, foundation, downspouts, gutters and structural elements of the
building of which the Premises are a part, unless such repair or maintenance is
necessitated by any act or neglect of Tenant or anyone acting by, through or
under Tenant.
Except as provided in the preceding paragraph, Tenant shall promptly
repair at Tenant's expense any damage to the Premises and to any equipment,
systems and facilities therein, and will make all replacements thereto, whether
such repairs and replacements be necessitated by ordinary wear and tear or other
event of any kind, except a Casualty as provided in Section 3.2 hereof. Without
limiting the generality of the foregoing, Tenant's maintenance, repair and
replacement responsibilities shall include the interior of the Premises, all
doors, windows, and loading docks, if any, and all electrical, mechanical,
-4-
5
plumbing, heating, ventilating, air conditioning, security, fire prevention and
sprinkler systems and equipment, if any, presently or hereafter installed in the
Premises. Tenant has had an opportunity to inspect the Premises and is leasing
the Premises "AS IS", without any representation, warranty or covenant by the
Landlord or Agent respecting the suitability of the Premises for Tenant's use
thereof or the condition of the Premises or any element thereof.
Tenant shall pay all expenses of operating and maintaining the
Premises, including, but not limited to, expenses for refuse removal, janitorial
services, carpet cleaning, and painting. Upon vacating the Premises, Tenant
shall surrender the Premises in as good condition as the same were at the
commencement of Tenant's original tenancy, excepting normal wear and tear and
damage caused by a Casualty as provided in Section 3.2 hereof, unless such
Casualty is caused by the negligence or intentional acts of Tenant or anyone
acting by, through or under Tenant.
Tenant shall not make any structural changes or alterations to the
Premises or install any equipment which may necessitate any changes or addition
to, or overload or require the extraordinary use of, any utilities or any
electrical, plumbing, or mechanical systems serving the Premises, without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. Unless otherwise agreed in writing, at the conclusion of
Tenant's occupancy of the Premises, any alterations, improvements and fixtures
installed by Tenant in the Premises, at Landlord's option, shall either become
the property of Landlord or be removed at Tenant's expense, in which event the
Premises shall be restored by Tenant to their condition existing at commencement
of this Lease.
Landlord agrees to indemnify and hold harmless the Tenant from any
pre-existing or current condition on the property of which the Premises are a
part concerning the presence of (i) any "Hazardous Waste Substance" as defined
by the Resource Conservation and Recovery Act of 1976 (or regulations
thereunder) as later amended, (ii) any "Hazardous Substance" as defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(or regulations thereunder) as later amended, (iii) any "Hazardous Substance" as
defined in the Maryland Health Environmental Code, Title 7, Subtitle 2 (or
regulations thereunder) as later amended, and (iv) any "Substance" (including
asbestos) the presence, maintenance or storage of which on the Premises is
prohibited by law.
Tenant shall not allow, permit, or cause the generation, use,
accumulation, storage, treatment, transportation, disposal, release or threat of
release of "Hazardous Waste Substance" as defined in the preceding paragraph and
agrees to indemnify and hold harmless the Landlord from any such condition
during the term and any renewals of this Lease.
-5-
6
2.7 Parking. Tenant shall have the exclusive use of the parking area
serving the Premises, provided that any such use shall be at the sole risk of
Tenant and Tenant hereby agrees to indemnify and hold harmless Landlord from and
against any and all claims, actions, damages and liability in connection with
such use by Tenant and anyone acting by, through or under Tenant. Tenant shall
keep clean and promptly remove all snow and ice from said parking areas and the
sidewalks in front of the Premises. Tenant shall maintain at Tenant's expense
any grass and landscaping appurtenant to the Premises and to the parking area
serving the Premises.
2.8 Notices. All notices hereunder shall be made in writing and shall
be hand delivered or mailed by Registered or Certified U.S. Mail, Return Receipt
Requested, First Class, postage prepaid, to the parties hereto at their
respective addresses set forth below, or at such other address of which either
party shall notify the other in accordance with the provisions hereof. Any
notice required to be given hereunder on or before a specified date shall be
deemed to have been duly and timely given if hand delivered before 5:00 P.M. on
such date, or when given by mail as aforesaid, if postmarked before Midnight on
such date. Notices given by mail shall be addressed:
IF TO LANDLORD: WITH A COPY TO:
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxx
00000 Xxxxxx Xxxxx Xxxxx and Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 The Xxxxxxx Companies, Inc.
0000 Xxxxxxxxx Xxx., Xxx. 000
Xxxxxxx Xxxx, Xxxxxxxx 00000
IF TO TENANT:
Up-Right Aerial Platforms
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
2.9 Brokerage. Landlord recognizes the firm of The Xxxxxxx Companies,
Inc. (herein referred to as the "Agent") as the procuring cause of the Tenant
and this Lease. In consideration of Agent's services in procuring the Tenant,
Landlord agrees to pay Agent, its successors and assigns a leasing commission of
Five Per Cent (5%) of all base rent due and payable, or any assignee or
subtenant of Tenant, during the full term of this Lease, and any renewals and
extensions hereof, including any renewals or extensions on a month to month
basis, for the Premises and any additional space later leased by Landlord to
Tenant upon the same or any other terms, whether in the same building or any
other location. Said leasing commission shall be payable 50% upon occupancy by
the Tenant and 50% on the Commencement Date for the original term and payable in
full upon commencement of any renewal, extension or expansion term, or a new
lease between the parties. Furthermore, in the
-6-
7
event of a sale by the Landlord to the Tenant of the Premises or the whole or
any part of the building of which the Premises are a part, or any other
property, the Landlord agrees to pay to the Agent as a sales commission for
services rendered in procuring the Tenant an amount equal to Five Per Cent (5%)
of the total sale price, payable at settlement.
Landlord and Tenant warrant and represent each to the other that
neither has engaged or dealt with any other broker, agent or finder in
connection with this Lease and each agrees to indemnify and hold harmless the
other and the Agent against any claim for a commission or fee resulting from a
breach of this representation and warranty. The foregoing provisions for the
payment of leasing and sales commissions are an integral part of this Lease and
are covenants which run with the land, and shall be binding upon any subsequent
owner of the Premises. Agent has no responsibility for the condition of the
Premises or for the performance of this Lease or any other agreement between the
Landlord and Tenant, and both parties agree to protect and hold harmless Agent
from any and all claims for injury to person or personal property by reason of
any accident or happening, in, upon or about the Premises.
3.1 Assignment and Subletting. Tenant will not assign this Lease, in
whole or in part, or sublet all or any part of the Premises, without first
obtaining the Landlord's written consent, which consent shall not be
unreasonably withheld. This prohibition includes any subletting or assignment
which would otherwise occur by operation of law, merger, consolidation,
reorganization, transfer or other change of Tenant's corporate or proprietary
structure, or an assignment or subletting to or by a receiver or trustee in any
bankruptcy, insolvency, or other proceedings. Consent by Landlord to any
assignment or subletting shall not constitute a waiver of the requirement for
Landlord's consent to any subsequent assignment or subletting. The acceptance by
Landlord of the payment of rent following any assignment or subletting shall not
be deemed to be a consent by Landlord to such assignment or subletting.
3.2 Casualty Damage. If the Premises shall be damaged by fire, the
elements, accident or other unavoidable casualty (any of such causes being
referred to herein as a "Casualty"), but the Premises shall not be thereby
rendered wholly or partially untenantable, then Landlord shall cause such damage
to be repaired and there shall be no abatement of rent. If as the result of a
Casualty, the Premises shall be rendered wholly or partially untenantable, then
Landlord may at Landlord's option either terminate this Lease by giving written
notice of termination to Tenant within Thirty (30) days after the Casualty,
whereupon the rights and obligations of the parties under this Lease shall cease
and the rent shall be abated proportionately as to the portion of the Premises
rendered untenantable for the period until such repairs are completed. Landlord
shall not be required to perform any work costing in
-7-
8
excess of the amount covered by Landlord's insurance on the Premises. Landlord
shall not be liable for interruption to Tenant's business or for damage to or
replacement or repair of Tenant's personal property (including but not limited
to inventory, trade fixtures, floor coverings, furniture and other property) or
to any leasehold improvements installed in the Premises by Tenant, all of which
damage, replacement and repairs shall be undertaken and promptly completed by
Tenant. Notwithstanding any provision of this Lease, Landlord shall have no
obligation to repair or replace any property which is damaged or destroyed due
to the negligence of Tenant or anyone on or about the Premises or acting by,
through or under Tenant.
3.3 Eminent Domain. If the whole or any part of the Premises shall be
taken under the power of eminent domain, then this Lease shall terminate as to
the part of the Premises so taken on the date Tenant is required to yield
possession thereof to the condemning authority. Rent shall be reduced in the
same proportion as the portion of the floor area of the Premises so taken bears
to the total floor area of the Premises prior to such taking. If the taking
renders the remainder of the Premises untenantable, then either party may
terminate this Lease as of the date when Tenant is required to yield possession
to the condemning authority. All compensation awarded for any taking of the
Premises shall be the property of Landlord, and Tenant hereby to Landlord all
rights with respect thereto. Nothing contained herein shall prevent Tenant from
applying for reimbursement from the condemning authority for Tenant's damages,
but if and only if such action is permitted by law and shall not reduce the
amount of the award or other compensation otherwise recoverable from the
condemning authority by Landlord.
3.4 Subordination. This Lease shall be subject and subordinate to the
liens of any mortgages and deeds of trust now existing or hereafter placed on
the Premises or the property of which it is a part. Tenant shall promptly
execute any certificates or assurances that the Landlord may request in
confirmation of this subordination. Tenant hereby constitutes and appoints the
Landlord as Tenant's attorney in fact to execute any such certificate or
certificates for or on behalf of the Tenant, in the event that the Tenant shall
have failed to execute any such certificate or certificates within Ten (10) days
after having been requested to do so by the Landlord.
3.5 Default. The happening of any of the following shall be deemed to
be an event of default by Tenant under this Lease: (a) failure of Tenant to pay
any installment of rent or other charge or money obligation herein required to
be paid by Tenant within Ten (10) business days after the same becomes due and
payable; (b) failure of Tenant to perform any other of its covenants under this
Lease within Thirty (30) days after receipt of written notice from Landlord; (c)
the filing of a petition in bankruptcy by Tenant or adjudication that Tenant is
bankrupt, or the making by Tenant of a general assignment for the benefit of
-8-
9
creditors, or the appointment of a receiver of substantially all of the property
of Tenant, including, in any event, this Lease, in a proceeding based upon
Tenant's insolvency which shall not be discharged within Ninety (90) days after
such appointment; or (d) vacation or abandonment of the Premises by Tenant. Upon
the occurrence of any of the aforesaid events of default by Tenant, Landlord
lawfully may immediately, or at any time thereafter, and without any further
notice or demand, enter into and upon the Premises or any part thereof in the
name of the whole, by force or otherwise, and hold the Premises as if this Lease
had not been made, and expel Tenant and remove Tenant's property without being
deemed to be guilty in any manner of trespass, or Landlord may send written
notice to Tenant of the termination of this Lease. Upon entry as aforesaid or,
if Landlord shall so elect, upon the giving of such written notice, this Lease
shall terminate.
If Landlord shall terminate this Lease as hereinabove provided, whether
or not the Premises or any part thereof shall be relet and regardless of the
terms of any such reletting, or to the extent of Landlord's efforts to relet,
Tenant shall remain liable for the performance of all covenants under this
Lease, and for any and all damages and expenses incurred by Landlord arising
from such default and re-entry and for any loss of rents sustained by Landlord
for the balance of the term of this Lease. In the event of default under this
Lease by Tenant, Landlord shall have the right, at Landlord's option, to relet
the Premises as agent of Tenant and to apply the proceeds received from such
reletting toward the payment of the rent under this Lease, and any loss of rent
for the balance of the term shall be payable monthly by Tenant in advance in the
same manner that rent hereunder is to be paid.
In the event of default hereunder, the Tenant will be responsible and
liable for all costs, charges, fees, including reasonable attorney's fees, which
Landlord may incur in connection with the breach hereof and/or the collection of
any sums due hereunder.
3.6 Indemnity. Tenant agrees to and does hereby indemnify Landlord and
Agent and save Landlord and Agent harmless and shall defend Landlord and Agent
from and against any and all claims, actions, damages, liability and expense,
including attorney's and other professional fees, in connection with loss of
life, personal injury and property damage arising from or out of the occupancy
or use of the Premises or any part thereof or any parking areas, sidewalks, or
other amenities in the vicinity of the Premises. Neither Landlord nor Agent
shall be responsible or liable to Tenant, or to those claiming by, through or
under Tenant, for any loss or damage to person or property which may be
occasioned by or through the acts or omissions of persons occupying space in the
vicinity of the Premises, or which may be occasioned by or through the breaking,
-9-
10
bursting, stoppage or leakage of water, gas, oil, sewer or steam pipes and
equipment or electrical wires.
3.7 Insurance. At all times after the execution of this Lease, Tenant
will carry and maintain at Tenant's expense public liability insurance,
including the hazards of bodily injury, property damage, personal injury and any
assumed or contractual liability under contracts defined as "incidental
contract" under standard Insurance Services Offices definitions, to afford
protection with limits not less than $1,000,000.00 each occurrence/$1,000,000.00
aggregate if written on a Combined Single Limit basis for bodily injury and
property damage, or $1,000,000.00 each occurrence/$1,000,000.00 aggregate for
bodily injury and $500,000.00 each occurrence/$500,000.00 aggregate for property
damage if written on a Split Limit basis, and in either event, the limit for
personal injury shall be $1,000,000.00.
The insurance policies evidencing such insurance shall name Landlord as
additional insured and shall also contain a provision by which the insurer
agrees that such policies shall not be canceled except after Thirty (30) days
written notice to Landlord. Upon execution of this Lease and annually
thereafter, and upon request by Landlord, Tenant shall deliver to Landlord a
certificate from the insurer evidencing each such policy to be in effect. In the
event Tenant fails to procure such insurance, Landlord may, but shall not be
obligated to procure same, and all expenses incurred by Landlord in connection
therewith shall be chargeable to Tenant as additional rent.
Tenant will not do or suffer to be done, or keep or suffer to be kept,
anything in, upon or about the Premises which will violate Landlord's policies
of hazard or liability insurance or which will prevent Landlord from procuring
such policies in companies acceptable to Landlord. If anything done, omitted to
be done or suffered by Tenant to be kept in, upon or about the Premises shall
cause the rate of fire or other insurance on the Premises to be increased beyond
the minimum rate from time to time applicable to the Premises, then Tenant will
promptly pay to Landlord, as additional rent, the amount of any such increase
upon Landlord's demand.
3.8 Landlord Access. Landlord or his agents shall have access to the
Premises at any and all reasonable times for the purpose of inspecting the
Premises, protecting the Premises against fire or other damage, and exhibiting
the Premises to prospective tenants or purchasers. Landlord reserves the right
to show the Premises to prospective new tenants or purchasers and to post signs
on the Premises advertising its availability for sale or lease within the last
Sixty (60) days of Tenant's occupancy of the Premises.
3.9 Possession. If for any reason whatsoever the Landlord does not
deliver possession of the Premises according to the terms of this Lease, then
the rent shall be abated until the
-10-
11
date that possession of the Premises is tendered by the Landlord. In no event
shall the Landlord or Agent be liable in damages for failure to deliver
possession under the terms of this Lease.
3.10 Signs and Advertising. Tenant will not place or suffer to be
placed or maintained on the exterior or visible from the exterior of the
Premises, any sign, advertising matter, decoration, or any other thing, nor
shall Tenant paint or decorate any part of the exterior of the Premises without
first obtaining Landlord's written approval, which approval shall not be
unreasonably withheld. Tenant will at Tenant's sole cost and expense maintain
any sign, decoration, advertising matter or other thing permitted by Landlord in
good condition and repair at all times.
3.11 Estoppel Certificate. At any time and from time to time, within
Ten (10) days after request by Landlord, Tenant will execute, acknowledge and
deliver to Landlord and to such other party as may be designated by Landlord, an
estoppel certificate in form acceptable to Landlord setting forth the status of
performance of the obligations of the parties under this Lease. If Tenant fails
to provide such certificate within Ten (10) days after request by Landlord,
Tenant shall be deemed to have approved the contents of any such certificate
submitted to Tenant by Landlord. The failure to provide such certificate may, at
the option of the Landlord, be considered an event of default hereunder in
accordance with Section 3.5 hereof.
3.12 Waiver. No reference in this Lease to 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 Landlord may otherwise be
entitled at law or in equity. No failure by Landlord to insist upon the strict
performance of any covenant herein or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall operate as a waiver of any such breach or
covenant or any subsequent breach thereof.
Tenant does hereby waive its right to a trial by jury, but Tenant does
not waive its right to a bench trial in any dispute arising hereunder, nor does
Tenant waive its right to applicable statutory provisions concerning notice to
vacate the Premises.
3.13 Landlord's Right to Cure. If Tenant fails to perform any covenant
or responsibility of Tenant under this Lease, then Landlord may at Landlord's
option perform such responsibility and Tenant shall promptly reimburse Landlord
for any costs so incurred by Landlord, including attorney's fees, as additional
rent hereunder. Any and all costs and expenses which are Tenant's responsibility
under this Lease may be collected by Landlord as additional rent hereunder.
-11-
12
3.14 Landlord's Responsibility. It is the intention of Landlord and
Tenant that Landlord shall only be responsible for those items and expenses
which are expressly made Landlord's responsibility herein, and all other items
and expenses shall be borne by Tenant.
3.15 No Joint Venture. Any intention to create a joint venture,
partnership or agency relationship between the Landlord and Tenant is hereby
expressly disclaimed. Nothing contained in this Lease shall be construed so as
to confer upon any other party the rights of a third party beneficiary, with the
exception of the rights of the Agent.
3.16 Corporate Tenant. If Tenant is a corporation, the persons
executing this Lease on behalf of Tenant hereby covenant and warrant that:
Tenant is a duly constituted corporation qualified to do business in the state
in which the Premises are located; all Tenant's franchises and corporate taxes
have been paid to date; all future forms, reports, fees and other documents
necessary for Tenant to comply with applicable laws will be filed by Tenant when
due; and such persons are duly authorized by the board of directors of such
corporation to execute and deliver this Lease on behalf of the corporation.
3.17 Construction of Lease. This Lease and the rights and obligations
of the parties hereunder shall be construed in accordance with the laws of the
state in which the premises are located. This agreement shall bind the
administrators, executors, successors and assigns of the parties hereto.
Landlord and Tenant each acknowledge that they have had full opportunity to
obtain legal counsel prior to executing this Lease.
This Lease contains the entire and final agreement of and between the
parties hereto, and they shall not be bound by any statements, conditions,
representations, inducements or warranties, oral or written, not herein
contained. This Lease may be modified only by a writing signed by Landlord and
Tenant. If any provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby and
each other provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
For the convenience of the parties hereto, this Agreement is executed
in several counterparts, each of which shall be deemed an original for all
purposes without the necessity of producing any counterpart. The section
headings in this Lease are for convenience of reference only and in no way shall
be used to construe or modify this Lease.
IN WITNESS WHEREOF, the parties have executed this Agreement of Lease
as of the dates indicated below, the effective date of the Agreement of Lease
being the date of final execution hereof by both parties.
-12-
13
WITNESS/ATTEST: LANDLORD:
-------------------- ---------------------------- DATE ________
Xxxxxx X. Xxxxxx
WITNESS/ATTEST: TENANT:
UP-RIGHT AERIAL PLATFORMS
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
-------------------- ---------------------------- DATE 10-15-92
Vice President, UpRight, Inc. --------
With Authority to Bind
The Xxxxxxx Companies, Inc. joins in execution of this Agreement of
Lease for the purpose of consenting to the terms hereof regarding payment of
commission.
THE XXXXXXX COMPANIES, INC.
____________________ By: _________________________ DATE ________
Xxxx X. Xxxxxxx,
President
-13-
14
EXHIBIT I
[Site Plan]
15
EXHIBIT II
REPAIRS AND IMPROVEMENTS
Landlord shall provide the following improvements to the Premises prior
to November 1, 1992:
a. Repair or replace, re-seal and re-stripe the blacktop areas. Any
areas not so blacktopped shall be gravel, as shown on the site plan attached
hereto as Exhibit "I". Landlord shall also build a "Runoff Trap" five feet
square (5X5X5X5), constructed of filter paper and No. 2 stone to be located at
the end of the swale near the fence which will accommodate the wash runoff.
b. The modular office building will be painted and cleaned on the
exterior where needed. All stairs, railings and ingress and egress ramps will be
repaired and the grass will be mowed. The interior shall be painted or
wallpapered, as designated by the Tenant. Office partitions will be
added/removed per the final floor plan, as previously agreed by the parties. All
systems within the building to be in good working order.
All repairs and improvements performed by Landlord shall be performed
in such a manner so as not to impede the obtaining of a Use & Occupancy Permit
by Tenant.
The Tenant, at its sole expense, shall be responsible for the design
and construction of a loading ramp to its specifications.
16
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (this "Assignment") is made and entered into
as of June, 1994, by and between Up-Right, Inc., a California corporation
("Assignor"), and Horizon High Reach, Inc., a Delaware corporation ("Assignee").
RECITALS:
A. Assignor is the tenant under that certain Agreement of Lease (the
"Lease") dated October 15, 1992, (a copy of which Lease, including all
amendments and modifications thereto, is attached hereto as EXHIBIT "A") between
Assignor and Xxxxxx X. Xxxxxx (herein, "Landlord"), for the premises (the
"Premises") located in the City of Beltsville, State of Maryland, as described
more particularly in the Lease.
B. Pursuant to that certain Asset Contribution Agreement (the "Asset
Contribution Agreement"), dated June __, 1994, Assignor has agreed to transfer,
and Assignee has agreed to acquire, certain of Assignor's assets.
C. In accordance with the Asset Contribution Agreement, Assignor
desires to assign all rights and delegate to Assignee all obligations arising
under the Lease, and Assignee desires to accept such assignment and delegation
on the terms and conditions set forth below.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenant and agreements
contained herein and other good and valuable consideration, the parties agree as
follows:
1. Assignment. Effective upon the Closing (as defined in the Asset
Contribution Agreement) and, to the extent required under the Lease, Lessor's
written consent hereto (such later date herein referred to as the "Effective
Date"), Assignor assigns and transfers to Assignee all of Assignor's right,
title, and interest in, and delegates to Assignee all obligations arising under,
the Lease.
2. Assumption. From and after the Effective Date, Assignee assumes all
the obligations of Assignor under the Lease to be performed by Assignor as the
tenant under the Lease and, agrees to be bound by all the terms, covenants,
conditions, and provisions of the Lease. Assignee hereby agrees to indemnify and
hold Assignor harmless from and against any and all costs, expenses (including,
without limitation, attorneys' fees) and liabilities arising from the breach or
default by Assignee of any of the terms, covenants, conditions, and provisions
of the Lease occurring from and after the Effective Date.
17
3. Representations and Warranties. Assignor hereby represents and
warrants to Assignee that the documents attached hereto as EXHIBIT A comprise
the entire agreement between Assignor and Lessor respecting the Premises.
4. Governing Law. This Assignment and the rights and obligations of the
parties hereunder shall in all respects be governed by, and interpreted in
accordance with, the laws of the State of California.
5. Interpretation. This Assignment shall be interpreted in accordance
with the common meaning of its terms and shall not be interpreted strictly for
or against either party, provided that in the event of any conflict with the
terms or conditions of the Asset Contribution Agreement, the terms and
conditions of the Asset Contribution Agreement shall control.
6. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken together
they shall constitute one and the same agreement.
7. Successors. This Assignment shall be binding upon and shall inure to
the benefit of Assignor, Assignee, and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first written above.
"ASSIGNOR" "ASSIGNEE"
UP-RIGHT, INC. HORIZON HIGH REACH, INC.
a California corporation a Delaware corporation
By _____________________________ By _____________________________
18
CONSENT TO ASSIGNMENT
The undersigned ("Landlord") hereby consents to the assignment of
rights and delegation of duties under the Lease to Assignee, as described above,
and from and after the Effective Date hereby releases Assignor from all
obligations and liabilities arising under the Lease. Landlord hereby represents
and warrants to Assignee and agrees that (i) as of the Effective Date, the Lease
is in full force and effect and no default or breach (or no event has occurred
that, with the passage of time, the giving of notice by Landlord, or both,
otherwise would constitute a default or breach) exists under the Lease; (ii) the
Lease attached hereto as EXHIBIT "A" constitutes the entire agreement of
Assignor and Landlord with respect to the subject matter thereof; (iii) Assignor
has paid or been credited with the deposits (whether in the nature of a security
deposit or otherwise) specified in the Lease, and from and after the Effective
Date Landlord shall hold and apply such deposits for Assignee's account in
accordance with the Lease; and (iv) the term of the Lease commenced on the first
day of March, 1993 and shall expire on the last day of February, 1998.
IN WITNESS WHEREOF, Landlord has executed this Consent to Assignment as
of 7/15/94 , 1994.
By /s/ Xxxxxx X Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
