COMMERCIAL LEASE AGREEMENT
EXHIBIT
10.43
COMMERCIAL
LEASE AGREEMENT
LEASE AGREEMENT
THIS AGREEMENT, made and executed this 1st day of September, 2004, by and between
Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx, hereinafter called the Landlord, and HazTrain, Inc.,
hereafter called the Tenant.
WITNESSETH, that Landlord has agreed to, and does hereby lease unto Tenant the premises known
as Units 1 and 2 (Office and adjoining warehouse space) 00000 Xxxxxxxx Xxxxx Xxxx., Xxxxx Xxxxxx,
XX 00000 for the term of Three (3) years, commencing on the 1st day of September, 2004
and fully ending at midnight on the 31st day of August, 2007 at and for the total rental
of One hundred fifteen thousand six hundred seventy three dollars & 4/100 payable in monthly
installments of Three thousand two hundred thirteen dollars & 14/100 the first installment payable
on September 1, 2004 and the remaining installments payable in advance on the First day of each
ensuing month beginning September 1, 2004 to September 1, 2007.
TENANT takes and holds the said premises as Tenant for the term and subject to the conditions
as herein provided, at the rent payable as aforesaid, and the said Tenant will, without previous
demand, pay the rent specified at the time, place and in the manner herein provided.
1. POSSESSION. Tenant will, and does hereby, take and hold said premises as a Tenant for the
term above named; but the same is subject to delivery of possession by any occupant, and in the
case of newly constructed or repaired premises, is subject to completion of construction or
repairs. If Landlord is unable to give possession of the Premises on the Commencement Date of the
term of this Lease by reason of holding over of any tenant or because construction, repairs or
improvements being made or to be made by Landlord are not substantially completed, rent shall xxxxx
for the period that possession by Tenant is delayed unless Tenant caused (in whole or in part) such
delay in which case rent shall not xxxxx, but under no circumstances shall Landlord be responsible
for direct or consequential damages because of its inability to furnish possession to Tenant by any
particular date. Should Tenant occupy the Premises prior to the Commencement Date of this Lease,
with such early occupancy being in all respects fully approved in writing by Landlord, all terms of
this Lease shall then commence and the term of this Lease and the Rental provided herein shall go
into effect (being prorated if necessary on an actual daily basis for the first month if the
Commencement Date is other than the first day of a calendar month). It is mutually agreed that the
Commencement Date of the term under such early occupancy shall be the date Tenant takes occupancy
of the Premises and the Termination Date stated above shall remain in effect.
2. RENT PAYMENTS. Tenant will pay said rent in advance, without demand or deduction, on the
First day of each month at The office of X.X. Xxxxxx Electric or such other place as Landlord may
designate in writing. The rent shall, at the end of each lease year, be increased in direct
proportion to any increase in the Consumer Price Index. (All Urban Consumers — C.P.I.U.), as
published by the United States Department of Labor, using the Index during the first month of
occupancy as the base month as it relates to the first month of each succeeding year of the lease.
In the event the index is discontinued, a new index will be chosen by arbitration in accordance
with the rules and regulations of the American Arbitration
Association. If rent is not paid within Ten days of the due date, additional rent of 5% of
said
payment shall also become due and payable. In the event a rent check is returned for
insufficient funds, the Tenant agrees to pay as additional rent the sum of $100.00.
3. SECURITY DEPOSIT.
The sum of $________________ shall be paid by Tenant to ______________________________________ at time of execution of this
lease to be held as security for the payment of rent hereunder and the full and faithful
performance of all the terms, covenants and conditions of this lease to be performed by Tenant.
4. UTILITY CHARGES. Tenant will pay all utility charges including, without limitation, water
and/or sewer charges, oil, telephone, gas, and electric bills, if any, and other charges provided
for herein as the same become due. The Tenants responsibilities for utilities are defined as those
both metered directly to Tenant and those prorated for the proportionate share of square feet
leased to the Tenant by the Landlord.
5. Intentionally Omitted.
6. USE OF PREMISES. Tenant will use said premises actively and continuously for the full term
hereof for Office and warehouse storage of non-hazardous materials.
7. DISORDERLY OR UNLAWFUL USE. Tenant will not use, nor permit said premises or any part
thereof to be used, for any disorderly or unlawful purpose.
8. TRANSFER, ASSIGN, OR SUBLET. Tenant will not transfer or assign this Lease, nor let nor
sublet the whole or any part of said premises without the prior written consent of the Landlord,
which consent may be withheld in the sole and absolute discretion of the Landlord. If Tenant is a
corporation or partnership, and if at any time during the term of the Lease the person or persons
which, on the date of this Lease, own or owns a majority of such corporation’s shares or the
general partner’s interest, voluntarily or by operation of law transfers control and/or ownership
of such shares or general partner’s interest or any portions thereof as the case may be (except as
the result of transfers by gift or inheritance), any such event shall be deemed to be an assignment
of this Lease as to which event Landlord’s prior written consent shall have been required, and in
case of any such event Tenant shall so notify Landlord and Landlord shall have the right, at its
option, to terminate this Lease by notice to tenant given within thirty (30) days thereafter.
9. CARE OF PREMISES AND SURRENDER. Tenant will keep said premises in good order and
condition, and surrender same at expiration of the term herein in the same order in which premises
was received, usual wear and tear and damage by fire, storm and public enemies only excepted. Upon
surrender of the premises, Tenant shall have removed all rubbish, advertisements and signs from
interior, exterior and show windows thereof, and on failure to do so authorize Landlord to
forthwith remove the same at Tenant’s expense.
10. SIDEWALK MAINTENANCE. Tenant will keep the sidewalks immediately abutting said premises
free from obstructions of all nature, properly swept and snow and ice removed therefrom.
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11. TRASH DISPOSAL. Tenant, at its expense, shall be responsible for his trash removal only.
12. INSURANCE.
A. Liability Insurance.
(i) Tenant shall provide and maintain a comprehensive liability insurance policy with respect
to the premises naming Landlord as additional insured. The insurance policy shall protect the
Landlord, its managing agent, and the Tenant against any liability which arises from any occurrence
on the premises or any appurtenance of the premises over which the Tenant has control.
(ii) The policy is to be written by a carrier satisfactory to Landlord. The coverage shall be
a minimum of $1,000,000.00 for injury to persons and property.
(iii) The Landlord may require an increase in coverage during the term of the Lease so long as
such increase is reasonable.
(iv) Tenant shall carry fire, vandalism and malicious mischief insurance covering all Tenants
improvements, stock in trade, fixtures, furniture, furnishings, removable floor coverings, trade
equipment, signs and all other leasehold improvements made by the Tenant to the premises to the
extent of one hundred percent (100%) of its full insurable value and replacement costs without
deduction or depreciation. In the event of casualty loss hereunder, the proceeds of such policy
shall be applied solely to the replacement, restoration and refurbishment of such damaged items.
B. General Insurance Provisions.
(i) On or before Tenant enters the Premises for any reason, and again before any insurance
policy shall expire, Tenant shall deliver to Landlord the policy or renewal thereof, as the case
may be, together with evidence of payment of applicable premiums. Any insurance required to be
carried under this Lease may be carried under a blanket policy covering the premises and other
locations of Tenant. If Tenant includes the premises in blanket coverage, Tenant may deliver to
Landlord a duplicate original of the blanket insurance policy.
(ii) If Tenant fails to comply with any of the insurance requirements stated in this Lease,
Landlord may obtain such insurance and keep the same in effect, and Tenant shall pay Landlord as
additional rent the premium cost thereof upon demand.
13. FIRE AND CASUALTY DAMAGE. IT IS FURTHER UNDERSTOOD AND AGREED, that if said premises or
any part thereof, shall at any time be destroyed by fire (or other unavoidable casualty) as to be
unfit for occupancy or use, then the rents herein reserved, or a fair and just proportion thereof,
according to the area of the lease premises which is unusable by Tenant, and the nature and extent
of the damage sustained, shall until the said premises have been rebuilt or restored and made fit
for occupancy or use, be suspended and cease to be payable, or these presents shall, at the
election of either party, thereby be determined and ended, provided, however, that in the event of
partial damage to the demised premises from fire or other casualty
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not involving the repair or reconstruction of a substantial portion thereof, the Landlord
shall promptly restore same to such condition as will permit Tenant to use and occupy said premises
for the purpose herein set forth. Provided however, any obligation of Landlord hereunder shall be
limited to the basic building and interior work originally installed by Landlord. Landlord shall
commence such repairs or restoration with reasonable diligence after notice thereof and after a
reasonable period of time for Landlord to adjust Landlord’s insurance claims, and shall prosecute
same in an expeditious manner.
14. REPAIR OF PREMISES AND LANDLORD ACCESS. Tenant will make, at Tenant’s own expense, any
and all repairs to the premises hereby leased during the term of the Lease except Landlord shall,
without expense to Tenant, maintain and make all necessary repairs to the foundations, load bearing
walls, roof, gutter, downspouts, water mains, gas and sewage lines, sidewalks, private roadways,
parking areas, and loading docks, if any, on or appurtenant to the leased premises unless the said
repairs are the result of negligence of Tenant or his agents. Tenant will allow Landlord or his
Agent access to said premises at any and all reasonable times for the purpose of inspection, or in
the event of fire or other property damage, or for the purpose of making any repairs Landlord
considers necessary or desirable, and will permit Landlord’s Agent to place a sign on the premises
during the last three (3) months of this Lease offering the property for sale or lease.
15. HEAT, HOT WATER, AIR CONDITIONING AND ALTERATIONS. Tenant will furnish heat, hot water
and air conditioning, if desired, at Tenant’s cost and expense during the term of this agreement or
any renewals or extensions thereof. The Tenant shall make all repairs and improvements to the
interior of said premises as the same become necessary or are required, including air conditioning
system, heating plant, pipes, radiators, ducts or plumbing fixtures. Tenant will repair or replace
any other damage caused to the demised premises by Tenant negligence, or the negligence of the
Tenant’s servants or employees, or any damage to the premises or the fixtures therein caused by
improper use or caused by failing to give them the proper service. Tenant may, at his own expense,
either at the commencement of or during the term of this Lease, make such alterations in and/or
additions to the leased premises including, without prejudice to the generality of the foregoing,
alterations in the water, gas, and electric wiring systems, as may be necessary to fit the same for
Tenant’s business, upon first obtaining the written approval of Landlord as to the materials to be
used and the manner of making such alterations and/or additions, which approval will not be
unreasonable withheld. Tenant may also, at Tenant’s own expense, install such counters, racks,
shelving, fixtures, fittings, machinery and equipment upon or within the leased premises as Tenant
may consider necessary for the conduct of Tenant’s business. At any time prior to the expiration
or earlier termination of this lease, Tenant shall remove any or all such alterations, additions or
installations in such a manner as will not substantially injure the leased premises. At the
termination of this Lease, Tenant shall restore the premises to the same conditions as existed
prior to the making of such alteration, addition or installation, ordinary wear and tear, damage or
destruction by fire, flood, storm, civil commotion or other unavoidable cause excepted. All
alterations, additions, or installations not so removed by Tenant at the Landlord’s option shall
become the property of Landlord without liability on Landlord’s part to pay for the same.
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16. SIGNS. Tenant will not erect or place any signs upon the windows, doors or outside walls
of said premises or make any alterations or additions to the demised premises without the prior
written consent of the Landlord’s, which consent will not be unreasonably withheld.
17. COMPLIANCE WITH GOVERNMENTAL AUTHORITY. Tenant will, at Tenant’s cost, promptly comply
with and carry out all orders, requirements, or conditions now or hereafter imposed upon Tenant by
the Ordinance, Laws and/or Regulations of the Federal Government, State, Municipality (incorporated
or unincorporated) or County, in which said premises are located, or by any of its various
departments whether required of Landlord of otherwise, to be done or performed during the term of
this agreement, insofar as they are occasioned by or required in the conduct of the business of
Tenant, or in the Tenant’s use and occupancy of said premises for the purpose permitted.
18. EMINENT DOMAIN AND CONDEMNATION. In the event eminent domain proceedings shall be
instituted against the leased premises, Tenant will make no claim for compensation in the
proceedings, and agrees that Tenant’s Lease shall terminate when title to the leased premises is
taken by the condemning authority, provided the rental is abated from such date. If the whole or
any part of the leased premises shall be taken by any competent public authority under the power of
eminent domain, then the term of the Lease shall cease as to the part so taken from the date that
possession of that part shall be acquired for any public purpose and the rent shall be paid up to
that date. If the whole or any such portion of the leased premises is taken so as to reasonable
destroy the usefulness of the premises for the purpose for which same were leased, then the Tenant
shall have the right to terminate this Lease within forty-five (45) days after possession is taken
for such public purpose. In the event, however that only a portion of the premises is taken and
the position so taken does not reasonable destroy the usefulness of the premises for the purpose
for which the same were leased, or if the Tenant shall not elect to terminate this Lease if the
usefulness of the premises is reasonable destroyed as stated in the preceding sentence, then the
rent shall be reduced in proportion to the area of the premises taken in relation to the total area
of the premises leased. The taking of a 20% or less of parking spaces shall not be considered as
any taking of the “leased premises” referred to in this paragraph. Any dispute resulting from the
determination of the fair reduction in rental shall be settled by arbitration under the rules of
the American Arbitration Association. All proceeds from any condemnation shall belong to and be
the property of the Landlord.
19. LEASE SUBORDINATION. This Lease is subject and subordinate to the lien of any mortgage,
ground rent, or deed of trust encumbrance or encumbrances now or at any time hereafter placed upon
the said premises, and the Tenant does hereby agree to execute, acknowledge and record any and all
instruments including Estoppel certificates (within five (5) business days) to effect such
subordination which the Landlord may request or require. Tenant irrevocably appoints Landlord, his
successors and assigns, his attorney-in-fact to execute any and all such instruments on his behalf.
20. TENANT OBLIGATIONS. Should Tenant fail to perform any of the duties hereunder, Landlord
may cause the same to be performed and paid for. Payment of such sums, or expenses or prosecuting
or defending any matter or action, by reason of Tenant default in any way, shall be deemed
additional rent and due from Tenant to Landlord on the first day of the month following billing for
said charges incurred.
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21. LEGAL PROCEEDINGS. In the event legal proceedings are instituted against Tenant by the
Landlord to enforce any provisions of this Lease, then Tenant agrees to pay as additional rent all
court costs instant to such proceedings, together with a reasonable attorney’s fee and both parties
hereby agree to waive the right of trial by jury.
22. NOTICE TO QUIT. If Tenant shall fail to pay said rent in advance as aforesaid, although
there should have been no legal or formal demand made, or break or violate any of the within
covenants, conditions or agreements, then and in any of such events, this Lease and all things
herein contained shall, at the option of the Landlord cease and determine and shall operate as a
Notice to Quit, the thirty (30) days’ written Notice to Quit being hereby expressly waived, and
Landlord may proceed to recover possession of said premises under and by virtue of the provisions
of the Code of Law for the State of Maryland, by such legal process as may at the time be in
operation and force in like cases relating to proceedings between Landlords and Tenants. In the
event that the Landlord shall resume possession of the premises, Landlord may re-lease the same, at
the best rent that can be obtained, for the remainder of the term, for the account of the Tenant,
who shall make good any deficiency. Such rent applied first to payment of Landlord’s expenses
incurred in recovering possession of said premises and re-letting same, second to costs and
expenses incurred by Landlord in making necessary repairs or in curing any default on the part of
the Tenant in any covenant or conditions herein, and lastly to any rent due hereunder.
23. WAIVER OF COVENANT. IF PROCEEDINGS, shall at any time he instituted as aforesaid and
compromise of settlement shall be effected either before or after judgment whereby Tenant shall be
permitted to retain possession of said premises then such proceedings shall not constitute a waiver
of any covenant, condition or agreement contained herein or of any subsequent breach of this
agreement.
24. BANKRUPTCY AND ASSIGNMENT. IT IS FURTHER UNDERSTOOD AND AGREED, that in the event Tenant
is adjudicated a bankrupt or makes an assignment for the benefit of Tenant’s creditors, this
agreement shall, at the option of Landlord, cease and determine and said premises shall be
surrendered to Landlord, who hereby reserves the right, in either of said events, to forthwith
re-enter and repossess said premises.
25. EXPIRATION OF LEASE. In the event Tenant remains in possession of the premises after the
expiration of the term of the Lease, and without the execution of a new Lease, Tenant at the option
of the Landlord, shall be deemed to be occupying the premises as a Tenant from month to month at
150% of the base rental due for the last calendar month during the term of the Lease and shall be
subject to all other provisions or obligations of the lease that are applicable to a month-to-month
tenancy. The holding over period may be cancelled by the Landlord upon thirty (30) days written
notice to the Tenant.
26. WAIVER OF BREACH OF COVENANT. IT IS FURTHER UNDERSTOOD AND AGREED, that the covenants,
conditions and agreements contained in the within Lease to be performed by the respective parties,
are binding on, and may be legally enforced by, the said parties, their heirs, executors,
administrators, successors and assigns, respectively, and that no waiver of any breach of any
covenant hereof shall be construed to be a waiver of the covenant itself or of any subsequent
breach thereof, or of this agreement.
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27. TAXES. Tenant shall pay to Landlord, as additional rent, annually, any increase in the
real estate taxes payable by Landlord over and above those payable for the tax period ending June
30, 2004. A tax xxxx shall be sufficient evidence of the amount of taxes so imposed, and shall
include any increases, whether it be an increase in the rate, or a new tax and/or reassessment of
the property or for any other reason. Such amount shall be paid within ten (10) days after it
shall have been demanded by Landlord, and it shall be collectable as part of the rental. In the
event the tax xxxx includes adjacent facilities, then the tax shall be prorated, the Tenant being
responsible for his prorata share of such xxxx. Landlord shall compute same and forward the amount
along to Tenant with a copy of the total tax xxxx.
28. RENEWAL OPTION. Tenant shall have the right to extend this Lease for an additional period
of Three (3) years at the end of the initial term, by giving written notice at least Sixty (60)
days advance of the end of the original Lease term, of Tenant’s intention to so renew. The rent
for the option period shall be as follows: The continuation of base rent plus CPI increase as per
paragraph 2.
29. LANDLORD’S RIGHT TO CURE TENANT’S DEFAULTS. Should the Tenant default in performance of
any of the terms, covenants or agreements herein provided including but without limitation to
payment of real estate taxes, insurance premiums, utilities charges, failure to discharge forthwith
a mechanics’ lien filed by contractors of Tenant, repairs to the premises or in any other respect
whatsoever, or should Landlord incur any charge, expense or attorney’s fees as a result of the
breach by Tenant of any of the terms of this Lease, Landlord shall have the right to cure any such
defaults or incur any such expense and shall charge said expenditures made by it as additional
rent, and Tenant agrees to forthwith pay such additional rent to Landlord. Should Tenant fail to
pay such sums forthwith after demand therefor, Landlord shall be entitled to all of the remedies
herein provided with respect to the collection of such charges as in the case of nonpayment of
rent.
30. CAPTIONS. The captions appearing in the Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or intent of any paragraph
or section of this Lease or any way affect this Lease.
31. FINAL AGREEMENT. THIS LEASE contains the entire and final agreement by and between the
parties hereto, and the parties shall not be bound by any statements, conditions, representations,
inducements, or warranties, oral or written, not herein contained.
32. PROPERTY DATA AND ADDRESS OF PARTIES. The following are attached hereto and made a part
hereof: ___PLANS AND SPECIFICATIONS ___SITE PLAN ___FLOOR PLAN ___RECORD PLAT
___OTHER
33. ADDITIONAL PROVISIONS.
a. Tenant shall be entitled to fifteen (15) employee parking spaces plus parking for five (5)
company trucks.
b. Tenant shall be granted permission to remove Landlord’s sign on the front of the building
and replace same with a sign for his own company.
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c. Tenant shall be granted first right of refusal to lease additional space in Landlord’s
building should space become available and placed on the market.
d. During the term of the first Lease the Tenant has an opportunity to purchase the building
and property at a fair market value to be determined by the Owners and the Tenant.
e.
In the event the building is sold, X.X. Xxxxxx Electric has an option to rent the third bay
and back lot for a period of two (2) years, with an option of an additional two (2) years.
f. This Lease Agreement is based upon all credit reports showing satisfactory ratings.
All notices required to be given shall be in writing and mailed or delivered to the following
address:
TO LANDLORD:
|
00000 Xxxxxxxx Xxxxx Xxxx. | |
| Xxxxx 0 | ||
| Xxxxx Xxxxxx, XX 00000 | ||
TO TENANT:
|
00000 Xxxxxxxx Xxxxx Xxxx. | |
| Xxxxx 0 | ||
| Xxxxx Xxxxxx, XX 00000 |
IN WITNESS WHEREOF the said parties have hereunto signed their names and affixed their seals
this 1st day of September, 2004,
| LANDLORD | ||||||
/s/ Xxxx Xxxx
|
/s/ Xxxxxxx Xxxxxx | |||||
Witness |
||||||
| TENANT | ||||||
/s/ Xxxx Xxxx
|
/s/ Xxxxxxx Xxxxx | |||||
Witness |
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