GROUND LEASE BETWEEN HICKORY CROSSING, LLCLease Agreement |
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Exhibit 10.1
GROUND LEASE
BETWEEN
HICKORY CROSSING, LLC
and
CARROLLTON BANK as Tenant
Date: November 4, 2003
Property:
Hickory Crossing
Table of Contents
GROUND LEASE
THIS LEASE (the “ Lease ”), dated 11/4/2003, is made and entered into by and between HICKORY CROSSING, LLC, a Maryland limited liability company (the “ Landlord ”) having an office at 14 Back River Neck Road, Baltimore, Maryland 21221, and CARROLLTON BANK, a Maryland state chartered commercial bank (the “ Tenant ”) having an office at 344 North Charles Street, Suite 300, Baltimore, Maryland 21201-4301
INTRODUCTORY STATEMENT
Landlord is the owner of certain unimproved real property containing approximately 4,554 +/- acres, located in Hickory, Harford County, Maryland, which is identified as Lots 3, 5, 6 and 7, and outlined in green (the “ Commercial Center ”) on the Revised Final Plat, Division of Lot 3, Formerly the Land of A-Blair Syndicate, dated March 7, 2003, (the “Plat”) as prepared by Frederick Ward & Associates (“ Landlord’s Engineer ”), which Plat is attached hereto as Exhibit A and incorporated herein by reference. Also attached hereto as Exhibit A-1 is the Conceptual Development Plan for the Property (the “ Conceptual Development Plan ”), prepared by Landlord’s Engineer.
Landlord desires to lease to Tenant and Tenant desires to rent from Landlord a portion of the Commercial Center identified as Lot 3 on the Plat, containing approximately 38,515 +/- square feet of land area and approximately .82 +/- acres as outlined in red on the Plat (the “ Property ”) subject to and in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, Landlord leases to Tenant and Tenant rents from Landlord the Property; together with the right to use the Common Elements (as hereinafter defined) in common with others during the Term (as hereinafter defined) of this Lease, and any renewal or extension thereof. This Lease is made upon the following terms and conditions:
1. Definitions . As used in this Lease, the following terms are defined as follows:
1.1. Additional Rent – see Section 8.2.
1.2. Annual Rent –
1.3. Building - refers to the one-story masonry building of approximately [Illegible] +/- square feet to be constructed by Tenant at its cost on the Property, together with all alterations, additions, improvements, repairs, restorations and replacements thereof.
1.4. Commencement Date - the date of execution of this Lease by Landlord and Tenant.
1.5. Common Elements - The two (2) pylon signs (and the land immediately surrounding the same) to be provided and maintained by Landlord for the benefit of the Commercial Center.
1.6. Common E lements Operating Costs - See Section 9.2.
1.7. E nvironmental Laws - all applicable federal, state, or local law, ordinance, or regulation, as may be amended from time to time, including, but not limited to the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Air Act, and the Clean Water Act that regulate any hazardous or toxic substance, material, or waste and amendments thereto.
1.8. Extension Term - Sec Section 3.2.
1.9. Hazardous Materials - any hazardous or toxic substance, material, or waste, including, but not limited to, those substances, materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or such substances, materials and wastes regulated under any Environmental Laws.
1.10. Initial Term - See Section 3.1.
1.11. Landlord’s Delivery Date - the date on which Landlord delivers the Property to Tenant following substantial completion of Landlord’s Land Site Improvements. Landlord’s Engineer shall notify Tenant of such date in writing and such notification shall be conclusive in the absence of bad faith or fraud.
1.12. Landlord’s Land Site Improvements - those improvements, more particularly described in Exhibit B attached hereto and incorporated herein by reference, to be constructed by Landlord on or adjacent to the Property in accordance with the terms and conditions of this Lease.
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1.13. Landlord’s Notice Address - the following address for notices or such other address as Landlord may designate in writing from time to time:
Hickory Crossing, LLC c/o Kirk A. Salvo, Manager 14 Back River Neck Road Baltimore, Maryland 21221
With a Copy to:
David H. Cole, Esquire Law Office of Curtis C. Coon, LLC 305 West Chesapeake Avenue - Suite 105 Towson, Maryland 21204
1.14. Landlord's Payment Address - the following address for rent payments or such other address as Landlord may designate in writing from time to time:
Hickory Crossing, LLC 14 Back River Neck Road Baltimore, Maryland 21221
1.15. Landlord’s Property Site Improvements - the common pylon signs now or hereafter provided or constructed by Landlord that serve the Commercial Center.
1.16. Market Area - the greater Harford County, Maryland area.
1.17. Permitted Use - any lawful purpose subject to applicable zoning laws, provided, however, that in no event will Tenant, its successors, affiliates and assigns be permitted to use all or any portion of the Property for any of the following uses: (a) convenience store, delicatessen, dairy store, coffee shop, or coffee bar, bagel store, bakery, sandwich store selling cold sandwiches (such as a Subway), donut or similar shop, or a retail gasoline dispensing facility; (b) the sale of auto parts, auto accessories and/or auto supplies; (c) a drug store or business which sells or dispenses prescription drugs or for any collateral use (e.g. parking, drainage, or service drives) in support of a drug store or a business which serves or dispenses prescription drugs; (d) any use that is prohibited by a restrictive covenant (now or hereafter existing) contained in a separate lease or signed letter of intent for all or any portion of the Commercial Center between Landlord and another tenant, or prospective tenant, as the case may be; and (c) any other then existing uses by other tenants, sublessees, licensees or occupants within the Commercial Center. In no event shall Tenant be precluded from using the Property for all banking, residential mortgage lending and related regulatorily approved financial services permissible for banks and bank-affiliated companies; provided, however, that such related financial services do not violate any of the prohibited uses set forth in sections (a)-(e). If both Tenant and Landlord wish to provide a competing regulatorily approved related financial service, then the person first providing such service within the Commercial Center shall be entitled to exclusively provide such service within the Commercial Center.
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1.18. Regulatory Approval - the regulatory approval that Tenant is required to obtain from all applicable Federal and State of Maryland regulatory bodies in order to operate a branch bank office at the Property.
1.19. Rent Commencement Date - the earlier to occur of
a) The later of:
1) One Hundred Twenty (120) days after Commencement Date; or
2) One Hundred Twenty (120) days after Landlord’s Delivery Date; and
b) The date Tenant opens for business to the public at the Property.
1.20. Tenant Improvements - include the Building, sidewalks and curbs, building lighting fixtures and conduits, utility connections (including, without limitation, cable connections), paved parking and driveways, road gutters and landscaping on the Property, and all other improvements necessary for Tenant’s use of the Property (other than Landlord’s Land Site Improvements and Landlord’s Property Site Improvements) now or hereafter constructed on the Property by Tenant in the approximate location shown on Exhibit A-l .
1.21. Tenant’s Notice Address - the following address for notices or such other address as Tenant may designate in writing from time to time:
Carrollton Bank 344 North Charles Street - Suite 300 Baltimore, Maryland 21201-4301 Attention: Robert A. Altieri, President
With a copy to:
William C, Rogers, Jr., Esquire Rogers, Moore & Rogers 6 South Calvert Street Baltimore, Maryland 21202
1.22. Term - the Initial Term or the applicable Extension Term, whichever is then in effect.
2. Preconditions to Tenant’s Lease Obligations.
2.1. Tenant’s obligations under this Lease shall be conditioned upon the following:
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(a) Tenant may, but shall not be obligated to , have a title report prepared for the Property. If such title report indicates that Landlord is unable to convey a leasehold interest in the Property reasonably acceptable to Tenant, Tenant may terminate this Lease upon written notice to Landlord within one hundred twenty (120) days after the Commencement Date. If Tenant does not elect to terminate this Lease upon written notice to Landlord within such one hundred twenty (120) day period, this precondition will be deemed waived.
(b) Tenant may, but shall not be obligated to, have a survey of the Property prepared at Tenant’s sole cost and expense by a surveyor of Tenant’s choice within one hundred twenty (120) days after the Commencement Date. If such survey shows encroachments onto or from the Property, violations or restrictions of record, boundary line conflicts, or other information that Tenant reasonably finds objectionable, then Tenant may terminate this upon giving written notice to Landlord within one hundred twenty (120) days after the Commencement Date. If Tenant does not elect to terminate this Lease upon written notice to Landlord within such one hundred twenty (120) day period, this precondition shall be deemed waived.
(c) Tenant may, but shall not be obligated to, commission an environmental assessment of the Property, which assessment shall be completed within one hundred twenty (120) days after the Commencement Date. If the assessment indicates the presence of any Hazardous Materials or if the assessment indicates that further assessment is reasonably warranted due to the possible presence of Hazardous Materials, Tenant may terminate this Lease upon giving written notice to Landlord within one hundred twenty (120) days after the Commencement Date. If Tenant does not elect to terminate this Lease upon written notice to Landlord within such one hundred twenty (120) day period, this precondition shall be deemed waived.
(d) Tenant may, but shall not he obligated to, have soil borings prepared for the Property within one hundred twenty (120) days after the Commencement Date. If such soil borings indicate that Tenant is unable to construct and use the Tenant Improvements on the Land as intended to be designed by Tenant and the Tenant Improvements cannot be redesigned to Tenant’s satisfaction to accommodate the soil conditions, Tenant may terminate this Lease upon written notice to Landlord within one hundred twenty (120) days after the Commencement Date. If Tenant does not elect to terminate this Lease upon written notice to Landlord within such one hundred twenty (120) day period, this precondition shall he deemed waived.
(e) Tenant, at its sole cost and expense, shall file for and thereafter diligently pursue Regulatory Approval, provided, however, that Regulatory Approval shall be given, if at all, within one hundred twenty (120) days after the Commencement Date. Tenant shall notify Landlord in writing (the “Regulatory Approval Notice”) promptly after Tenant receives Regulatory Approval. If Regulatory Approval is denied, this Lease shall be of no further force and effect, and neither party shall have any further rights or obligations hereunder. The foregoing notwithstanding, if Tenant has not received Regulatory Approval within one
5 hundred (120) days following the Commencement Date, this Lease will be deemed terminated unless the parties otherwise agree.
2.2. Tenant is hereby granted the right and privilege to enter upon the Property and to perform such tests and take such samples and measurements as required to satisfy the conditions precedent set forth in this Section 2; provided that Tenant shall restore the Property to its condition prior to Tenant’s entry thereon; and provided further that Tenant shall indemnify and hold Landlord harmless for any claim of loss or damage arising out of Tenant’s entry onto the Property. Tenant’s obligations hereunder will survive termination of this Lease. Tenant’s entry upon the Property under this Section 2.2 shall not be deemed possession by the Tenant.
2.3. If Tenant gives written termination notice to Landlord in a timely manner because of any item not acceptable to it under Section 2.1 above, this Lease shall be of no further force or effect, and neither party shall have any further rights or obligations hereunder except those rights or obligations that expressly survive termination of this Lease.
3. Lease Term .
3.1. Initial Lease Term. The initial term (the “ Initial Term ”) of this Lease shall commence on the Commencement Date and shall expire at the end of the month that is twenty (20) years after the Rent Commencement Date unless sooner terminated in accordance with the provisions hereof. After the Rent Commencement Date and upon Landlord’s request, Tenant shall promptly enter into a written agreement with Landlord, mutually acceptable and in recordable form, stipulating the Commencement Date, the Rent Commencement Date, and expiration date of the Initial Term.
3.2. Extensions. Provided Tenant is not then in monetary or material non-monetary default of this Lease beyond any applicable cure period, Tenant may extend this Lease for four (4) additional periods of five (5) years each (each an “ Extension Term ”) on the same terms and conditions as provided in this Lease, by delivering written notice of the exercise thereof to Landlord not later than six (6) months before the expiration of the then current Term. On or before the commencement date of the Renewal Term in question, at either party’s request, Landlord and Tenant shall execute an amendment to this Lease confirming the Extension Term on the same terms and conditions as provided in this Lease, except as follows:
(a) After the last scheduled Extension Term hereunder, Tenant shall have no further extension options unless expressly granted by Landlord in writing; and
(b) Landlord shall lease to Tenant the Property in its then-current condition.
Tenant’s rights under this Section 3.2 shall terminate if (i) this Lease or Tenant’s right to possession of the Property is terminated, or (ii) Tenant fails to timely exercise its option under this Section 3.2, time being of the essence with respect to Tenant’s exercise thereof.
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3.3 Any holding over by Tenant after the expiration of the Initial Term or Extension Term, as applicable, without the consent of Landlord, shall be construed to be a tenancy from month-to-month at one and one-half (1.5) times the Annual Rent herein specified pro-rated on a monthly basis, and shall otherwise he on the terms and conditions herein specified, so far as applicable.
4. Landlord’s Construction and Other Site Obligations .
4.1. Landlord has subjected its interest in the Property to the Declaration of Covenants, Conditions and Restrictions (substantially in the form attached hereto as Exhibit C , the “ Declaration ”). The parties acknowledge and agree that this Lease is subject to the terms, provisions and conditions of the Declaration, as amended. Provided Tenant is not in default of any of its monetary or non-monetary obligations beyond any applicable cure period, Landlord shall not modify or amend the Declaration so as to limit Tenant’s material rights or increase any of Tenant’s material obligations without the Tenant’s consent during the Term, which consent shall not be unreasonably withheld or delayed.
4.2. The Final Development Plan to be attached as Exhibit A-2 , depicts the site improvements to be constructed by both Landlord and Tenant. Landlord shall make application to the appropriate governmental agencies, quasi-governmental agencies and utility companies for site plan approval and all other permits and approvals necessary to commerce construction of Landlord’s Property Site Improvements and Landlord’s Land Site Improvements. Landlord shall use commercially reasonable efforts to obtain such permits, and to substantially complete the construction of Landlord’s Land Site Improvements within one (1) year following the Commencement Date.
4.3. Substantial Completion. For all purposes of this Lease, the phrase “ substantial completion of Landlord’s Land Site Improvements ” shall be deemed to have occurred when Landlord’s Engineer furnishes a certificate to Landlord and Tenant certifying that the Landlord’s Land Site Improvements are sufficiently complete to enable Tenant to commence construction of Tenant Improvements, which certification shall be conclusive, in the absence of bad faith or fraud.
4.4. Termination. If Landlord’s Delivery Date does not occur on or before one (1) year following the Commencement Date, the date may be extended upon written notice by Landlord up to one hundred eighty (180) days, for any delays caused by force majeure (as defined herein). If Landlord’s Delivery Date does not occur within such time period (as may be extended), Tenant shall have the right to terminate this Lease by notice to Landlord sent any time before Landlord’s Delivery Date (as may be extended) occurs. In such event, neither party shall have any further rights or obligations hereunder except for those obligations that expressly survive termination.
5. Tenant’s Construction Obligations .
5.1. General. Tenant shall construct or cause to be constructed at Tenant’s sole cost and expense the Tenant Improvements in a good and workmanlike manner. All
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construction by Tenant shall be done pursuant to plans and specifications therefor prepared by a licensed architect or engineer. All such plans and specifications for the Tenant Improvements shall be subject to Landlord’s prior written approval, which approval shall not be unreasonably withheld or delayed. The foregoing notwithstanding, Landlord’s approval will not be required for changes in the construction Plans by Tenant, the estimated cost of which does not exceed Twenty-Five Thousand ($25,000.00) Dollars. Tenant shall perform its work without interfering with other construction on the Property or within the Commercial Center and shall cooperate with the contractors of Landlord and other tenants within the Commercial Center. Tenant shall bear all risk of theft, loss or damage to its personal property, including building materials stored on the Property or incorporated into the Tenant Improvements, from whatsoever cause, unless such loss or damage is due to the negligence or willful misconduct of Landlord.
5.2 . Timing Within ninety (90) days after the Commencement Date, Tenant shall prepare, or cause to be prepared, complete plans and specifications for the Tenant Improvements (the “ Plans ”) and shall submit the same to Landlord for Landlord’s approval, which approval shall not be unreasonably withheld or delayed. If Landlord objects to Tenant’s Plans, Tenant shall revise the Plans in an effort to respond to Landlord’s objections and resubmit the Plans within twenty (20) calendar days thereafter. If Landlord does not respond or object within ten (10) days after Tenant’s initial submission of the Plans or within five (5) Business Days after Tenant’s resubmission of the Plans, the Plans will be deemed approved. Within ten (10) days after (i) the Plans for the Tenant Improvements having been approved or deemed approved, Tenant shall make application to the applicable jurisdiction for a building permit (the “ Tenant’s Building Permit ”) and to all other appropriate governmental agencies, quasi-governmental agencies and utility companies for all permits and approval necessary to construct the Tenant Improvements. Tenant shall substantially complete construction of the Tenant Improvements within one hundred twenty (120) days after Landlord’s Delivery Date. As used herein, the phrase “ substantial completion of the Tenant Improvements ” shall mean that construction of the Tenant Improvements is sufficiently complete to permit Tenant to occupy and use the Property for Tenant’s business operations notwithstanding the existence of certain minor items that are incomplete or unfinished ( i.e ., “ punch list items ”). Tenant hereby grants Landlord permission to assist Tenant with regard to the processing of Tenant’s applications for the Tenant’s Building Permit and all other permits or approvals, except the Regulatory Approval, which shall be the sole responsibility of Tenant.
6. Use of Property .
6.1. Landlord covenants as follows:
(a) public water (excluding Tenant’s water meter), electric power, and sewer service exist or will be stubbed by Landlord to a central point located along Hoagie Drive, contiguous to the Property;
(b) appropriate storm water management serves or will serve the Property and adequately sized storm drain pipe will be provided to the lease line of the Property to satisfy Tenant’s storm water management and drainage requirements;
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(c) the Property is zoned as B-3 and a branch bank with drive-in facilities is a permitted use in this zoning classfication;
(d) Landlord has not acquired or received any information that would raise reasonable doubt about the right of Tenant to use the Property for a branch bank including a drive-in facility; and
(e) Landlord has not and will not take any action to request a change in the zoning of the Property that would preclude the use of the Property for a branch bank including a drive-in facility.
6.2. Tenant may initially use the Property for the Permitted Use.
6.3. Tenant shall promptly comply with all laws, rules, regulations, requirements, notices of governmental bodies and public authorities and the reasonable recommendations of the local board of fire underwriters rating bureau or other fire insurance rating organization for the Market Area and of the Landlord’s insurers, pertaining to the Property, the improvements thereon or their use, occupancy or maintenance. Landlord shall promptly comply with all laws, rules, regulations, requirements, notices of governmental bodies and public authorities and the reasonable recommendation of the local board of fire underwriters rating bureau, or other fire insurance rating organization for the Market Area pertaining to the Common Elements.
6.4. Tenant will comply with all provisions of the Americans With Disabilities Act (the “ ADA ”) with respect to the Property, and Landlord shall comply with all provisions of the ADA, if any, with respect to the Common Elements.
7. Limitation on Multiple Banking Uses .
7.1. Except as otherwise specifically set forth in this Lease, from and after the date of this Lease and for so long thereafter as Tenant is not in default beyond any applicable cure period hereunder, Landlord shall not lease or sell space in the Commercial Center to another commercial bank, savings bank, savings and loan association, credit union, residential mortgage operation, or regulatorily approved related financial service (the “ Use Restriction ”); provided, however, that if Tenant ceases to use the entire Property, excluding any expressly permitted license or sublease of a portion thereof, for a period in excess of six (6) consecutive months (not including time used for repairing a casualty) for commercial banking, residential mortgage lending and regulatorily approved related financial services permissible for banks and bank-affiliated companies, the Use Restriction shall terminate. The Use Restriction shall not include automated teller machines installed in the interior of other buildings of the Commercial Center by other owners or tenants of such buildings.
7.2. Landlord and Tenant agree that in the event Landlord violates the foregoing Use Restriction, Tenant’s remedies shall include injunctive relief and/or actual damages and any other remedy available to it at law or in equity. The foregoing notwithstanding, in no event shall Tenant be entitled to consequential or punitive damages.
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8. Rent .
8.1. Commencing on the Rent Commencement Date and continuing throughout the Initial Term, Tenant shall pay Annual Rent in equal monthly installments, in advance, on the first day of each calendar month. If the Rent Commencement Date falls on a day other than the first day of a calendar month, then the Annual Rent for any fractional month during the Term shall be apportioned on a daily basis based upon a thirty (30) day month.
8.2. Whenever under the terms of this Lease any sum of money is required to be paid by Tenant in addition to the Annual Rent herein reserved, said sum shall be deemed to be additional rent (“ Additional Rent ”) and collectible as rent whether or not so designated. All Annual Rent and Additional Rent shall be paid without prior demand, except as provided otherwise by the terms of this Lease, and without any setoff, abatement or deduction of any nature whatsoever. Any payment by Tenant of a lesser amount of Annual Rent or Additional Rent than is then due shall be applied to such category of arrearage as Landlord may designate irrespective of any contrary designation by Tenant and to the oldest, most recent or other portion of the sum due as the Landlord may determine; and Landlord’s acceptance of any such partial payment shall not be deemed an accord and satisfaction, and shall be without prejudice to Landlord’s right to pursue any other remedies.
8.3. All rent under this Lease shall be paid to Landlord at Landlord’s Payment Address.
9. Common Elements Operating Costs .
9.1. Tenant shall pay to Landlord Tenant’s proportionate share of the actual Common Elements Operating Costs during the Term in accordance with this Section 9.
9.2. The term “ Common Elements Operating Costs ” means any and all actual out-of-pocket expenses incurred by Landlord in operating the Common Elements including without limitation, (i) payment for personal property taxes and property insurance for the Common Elements, (ii) the costs of lighting, painting, maintaining, repairing and replacing the common pylon signs and (iii) the costs incurred by Landlord, if any, for maintenance of the storm water management system and common lines thereto.
9.3. The Tenant’s proportionate share of the actual Common Elements Operating Costs shall be the percentage that the square footage of the Property bears to the total square footage of the Commercial Center, which will be calculated when Landlord’s Engineer determines the actual square footage of the Property in accordance with the granting clause on page 1 of this Lease and memorialized in the Amendment. Within one hundred and twenty (120) days after the end of each calendar year, Landlord shall furnish Tenant with a statement (in reasonable detail) of the actual Common Elements Operating Costs incurred by Landlord or its assignees during such prior calendar year prepared in accordance with sound accounting practices. Tenant shall pay its proportionate share of the actual Common Elements Operating Costs within thirty (30) days after receipt of such statement.
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9.4. On fifteen (15) days written notice and during normal business hours at Landlord’s place of business, Tenant shall have the right to audit, at Tenant’s cost, the Landlord’s books and records for the immediately preceding calendar year to verify the actual Common Elements Operating Costs. Any errors disclosed by the review shall be promptly corrected by Landlord; provided, however, that if Landlord disagrees with any such claimed errors, Landlord shall have the right to cause another review to be made by an auditor of Landlord’s choice and at Landlord’s sole expense. In the event the results of the review of records (taking into account, if applicable, the results of any additional review caused by Landlord) reveal that Tenant has overpaid obligations for a preceding period, the amount of such overpayment shall be credited against Tenant’s subsequent installment(s) of Annual Rent, Additional Rent or other payments next coming due to Landlord under the Lease. In the event that such results show that Tenant has underpaid its obligations for a preceding period, the amount of such underpayment shall be paid by Tenant to Landlord within thirty (30) days after Tenant’s receipt of Landlord’s demand therefor. In the event any such audit shall reveal an overcharge to Tenant in excess of ten percent (10%), in the aggregate, of the actual amount that should have been charged to Tenant for the subject year, Landlord shall reimburse Tenant for the reasonable cost of such audit and the overcharge within thirty (30) days after demand.
10. Taxes and Assessments .
10.1. During the Term, Tenant shall bear, pay and discharge all real estate taxes, special and benefit assessments, minor privilege charges, metropolitan district charges and other public charges levied or imposed by any govermental agency upon or with respect to ownership, use or occupancy of the Property (including, without limitation, the land and Tenant Improvements on the Property).
10.2. If at any time during the Term of this Lease under the laws of the United States, State of Maryland, or any political subdivision thereof in which the Property are situated, a tax or excise on rent or any other tax, however described, is levied or assessed by any such political body against Landlord on account of rentals payable to Landlord hereunder, such tax or excise shall be considered for the purpose of this Lease a real property tax. In addition, in the event that real estate taxes are withdrawn, in whole or in part, and any substitute tax is made therefore, such tax shall in any event for the purpose of this Lease be considered a real estate tax, regardless of the source from which it is collected.
10.3. In the event the taxing authorities include in such taxes the value of any machinery, equipment, fixture, inventory or other personal property or assets of Tenant, Tenant agrees to pay before delinquency, the entire amount of the taxes attributable to such items in addition to, but not in duplication of, the taxes referred to above.
10.4. All sums payable by Tenant under this Section 10 shall be paid at least thirty (30) days prior to accrual of interest of penalty for nonpayment and Tenant shall furnish Landlord with evidence of payment in the form of official tax receipts promptly after payment. In any case in which Tenant contests in good faith any such imposition Tenant may defer payment to the extent that it is necessary and legally possible to defer the same in order to make such contest and diligently pursue the same, but in such event it shall be a condition of Tenant’s
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privilege to defer any payment, that Tenant shall, if so requested by Landlord, furnish Landlord, with a bond, reasonably satisfactory to Landlord as to surety, in an amount and upon such conditions as shall reasonably be necessary to protect the interest of Landlord against any loss or impairment resulting from such delay.
10.5. The parties shall take such reasonable action as may be necessary or appropriate in order that proposed assessment notices and separate tax bills for the Property are sent by taxing authorities directly to Tenant, including, if necessary, a designation of Tenant’s address as address of record for the owner for tax assessment and billing purposes. Tenant shall promptly furnish to Landlord copies of all such proposed assessment notices and separate tax bills that Tenant receives from the taxing authorities. Tenant shall have the right to contest the validity and/or seek a reduction of said assessment at Tenant’s sole cost and expense. Tenant shall indemnify Landlord, for the amount of any interest, penalty and additional cost (including reasonable attorney’s fees) payable by Landlord as a result of Tenant’s contest of the validity of or attempt to reduce such assessment. Tenant shall have the right to institute such proceedings in the name of the Landlord as Tenant may deem necessary to contest the validity or seek a reduction of said assessment; provided that, if it is necessary to institute said proceedings in the name of the Landlord, the Landlord shall be given as much prior written notice of said proceedings as reasonably practicable. Landlord will, at Tenant’s sole cost and expense, execute and deliver to Tenant such documents and/or information as Tenant may reasonably require in connection with Tenant’s contest of the validity of or attempt to reduce said assessment. Any refunding resulting from a contest by Tenant (as well as any refund resulting from proceeding instituted by Landlord), shall be applied and paid first to reimburse Tenant or Landlord for the costs and expenses of the proceeding, including reasonable attorney’s fees. If the Property is separately assessed, the remainder of the refund shall belong to Tenant.
10.6. Nothing contained in this Lease shall be deemed to include within the definition of the term “real estate taxes” any tax such as inheritance, estate, succession, gift and/or federal or state income taxes that are or may be imposed upon Landlord.
11 . Utilities .
11.1. Beginning on the date that Tenant enters the Property for construction of Tenant Improvements, Tenant shall pay, when due, all hook-up and consumption charges for all utility services furnished to the Property, including, but without limitation, heat, air conditioning, gas, electricity and telephone, which services shall all be separately metered to Tenant (at its cost). Tenant shall, at its cost, install and use the utilities serving the Property in accordance with the rules and regulations of the public or private utility company or the governmental agency supplying the same. Tenant shall not be compelled to hook-up and use any utility merely because it is available, provided Tenant identifies in its Plans which utilities Tenant desires to serve the Property.
11.2. Landlord shall not be liable to Tenant for damages because of interruptions in storm water management or any other utilities unless such i | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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